Section 3070 of the Code of Civil Procedure, being one of the sections of the article relating to appeals for new trials in the appellate court, is as follows: “ Upon an appeal, provided for in this article, from a judgment for a sum of money only, either party may, , within fifteen days after service of the notice of appeal,, serve upon the adverse party, or upon his attorney, a written offer to allow judgment to be rendered in the appellate court, in favor of either party, for a specified sum. If the offer is not accepted it cannot be proved upon the trial. If the party within ten days after service of the offer upon him serves upon the party making the same, or upon his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of .acceptance' with the clerk of the appellate court, who thereupon must enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be- more favorable to him than the sum offered. If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision -in th'e appellate court is given shall be entitled to recover his costs upon the appeal. Costs when awarded according to the provisions of this section shall be in amounts provided -in section three thousand and seventy-three of this article.”
The first and important question for determination is whether the verdict of seventy-five dollars rendered March 21, 1900, is a recovery more favorable to the plaintiff than the offer to allow judgment for sixty-five dollars made February 16, 1894. The recovery would seem to be more favorable to the plaintiff than the offer, in that seventy-five dollars is more than sixty-five dollars. It is claimed by the appellant that in comparing the offer with the verdict for the purpose of determining whether the recovery is more favorable to the plaintiff than the sum offered, interest should be computed on the offer from the time when it was made to the rendition of the verdict or the verdict should be discounted by such an amount *79as would leave a sum which, with interest thereon from the time when the offer was made, would amount to seventy-five dollars on March 21, 1900.
In actions where the' damages are liquidated, interest from the date of the offer to the date of the recovery included in'the verdict, report or decision, should be taken into consideration in determining whether the recovery is more favorable to a party than the sum offered. (Bathgate v. Haskin, 63 N. Y. 261; Budd v. Jackson, 26 How. Pr. 398 ; Pike v. Johnson, 47 N. Y. 1.)
In actions where the damages are unliquidated, the recovery should be compared with the offer, without adding interest to the offer and without discounting the amount of the recovery as shown in the verdict, report or decision. (Johnston v. Catlin, 57 N. Y. 652; 15 Ency. Pl. & Pr. 58; Kelly v. Bonesteel, 29 Hun, 546.)
The reason for considering interest in determining whether a verdict, report or decision is more favorable to* a party than an offer of judgment is not that the party accepting an offer of judgment would have interest on the judgment from the time of its entry or the use of the sum offered if paid or collected, but interest is considered because the recovery as shown by the verdict, report or decision actually includes interest that has accrued between the service of the offer and the rendition of the verdict, or the filing of the report or decision. If in all cases interest should be taken into consideration because the person accepting the offer would have interest on the judgment or the use of the sum offered if paid, there would be no distinction between actions for liquidated damages and actions for unliquidated damages. Interest should only be computed for the purpose of comparison in cases where it is actually included in the recovery. If interest is not actually included in the recovery a deduction of an amount equal to the interest would be an injustice to the successful party in making the comparison. If interest had been included in the verdict of seventy-five dollars rendered in this case we should feel compelled to discount such interest before comparing the verdict with the offer. It appears, however, from the complaint that the plaintiff did not demand interest upon the amount claimed by him to be due from the defendant. It does riot appear that the jury were in the possession of any facts from which interest could have been computed *80by them if they had desired to do so, and it further appears from the charge of the court, a copy of which is included in the record, that nothing was said to them on the subject of interest, and the conclusion necessarily reached from the record before us is, that the 1 verdict was rendered without any claim having been made for interest upon the balance due from, the defendant to the plaintiff, and that the Arerdict as rendered did not include interest.
We are of the opinion that the plaintiff’s recovery was more favorable to him than the offer of judgment, and that the defendant is not entitled to costs under said section 3070 of the Code of Civil Procedure.
Upon the facts stated the plaintiff is not entitled to costs under said section 3070 of the Code of Civil Procedure. (McKuskie v. Hendrickson, 128 N. Y. 555.)
Under section 3071 of the Code of Civil Procedure, where an appeal is taken from a judgment of a Justice’s Court and a new trial is demanded in the County Court, after the expiration of ten days from the time of filing the justice’s return, the action is deemed an action at issue in the appellate court. The general provisions relating to costs under section 3228 of the Code of Civil Procedure are applicable to actions in the County Court, but whether they are applicable to an action commenced in Justice’s Court and brought into the County Court on a notice of appeal for a new trial has been a subject of considerable controversy and the decisions of the courts are not harmonious.
The respondent contends that where an appeal is taken from a judgment of the Justice’s Court and a new trial is demanded in the County Court and sections 3070 and 3073 of the Code regulating costs on such appeals are inapplicable, the plaintiff if he recovers fifty dollars or more in the County Court is entitled to costs under section 3228 of the Code of Civil Procedure. The weight of authority seems to be in favor of the respondent’s contention.
In McKuskie v. Hendrickson (supra), the court, in considering whether the plaintiff in that case was entitled to costs under section 3070 of the Code of Civil Procedure, said: “ He is not entitled to costs by virtue of any general provision contained in section 3228 of the Code, because he did not recover as much as fifty dollars.”
*81In Pierano v. Merritt (148 N. Y. 289) the court, in considering a similar question and referring to McKuskie v. Hendrickson (supra), said : “ It was intimated, however, that if the verdict had been for $50 or more the plaintiff could have recovered costs under' | 3228.”
In Fowler v. Dearing (6 App. Div. 221) the court allowed costs to a plaintiff under said section 3228 where he recovered more than fifty dollars on a new trial in the County Court after an appeal from a judgment of a Justice’s Court, and in referring to said section 3228 say: “ In the case,of McKuskie v. Hendrickson, already cited, there is a clear intimation by the Court of Appeals that this provision is applicable to suits in Justices’ Courts. * * * In the former case the court said that the plaintiff was not entitled to costs by virtue of any general provision contained in section 3228 of the Code, ‘ because he did not recover as much as $50,’ thereby clearly implying that he would have been entitled to costs if the recovery had amounted to that sum. In Pierano v. Merritt (148 N. Y. 289) this intimation is referred to by Yann, J., without any suggestion of disapproval.”
In default of other provision for costs the right to costs under said section 3228 in an action commenced in Justice’s Court and retried in the County Court has been recognized in the following cases: Birdsall v. Keyes (66 Hun, 233); Munson v. Curtis (43 id. 214); Snyder v. Hughes (27 id. 373); Quick v. Wixon (Id. 592); Brazee v. Town of Hornby (27 Misc. Rep. 129); Mattes v. Panse (47 N. Y. St. Repr. 446); Combs v. Combs (25 Hun, 279).
The order - should be affirmed, with ten dollars costs and -disbursements. >
All concurred.
Order affirmed, with ten dollars costs and disbursements.