Opinion
June 4, 1909.
Carl S. Stern, for the appellant.
Charles Blandy, for the respondent.
Plaintiff sued in this court in New York county for damages for breach of contract. He recovered six cents damages. There are two provisions of the Code of Civil Procedure under which he is not entitled to costs.
Subdivision 4 of section 3228 provides that in such an action he is not entitled to costs unless he recovers $50 or more. Subdivision 5 of the same section forbids his recovery of costs unless he shall recover $500 or more, the action being one which, except for the amount claimed, might have been brought in the City Court. The question presented by this appeal is whether or not the defendant is entitled to costs under section 3229 which provides that the defendant is entitled to costs in such an action, unless the plaintiff is entitled to costs. But for the last sentence of subdivision 5 of section 3228 defendant would be entitled to costs because the plaintiff's recovery is less than fifty dollars. ( Mayor v. Best, 19 App. Div. 58.) The doubt in the case arises from the last sentence of subdivision 5 of section 3228, which reads: "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." It is to be observed that the sentence just quoted applies only to cases in which the plaintiff is deprived of costs under the terms of the subdivision of which it forms a part. It is clearly intended to apply only in cases in which the refusal to allow costs to the plaintiff results from the application of that subdivision. It should be read as if it provided that the fact that in any action a plaintiff is not entitled to costs solely because of the provisions of the subdivision shall not entitle the defendant to costs. In this case the defendant's claim to costs does not rest solely upon subdivision 5 of section 3228, but is also secured to him by section 3229. The practical result of this construction is that in an action like the present the defendant is entitled to costs if the plaintiff recovers less than fifty dollars, but is not so entitled if the plaintiff recovers more than fifty dollars, but less than five hundred.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for retaxation granted.
INGRAHAM, McLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.