(55 Misc. Rep. 38.)

#### BRICK v. FA VILLA et al.

(Chautauqua County Court.

June, 1907.)

Costs—On Appeal—Amendment to Case.

Code Civ. Proc. § 3053, provides that a justice’s return, on appeal, must contain all the proceedings, including the evidence and judgment. Section 3063 provides that the appeal must be heard on the original papers or certified copies of the same. Section 3251 provides that costs as therein prescribed may be allowed for making and serving amendments to a case. Held, that where, on appeal to the Appellate Division from a judgment of the County Court cm appeal from a Justice’s Court, the record as contained in the return of the justice to the County Court was changed, in that the evidence was abbreviated and reduced to narrative form by the attorneys of the respective parties, costs for such, amendment to the case were not allowable; no provision being made for such change, and the same not being within section 3257.

Motion by Matthew Fa villa and another, defendants, for a retaxation of costs in an action wherein Henry F. Brick was plaintiff. Item objected to disallowed.

See 101 N. Y. S. 970, 103 N. Y. S. 1117.

Nelson J. Palmer, for appellant.

Stearns, Thrasher & Sullivan, for respondent.

OTTAWAY, J.

This is a motion made by the defendants for the retaxation of a bill of costs. An objection is made to the item of $20 for making and serving amendments to a case. This action was tried in Justice’s Court. An appeal was taken to the County Court. The judgment of Justice Court was reversed. An appeal was then taken to the Appellate Division, and the judgment of the County Court sustained. The plaintiff and respondent presented a bill of costs to the clerk of Chautauqua county, and caused to be taxed an item of $20 for making and serving amendments to the case. His attorneys insist that this was a proper item to be taxed, for the reason that the record, as contained in the return of the justice to the County Court, was changed and abbreviated for use before the Appellate Division. It is claimed that the evidence contained in the justice’s return was in the form of questions and answers, and this was reduced to narrative form by the attorneys representing the parties to this action. It is claimed that this furnishes a basis for the allowance of this item. We cannot agree with this contention.

Section 3053 of the Code of Civil Procedure provides that a justice’s return must contain all the proceedings including the evidence and the judgment. Section 3063 provides that the appeal must be heard upon the original papers or certified copies of the same.

The record upon appeal to the Appellate Division is presumed to be the same as used before the County Court. No provision is made for any changes. The changes made by the attorneys of the respective parties and their stipulation following the changes so made “that the foregoing is a true copy of the whole of the original justice’s return,” etc., does not furnish sufficient basis for the allowance of this item. Where no statutory right to charge or allow costs is shown, no legal *189right exists. It does not appear that any amendments were prepared and served as contemplated by section 3251 of the Code of Civil Procedure.

The item of $20 is disallowed, with $10 costs to the defendants.