Opinion
May 17, 1918.
Bruce R. Duncan, for the appellant.
Samuel Widder, for the respondent.
An additional subdivision (5) was added to section 3228 of the Code of Civil Procedure, which, as amended, declared that if the defendant shall have been served with process within the city of New York, the plaintiff shall recover no costs or disbursements, unless he shall recover $250 or more. But there was added: "The fact that in any action a plaintiff is not entitled to costs under the provisions of this subdivision shall not entitle the defendant to costs under the next following section." (Laws of 1904, chap. 557; Laws of 1910, chap. 574; Laws of 1914, chap. 80; Laws of 1916, chap. 50.) The following section (3229) is taken from the old Code of Procedure, section 305, where the pivot was a recovery of fifty dollars. It gave defendant costs as of course, unless plaintiff was entitled to costs as prescribed in the preceding section.
It seems clear that in the County Court of Kings county the penalty for not recovering $250 is to lose costs, but not to pay costs. (See Streat v. Wolf, 132 App. Div. 872.)
I advise, therefore, that the order of the County Court of Kings county be reversed, with ten dollars costs and disbursements, and that defendant's motion be denied.
JENKS, P.J., THOMAS, MILLS and BLACKMAR, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and defendant's motion denied.