Opinion
October 25, 1962
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Judgment unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, with costs to the respondent. Memorandum: Plaintiff and defendant were not residents of the City of Buffalo but were both residents of Erie County. Defendant, however, was employed in an establishment in the City of Buffalo. He was sued in County Court. Under subdivision 5 of section 1474 of the Civil Practice Act, costs are not recoverable by a plaintiff in either Supreme or County Court in an action brought therein where the amount recovered is less than $250 if the action could have been brought in the City Court of Buffalo. We have held heretofore that as to an individual so circumstanced as the defendant herein, the City Court of Buffalo had jurisdiction ( Orlikowski v. Strash, 16 A.D.2d 873). No costs can be recovered by the successful plaintiff in the County Court action. The judgment should be reduced by the sum of $67.75 costs and interest thereon and as so reduced affirmed.