Opinion
March 2, 1925.
Swift Potter [ Meredith Potter of counsel], for the plaintiff.
Percy S. Landsdowne, for the defendants.
The question before the court is whether or not the plaintiff, who demanded judgment in his complaint for $1,395 and interest, and recovered $115 on the trial, is entitled to costs under section 1474, subdivision 7, of the Civil Practice Act, which reads as follows: "The plaintiff shall recover no costs or disbursements * * *. 7. In an action brought, triable in the Supreme or County Court, of Erie county, which could have been brought, except for the amount claimed therein, in the City Court of Buffalo, and in which the defendant shall have been served with process within the city of Buffalo, unless he shall recover two hundred and fifty dollars or more."
The defendant is a resident of, and conducts a theater business in, the city of Buffalo, and the process in this action was served on him in said city, so that, "except for the amount claimed therein," the City Court of Buffalo would have complete jurisdiction over the defendant and the cause of action, and the crucial point is whether the words of limitation "except for the amount claimed therein," apply to the demand for judgment or to the amount recovered.
The object of the limitation is to discourage the bringing of actions in the Supreme or County Court which might be brought in the City Court. ( Patterson v. Woodbury, etc., 117 A.D. 600, 601.)
"In the interpretation of statutes the primary consideration of the courts is to ascertain and give effect to the intent of the legislature." (1 McKinney's Consol. Laws, 106, Statutes and Statutory Construction, § 52); Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415; Wiley v. Solvay Process Co., 215 id. 584, 588.) If the demand for judgment and not the amount recovered is to determine the right to costs, the purpose of the statute could be defeated, in all cases where the damages are unliquidated, by demanding judgment for an amount beyond the jurisdiction of the City Court of Buffalo.
The question of the jurisdiction of the City Court of Buffalo over the defendant is settled by the fact that the summons and complaint were served upon him in said city. ( Moraff v. Kohn, 157 A.D. 648.)
The cases construing the various subdivisions of section 3228 of the Code of Civil Procedure (now section 1474 of the Civil Practice Act) are all decided upon the theory that the amount recovered determines whether costs are to be awarded or withheld. ( Streat v. Wolf, 132 A.D. 872; Girbekian v. Costikyan, 126 id. 812; Patterson v. Woodbury, etc., 117 id. 600, 601; Lipshen v. Epstein, 183 id. 806.)
In the present case the plaintiff is not entitled to costs ( Loncz v. International Railway Co., 123 Misc. 675), and an order may be entered to that effect.