Opinion
May, 1905.
Bert T. Baker, for the appellant.
E.H. Bostwick, Myron N. Tompkins and Mynderse Van Cleef, for the respondent.
The plaintiff brought action in Justice's Court and recovered judgment against the defendant. On appeal to the County Court the judgment was reversed as against the weight of evidence, with costs against plaintiff, and a new trial was directed to be had before a designated justice on a day specified. The parties appeared in accordance with such direction for the retrial, and the defendant objected to the plaintiff being heard, on the ground that she had not paid the costs of reversal and was, therefore, stayed. The justice sustained the objection and rendered judgment dismissing the complaint. From this judgment the plaintiff appealed to the County Court, and the judgment was reversed but without costs. It is from that part of the order of reversal denying costs that plaintiff now appeals.
The ground upon which costs were denied by the County Court was that the error was one in fact not affecting the merits, and, therefore, brought the allowance of costs within its discretion.
It is quite apparent that the error committed by the justice in holding that the plaintiff was stayed for non-payment of costs, and because of which he dismissed plaintiff's complaint, was not one of the errors "in fact" contemplated by section 3066 of the Code of Civil Procedure which permits the County Court, when reversal is upon such ground, to give or withhold costs. The words "error in fact" as used in the Code of Civil Procedure (§§ 3057, 3066) have reference to some occurrence which affects the validity of the trial — such as service of process by one not authorized, infancy of a party for whom no guardian ad litem had been appointed, relationship of the justice, misconduct of the jury and the like. ( Fitch v. Devlin, 15 Barb. 47; Rose v. Smith, 4 Cow. 17; Sammis v. Nassau Light Power Co., 91 App. Div. 7.) They have no reference to an erroneous ruling, or finding upon the evidence by the justice or a jury. ( Adsit v. Wilson, 7 How. Pr. 64; Kasson v. Mills, 8 id. 377.)
The payment of the costs of the first reversal was not imposed as a condition for the granting a new trial before another justice. A formal judgment was entered fixing their amount, and permitting execution to issue for their collection. The provisions of section 779 of the Code of Civil Procedure respecting a stay for non-payment of certain costs did not apply.
The action of the justice in holding that plaintiff was stayed and, therefore, dismissing her complaint on the attempted retrial, was a plain error of law which required a reversal for the legal error committed. On an appeal for such an error the County Court has no discretion with respect to costs. The successful party is entitled to costs as a matter of right. (Code Civ. Proc. § 3066.)
The order was not discretionary and was wrong, and should be modified by reversing that part which disallowed costs to either party and inserting therein an allowance of costs to appellant; and as so modified should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order modified by striking out the disallowance of costs and providing in lieu thereof an allowance of costs to the appellant, and as so modified affirmed, with ten dollars costs and disbursements to appellant.