Loring v. Morrison

| N.Y. App. Div. | Jan 15, 1898

"Willard Bartlett, J.:

When the Appellate Division granted a new trial of this action it directed that the costs should abide the event. (Loring v. Morrison, 15 A.D. 498" court="N.Y. App. Div." date_filed="1897-04-15" href="https://app.midpage.ai/document/loring-v-morrison-5182115?utm_source=webapp" opinion_id="5182115">15 App. Div. 498.) That direction meant that the party who succeeded upon the new trial should have the costs of the appeal to this court. A motion to resettle our order, so as to give costs only to the defendants in case they should he successful, was denied, and the correctness or propriety of the direction as to costs is not open for consideration upon the present appeal.

On the last trial the plaintiff recovered judgment in the sum of fifty dollars and eight cents. This was made up of forty-five dol-. lars and fifty cents found to be due to the plaintiff upon the note in •suit, and four dollars and fifty-eight cents of interest thereon. The appellants insist that this interest cannot he regarded as part of the recovery for the purpose of fixing the right to costs, and that, inasmuch as the principal sum due on the note was less than fifty dollars, the plaintiff is not entitled to costs under section 3228 of the Code of Civil Procedure. It seems to us, however, immaterial how the verdict is made up, if the total amount awarded by the jury equals or exceeds the sum of fifty dollars. We agree with the learned county judge that the provision of section 3228 of the Code, relating to this matter, deals only with the final result of the action.

The amount demanded in the complaint was upwards of seventy-four dollars. The defendants offered to allow judgment for sixty dollars, and it is argued that the plaintiff cannot recover costs, because the judgment rendered is not more favorable than was the offer. . The offer, however, cannot be regarded as having had any effect whatever, inasmuch as it did not include costs. (Code Civ. Proc. § 738; Leslie v. Walrath, 45 Hun, 18.)

The . costs appear to have been taxed by the county judge in strict accordance with the statute, and the order appealed from must, therefore, be affirmed. If the taxation involves any hardship to' the appellants it is wholly due to the requirements of law, from which we have no power to relieve them.

All concurred.

Order affirmed, without costs of this appeal.