(51 Misc. Rep. 93.)

#### SHEPARD v. CAMPBELL.

(Onondaga County Court.

June, 1906.)

Costs—On Appeal.

Defendant appealed from a judgment of the justice and the County Court vacated an attachment issued in the action and affirmed the judgment. On appeal by plaintiff, the Appellate Division affirmed the judgment with costs. *Held,*that defendant was entitled to the usual costs on appeal from the judgment.

[Ed. Note.—For cases in point, see voi. 13, Cent. Dig. Costs, §§ 884-891.]

Action by Norman O. Shepard against Arthur A. Campbell. Judgment for plaintiff. Application by plaintiff to review taxation of costs.

M. F. Dillon, for appellant.

Shanahan, Costello & Walters (Henry Walters, of counsel), for respondent.

ROSS, J.

The plaintiff recovered a judgment before a justice of the peace for $36.99 damages and $7.33 costs. The defendant appealed from that judgment to the County Court. The notice of appeal was in the usual form and contained the following:

> “Please take notice that the defendant, Arthur A. Campbell, * * - * appeals to the County Court * * * from the judgment entered in the above-entitled action * * * and from each and every part of said judgment so as aforesaid entered.”

The County Court rendered the following judgment, omitting the recitals:

> “It is ordered, adjudged and decreed that the warrant of attachment on said action issued by the justice of the peace aforesaid be, and the same hereby is, in ail things vacated; further

> “Ordered, adjudged and decreed that the appellant recover from the respondent the sum of $10 costs allowed in the County Court, and the sum of $10.33 as disbursements to be taxed, and that an execution issue therefor ; further

> “Ordered, adjudged and decreed that the judgment of the said justice, as modified, be, and the same hereby is, affirmed.”

*752From that judgment the plaintiff appealed to the Appellate Division of the Fourth Department. The notice of appeal contained the following, omitting the title:

> “You will please take notice that the .plaintiff and respondent appeals to the Appellate Division of the Supreme Court of the state of New York in and for the Fourth judicial department from the judgment and order granted herein on.the 6th day of January, 1903, and entered * * * modifying a judgment herein, and as modified affirming the same, and from each and every part of the said judgment and order. Yours, etc., M. F. Dillon, attorney for respondent.”

The Appellate Division rendered the following judgment, omitting the title, etc.:

> “The above-named Norman O. Shepard, plaintiff in this action, having appealed to the Appellate Division of .the Supreme Court, Fourth Department from a judgment of the Onondaga County Court, entered * * * said appeal having been argued by * * * and due deliberation having been had thereon, it is hereby ordered that the judgment so appealed from be and hereby is affirmed with costs.”

The clerk taxed the defendant respondent’s costs of appeal, allowing to the successful respondent the usual costs allowed upon an appeal from a judgment.

The appellant contends that only motion costs should be *taxed;*that the only part of the judgment of the County Court objected to was the provision vacating the attachment granted by the justice of the peace; that no claim was made upon the appeal to the County Court that the plaintiff was not entitled to a judgment for the amount rendered by the justice of the peace. The plaintiff appealed from the entire judgment of the County Court and the Appellate Division affirmed the same, and I see no reason why the defendant is not entitled to costs allowed upon an affirmance of a judgment. Even if the plaintiff had limited his appeal to the provision referred to, vacating the attachment, the result would be the same, the Appellate Division having affirmed the judgment in its entirety. The practice which compels an appeal from a judgment rendered by a justice of the peace to correct an intermediate order made by him is full of inconsistencies and difficulties. Such practice, however, is sanctioned by the Appellate Division of this department in its affirmance of the judgment of the County Court in this case. Whether the appellant could have made a motion to strike out the clause in question from the judgment, and from an order denying such application taken an appeal, is not here. He did not. He appealed from the entire judgment, and the appeal has gone against him.

Costs of appeal from the judgment should be allowed to the respondent, and an order may be entered accordingly.