Frisch v. Dussault

Kellogg, J.: But one question is raised upon this appeal. The plaintiff recovered judgment in the City Court of Schenectady for twenty-five dollars. Defendant appealed to the County Court for a new trial upon which the plaintiff recovered judgment for twenty-one dollars and fifty cents. Neither party made any offer of judgment as provided by section 3070 of the Code of Civil Procedure. The County Court awarded costs to the plaintiff. The defendant claims that the plaintiff, not having recovered fifty dollars damages in the County Court, under section 3228 of the Code of Civil Procedure, is not entitled to costs. Section 3070 of the Code of Civil Procedure reads: “If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal.” The County Court properly held that the plaintiff was entitled to costs. (Lawson v. Speer, 91 App. Div. 411; Pierano v. Merritt, 148 N. Y. 289.) The judgment should, therefore, be affirmed, with costs. Judgment unanimously affirmed, with costs.