Kenney v. Livery Stable Keeper's Ass'n

BROWN, P. J. The' plaintiff recovered a judgment against the defendant, before a justice of the peace of the city of Brooklyn, for $200 damages and $14.60 costs. Of the costs $12 was recovered pursuant to section 3129 of the Code of Civil Procedure, which allows that sum to the prevailing party when a trial is had in a justice^ court of the city of Brooklyn. The defendant appealed from that judgment to the county court of Kings county, and on so doing paid to the justice $2.60 for the costs of the action, and $2 for making the return, but did not pay the sum of $12 allowed for additional costs as aforesaid. Section 3047 of the Code of Civil Procedure requires the appellant, at the time of serving the notice of appeal, to pay to the justice of the peace or his clerk the costs of the action; and it is the appellant’s contention that this requirement compelled the defendant, in order to perfect his appeal to the county court, to pay to the justice the full sum of $14.60. The term “costs” is defined by the Code (section 3074), and includes the allowance in question. In the section which provides for appeals to the county court no distinction is drawn between ordinary costs and those additional sums which .may be recovered under section 3129. All these allowances are denominated “costs,” and we are of the opinion that, in order to perfect an appeal to the county court, all the costs included in the judgment must be paid by the appellant to the justice at the time of serving the notice of appeal. Such is the rule which prevails in New York and Albany, under like provisions of law applicable to inferior courts in those counties. Sherwood v. Insurance Co., 12 Daly, 137; Schwemmer v. Stratton (Sup.) 22 N. Y. Supp. 523. Upon the argument it was contended that there was no way for the appellant to recover the costs so paid in case he succeeded on his appeal ; but section 3060 of the Code appears to be applicable to such a case, and, under that provision, costs and fees paid to the justice may be included in the disbursements on appeal in case the appellant is awarded costs. We are of the opinion that the county court erred in denying the motion to dismiss the appeal, and the order appealed from must be reversed, with $10 costs and disbursements, and the appeal to the county court dismissed, with $10 costs. All concur.