Mattes v. Pause

19 N.Y.S. 222, 47 N.Y. St. Rep. 446, 22 N.Y. Civ. Proc. R. 41

• Court: New York Court of Common Pleas
• Decided: March 26, 1892
• Status: Published

Opinion

Gieqerioh, J.

The provisions of the Code of Civil Procedure respecting costs (chapter 21, tits. Í-3) apply to actions tried in one of the courts specified in subdivision 4 of section 3347, namely, the supreme court, a superior city court, the marine court of the city of New York, ora county court, (Code Civil Proc. § 3347, subd. 13;¹) and are not limited to actions commenced in one of such courts, and triable therein, (Combs v. Combs, 25 Hun, 279, reversing 1 Civil Proc. R. 298; 62 How. Pr. 304') It follows that the costs of this action, which was originally brought in a district court of this city to recover damages for a personal injury, and removed to this court, must be awarded and taxed pursuant to the above-cited provisions of the Code. The eases cited by the learned counsel for the plaintiff, namely, Druckenmiller v. Shoninger, (Com. Pl. N. Y.) 8 N. Y. Supp. 482; Latteman v. Fere, 11 Civil Proc. R. 217; Salter v. Parkhurst, 2 Daly, 240,—have no application, as they merely relate to the status of an action commenced in a district court after its removal to this court. The plaintiff having recovered less than $50, she defendants are entitled to costs. Kaliski v. Railroad Co., (Com. Pl. N. Y.) 15 N. Y. Supp. 519, (Daly, C. J.;) Rieger v. Watch Case Co., (City Ct. Brook.) 13 N. Y. Supp. 788. The application of the plaintiff for a retaxation of the costs must therefore be denied.

1 Code Civil Proc. § 3347, provides: “The application and effect of certain portions of this act are declared and regulated as follows: Except that, where a particular provision, included within a chapter or portion of chapter specified in a subdivision of this section expressly designates the courts, persons, or proceedings affected thereby, that provision is deemed exclusive from the application and effect prescribed in the provision. * * * (4) The remainder of chapter fifth, and the whole of chapter sixth, apply only to an action commenced on or after the first day of September, eighteen hundred and seventy-seven, in the supreme court, a superior city court, the marine court of the city of New York, or a county court. * * * (13) In chapter twenty-first, titles first, second, and third, apply only to an action in one of the courts specified in subdivision fourth of this section. ”