#### Isaac Brazee, Respondent, *v.*The Town of Hornby, Appellant.

(County Court, Steuben County,

April, 1899.)

Costs — New trial in County Court — Code Civil Procedure, § 3229.

After the plaintiff had recovered in justice’s court a judgment for more than $50 and for costs, the defendant appealed to the County Court for a new trial. Thereafter the plaintiff made a written offer to allow judgment to be taken in his own favor for the damages alone, but the defendant did not accept the offer and made no offer upon its own part. The County Court dismissed the complaint. Upon a motion by the plaintiff for a retaxation of costs taxed in favor of the defendant,

Held, that the plaintiff was, not entitled to any costs and that hence, under section 3229 of the Code of Civil Procedure, the defendant was entitled to costs as of course.

Motion by the plaintiff for a review of a taxation of costs in favor of the defendant after a trial, in the County Court of Steuben county, of an action begun in justice’s court.

James O. Sebring, for respondent.

F. A. Williams, for appellant.

Robinson, J.

The plaintiff recovered in Justice’s Court a judgment for $92.86 damages and $8.40 costs. The defendant appealed to this court demanding a new trial. . Within fifteen days the plaintiff (under section 3070 of the Code of Civil Procedure) served a written offer to allow judgment to be rendered in this court in his, the plaintiff’s, favor for $92.86, just the amount of the judgment below. The offer was not accepted and no offer was made on behalf of the defendant. The case went on the calendar and was reached in its regular order and moved and the complaint dismissed, the defendant wholly succeeding. The clerk,. on motion, and after hearing both parties, taxed costs in favor of the defendant.

The right to costs was then, on motion, presented to this court. I have examined all the cases cited very carefully and have come to the conclusion that section 3229 of the. Code of Civil Procedure *130(which awards to the defendant costs when the plaintiff is not entitled to them),- applies to this case. In McKuskie v. Hendrickson, 128 N. Y. 555, the court clearly intimates that if the recovery there had been $50 the plaintiff would have.been entitled to the costs. If this is so, then clearly section 3228 of the Code would apply to such a case. Section 3228 could not apply unless section 3229 would also apply. (Section 3228 or section 3070 did not award costs to the plaintiff.)

I am satisfied that the attention of the Court of Appeals was not called to section 3229 of the Code upon the argument of McKuskie v. Hendrickson, and that'if the question here is ever presented to that court, it must hold that, if section 3228 will give the plaintiff costs where he recovers over $50, then section 3229 will also give the defendant costs, unless by either section 3228 or section 3070 the plaintiff is entitled to costs. Fowler v. Dearing, 6 App. Div. 221, and cases there cited. "

It is with a greaf deal of reluctance that. I have reached this conclusion, for I have found no way of deciding this case without appearing to disagree with the Court of Appeals. It cannot be decided that sections 3228 and 3229 of the Code do not apply, because that would be contrary to the language of McKuskie v. Hendrickson, viz.: *“*He is not entitled to costs by virtue of any general provision contained in section 3228 of the Code,- because he did not recover as much as fifty dollars.”

It cannot be decided that these sections do not apply without running contrary to this language in the McKuskie case, viz.: “ The only section of the Code relating to-costs in a case like this is 3070.”

If,, however, section 3228 may apply if the plaintiff-recovers oyer $50, why will hot section 3229 apply when, by every other prdvision of the Code, the .plaintiff is not entitled to costs ?

Section 3229 reads as follows: “ The defendant is entitled, to costs, of course, upon the rendering of final judgment, in an action specified in the last section, unless the plaintiff is'entitled to costs as therein prescribed.”

By section 3071 the action is an action at issue in this court. By section 3228, if the plaintiff recovers $50,'or over, he- is entitled to costs. By section 3229, if the defendant succeeds in defeating the entire claim of the plaintiff by the dismissal of his complaint, lie is entitled to costs. -

Some stress may be put upon the word *“*recovery ” in section 3070. Where an offer is made as above provided, the party re*131fusing to accept the same shall be liable for the costs of the appeal, unless the *recovery*shall be more favorable.to him than the sum offered.” It may be claimed that this language implies that there must be some recovery in dollars and cents “ a specified sum ”, and that where there is no recovery of “ a specified sum ” it cannot apply.

In this case there is no recovery of a “ specified sum ”, therefore, section 3070 did not apply, but section 3229, the general provision, did apply. •

The McKuskie case can be distinguished in this way without doing violence to any of its *dicta.*

This motion should be denied, but, because of the novelty of the question, without costs.

Motion denied, without costs.