Weltman v. Posenecker

18 Misc. 599, 42 N.Y.S. 699

• Court: City of New York Municipal Court
• Decided: December 15, 1896
• Status: Published

Opinion

O’Dwyer, J.

The plaintiff was permitted to sue in forma pauperis in an action to recover damages for personal injury sustained through negligence of the defendant, and on the trial recovered a verdict for $25.

Section 461 of the Code of Civil Procedure provides that a person so admitted to sue may prosecute his action-without paying f cesto any officer, and if judgment is rendered against him or his complaint is dismissed, costs shall not be awarded against him.

In this instance the complaint was not dismissed, nor was judgment rendered against plaintiff. On the contrary, she recovered ai verdict.

The action having been brought to recover damages for personal injury sustained through defendant’s negligence, the defendant is entitled to costs where .the recovery is for less than $50. Rieger v. Fahy’s Watch Co., 37 N. Y. St. Repr. 402.

Does the fact that the plaintiff has been permitted to sue in forma pauperis protect her from the imposition of costs in this case? We think not.

The Justices’ Courts have jurisdiction in actions of this character, and where the damages are less than $50 are the proper tribunals in which to maintain them.

Section 461 simply provides for the prosecution of the action without payment of fees to any officer, and where the complaint is dismissed or judgment rendered against plaintiff, costs shall not be awarded. ...

The section makes no provision regarding costs where the plaintiff is wholly or partially successful, and we are of opinion that section 3228 applies, and that where a poor person is wholly or. partially successful, costs will follow as in an action by an ordinary litigant. -

The order should be affirmed, with costs,

Eitzsimoks, J., concurs.

Order affirmed, with costs.