#### Isaac Moraff, Respondent, *v.*Samuel Kohn, Appellant.

First Department,

July 10, 1913.

Costs—recovery of less than $1,000 in Supreme Court, county of Mew York—Code of Civil Procedure, section 3338, construed.

The purpose of subdivision 5 of section 3238 of the Code of Civil Procedure, denying costs in actions in the county of Mew York where the action could be brought in the City Court or County Court of Kings, if the plaintiff recovers less than $1,000, was to compel a resident plaintiff of the county of Mew York to bring his action in the City Court if the process of the court could be served on the defendant in the county of Mew York. The question as to whether process could have been served upon the defendant in the county of Mew York depends upon whether service was in fact made in that county, and the statute neither requires nor permits any other inquiry with respect to whether service of the City Court process could have been made.

Hence, a plaintiff in the Supreme Court of the county of Mew York, suing for assault, who served the defendant in the county of Kings, where he resided and had a place of business, is entitled to costs, although the recovery is less than $1,000, even though the defendant had another place of business in the county of Mew York.

Appeal by the defendant, Samuel Kohn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1913, directing the county clerk óf the county of New York to tax costs in favor of the plaintiff.

*John Bogart [Isidore Weckstein*with him on the brief], for the appellant.

*Gaston Rosenstiel,*for the respondent.

Laughlin, J.:

This action was brought to recover damages for an assault alleged to have been made upon the plaintiff by the defendant, and the plaintiff recovered a verdict of $250, upon which he was about to enter judgment, but his application to have his costs taxed was refused by the county clerk upon the ground that the action could have been brought in the City Court of the City of New York or the County Court of Kings county and *649that, therefore, by virtue of the provisions of section 3228 of the Code of Civil Procedure he was not entitled to costs. The summons was not served upon the defendant in the county of New York; but service was made upon him in the county of Kings, in which county he resided and had a place of business. The defendant also had a place of business in the county of New York, and it was, therefore, contended that he might have been served in the county of New York, and that if so, under the decision of this court in *Putnam’s Sons*v. *Pickett*(152 App. Div. 814), the plaintiff was not entitled to tax costs. In that case, as in this case, the defendant had *not*been served within the county of New York, and for that reason we decided that the plaintiff was not precluded by section 3228, subdivision 5, of the Code of Civil Procedure from taxing costs. One sentence of the opinion, however, is not strictly accurate, and it has doubtless misled the county clerk and given rise to this appeal. It is stated in the opinion that the purpose of the amendment to the section in question in 1910, “was to compel a resident plaintiff of the county of New York to bring his action in the City Court if the process of that court could be served on defendant in the county of New York.” We should have added that the question as to whether process could have been served upon the defendant in the county of New York is made to depend, ■under this section of the Code of Civil Procedure, on whether service was in fact made in the county óf New York; and neither requires nor permits any other inquiry with respect to whether service of City Court process could have been made. This section of the Code of Civil Procedure prior to its amendment had been construed as precluding the right of a plaintiff in an action in the Supreme Court in the county of New York, or in the county of Kings, who has not recovered more than $500 to tax costs, where, excepting for the amount for which judgment was demanded, the action could have been brought in the City Court of the City of New York or in the County Court of the county of Kings, and where service was made in either county. *(Ponce de Leon*v. *Brooklyn Heights R. R. Co.,*125 App. Div. 752.)

The section as amended is as follows: “In all actions hereafter brought in the Supreme Court, triable in the county of *650New York, which could have been brought, except for the amount claimed therein, in the City Court of the City of New York, and in which the defendant shall have been served with process within the county of New York, the plaintiff shall recover no costs or disbursements unless he shall recover one thousand dollars or more. In all actions hereafter brought in the Supreme Court, triable in the county of Kings, which could have been brought, except for the amount claimed therein, in the County Court of Kings county, and in which the defendant shall have been served with process within the county of Kings, the plaintiff shall recover no costs or disbursements unless he shall recover five hundred dollars or more.” (Laws of 1910, chap. *574,*amdg. Code Civ. Proc. § 3228, subd. 5, as added by Laws of 1904, chap. *557.)*

The purpose of the amendment of 1910 manifestly was to relieve a party from being obliged to bring his action in a county other than that in which he resides or run the risk of losing his right to tax costs, which was the effect of the decision in *Ponce de Leon*v. *Brooklyn Heights R. R. Co. (supra),*and to preclude him from taxing costs *only*where his recovery is for $1,000 or less if in New York comity, and $500 or less if in Kings county, and the defendant has *in fact*been served in the county in which the action in the Supreme Court is brought.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order affirmed, with ten dollars, costs and disbursements.