#### Joseph B. Hubbard, Respondent, *v.*F. Augustus Heinze, Appellant.

First Department,

July 7, 1911.

Costs — Supreme Court,'county, of New York — recovery less than $1,000 — voluntary appearance of defendant.

Subdivision 5 of section 3328 of the Code of Civil- Procedure, providing that in actions triable in the Supreme Court in the county of-New York which could have been brought, except for the amount claimed, in the City Court of that city, and in which the defendant shall have been personally served with process within the county of New York, the plaintiff shall recover no costs or disbursements unless he .shall recover $1,000 or more, applies not only where the defendant has been personally served in «aid county, but also where, being a resident,-he voluntarily appears.

*829Appeal by the defendant, F. Augustus Heinze, 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 8th day of June, 1911, denying defendant’s motion for a retaxation of costs.

*Rosenthal*<3⁄8 *Heermance [Jacob Ansbacher of*counsel], for the appellant.

*Paul Armitage,*for the respondent.

Scott, J..:

This is in form an appeal from an order denying defendant’s motion for a retaxation of costs, but in effect challenges the plaintiff’s right to recover costs at all.

The action is for assault. The defendant was a resident of New York county and could have been served therein, but hearing that plaintiff proposed to commence an action; he voluntarily appeared. The plaintiff recovered judgment for less than $500. The case was one which could. have been brought, except for the amount claimed, in the City Court of the city of New York, and the defendant’s contention is that since the recovery was less than $1,000 the plaintiff is entitled to recover no costs. ' (Code Civ. Proc. § 3228, subd. 6.) The plaintiff, however, insists’that the subdivision above referred to applies only when the defendant shall have been “personally served with process,” which was the language of the section of the Code when this action was begun in September, 1909. (Laws of' 1904, chap. 557.) The language of the present section is “ served with process.” (Laws of 1910, chap. 574.) So far as concerns the present appeal we dó not consider that this change in phraseology is significant. The question is whether or not the subdivision of section 3228 applies' to a case in which the defendant was present in the county. and could have been personally served with process but was not served because he voluntarily appeared. Section 424 of the Code of Civil Procedure provides that “A voluntary general appear-anee of the defendant is equivalent to personal service of the summons upon him.” We think that this section should be given its full significance in the present case. TKe purpose of *830the statute (§ 3228, subcl. 5) was to relieve the congested calendars of the Supreme Court in New York county by compelling, so far as practicable, actions to' be brought in the City Court of New York if within its jurisdiction. In’ considering its language the evil sought to be remedied must be kept in mind. *(Seymour*v. *Wheeler,*137 App. Div. 52.) It needs no citation of authority to sustain the .familiar rule that where a case is brought within the intention of the framers of a statute it is within the statute, although by a technical interpretation it is not within its letter. ‘Clearly the present case falls within the intent of the subdivision referred to and must be considered as governed by it.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

IngrahAm, P. J., McLaughlin, Clarke and Dowling, *J.J.,*concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.