70 N.Y.S. 913 | N.Y. App. Div. | 1901
Costs are regulated by statute and therein must be found the answer to the question, when' raised, as to what costs and in whose favor the same are taxable. Sections 3228 and 322.9 of the Code of Civil Procedure provide that the plaintiff is entitled to recover costs only when he obtains a judgment for fifty dollars or more, and, if he fails to recover such judgment, then the defendant is entitled to costs. These sections are undoubtedly controlling as to all actions commenced in courts of record; but it remains to be determined whether they affect actions commenced in a District or Municipal Court and removed into the City Court.
Passing, therefore, to the provisions of law which it is' claimed affect the question here under discussion, we find in addition to the sections mentioned that section 3347, subdivision 13, of the Code of Civil Procedure provides : “ In chapter twenty-first, titles first, second and third apply only to an action in one of the courts specified in subdivision fourth of this section; ” and subdivision 4 provides: “The remainder of chapter fifth and the. whole of chapter sixth apply only to an action commenced on or after the first day of September, 1877, in the Supreme Court, the City Court of the City of Rew York or a County Court.” And section 3216 of the Code of Civil Procedure, by virtue of which the action herein was removed to the City Court, provides that an order of removal may be granted in certain cases and upon the filing of an undertaking in a sum not exceeding twice the amount of the damages claimed, and that “from the time of the granting of the order the City Court of the City of Hew York has cognizance of the action,” and the papers must be delivered to the clerk of that court. Formerly as to an action commenced in a District Court and under a similar statute removed to the Court of Common Pleas, it was held that it continued1 in its nature to be an action in a District Court; or, as expressed in the language of the opinion in Smith v. White (23 R. Y. 572): “ The action commenced there was never discontinued but was removed to the Court of Common Pleas. The proceedings in the latter Court were a continuance merely of an action already at issue. The pleadings in the District Court were those on which the trial was had in the Common Pleas; and it was the evident intention of the law under which the removal into, that court was made, that the progress of the suit should not be interrupted by such removal.”
On the other hand, our attention is directed to the case of Combs
The result of our examination, therefore, has been a failure to find any provision of the Code which regulates the subject of costs in an action removed from a District or Municipal Court into the City Court; and this, as we take it, was the conclusion reached by the learned judge writing the opinion of the Appellate Term, for he says: “ Neither the Code of Civil Procedure nor any other, statute, so far as I can discover, in express terms declares what costs either party to an action so removed shall be entitled to, and the matter must, therefore, be determined by such inferences as can be reasonably drawn from existing statutes.” The difference between the conclusion reached by the Appellate Term and the one at which we have arrived, results merely from what we regard as the unwarranted force given to inferences which might be drawn from existing statutes which it is conceded do not in express terms control the subject. In other words, in our view, it will not do to rely on inferences, but, on the contrary, upon the subject of awarding or withholding costs, express authority must be found in the statute.
This we understand to be the rule clearly expressed in the case of McKuskie v. Hendrickson (128 N. Y. 555) wherein it is said:
Our conclusion is that, with respect to actions originally commenced in the District or Municipal Court and removed into the City Court and therein tried, no provision has been made by the Legislature as to costs, and that, under such circumstances, neither party is entitled to them. The order of the Appellate Term should, therefore, be reversed and judgment should be entered for plaintiff in accordance with the views herein expressed,, with costs and disbursements of the appeal to the plaintiff.
Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.
Determination of Appellate Term reversed and judgment ordered for plaintiff as directed in opinion, with costs and disbursements of appeal to plaintiff.