This action was brought in the Supreme Court, the venue being laid in the county of New York, to recover damages for the conversion of personal property alleged to have been of the value of $133.71. The plaintiff recovered $101.42, together with costs and disbursements, which were taxed at $137.32, making in all a judgment of $238.74. The defendants moved for a retaxation of costs on the ground that under subdivision 5 of section 3228 of the Code of Civil Procedure plaintiffs were *114not entitled thereto, the recovery having been less than $1,000. The motion was denied and they appeal.
It appeared upon the motion for retaxation that both the defendants are non-residents and have no property or place of business within the State of New York. The plaintiffs attempted to serve the defendants by publication, but obtained no attachment, and were, therefore, unable to get jurisdiction. The defendants, however, voluntarily appeared in the action and interposed an answer.
When they voluntarily appeared this had the same effect as though the summons had been personally served upon them. (Code Civ. Proc. § 424.) Subdivision 5 of section 3228 of the Code of Civil Procedure provides, among other things, that in all actions brought in thfe Supreme Court, triable in the county of New York, which feould have been brought, except for the amount claimed, in the City Court of the city of New- York, and in which defendant shall have been served with process within the county of New York, the plaintiff can recover no costs or disbursements unless he shall have recovered $1,000 or more. So far as appears, at the time this action was commenced, one could not have been brought either in the Supreme Court or in the City Court (since the defendants were non-residents and had no property in the State), unless the defendants chose voluntarily to appear. This they did, and' after such voluntary appearance the situation, so far as costs were concerned, was precisely the same as if personal service had been made in the city of New York. The question is whether or not the subdivision of section 3228 applies to a case in which defendant could not have been personally served with process, but who voluntarily appeared.
I think section 424 of the Code of Civil Procedure and subdivision 5 of section 3228 should be given the effect intended to be accomplished by them, which was, at least so far as the subdivision of the latter section is concerned, to relieve the Supreme Court in New York county by compelling, as far as practicable, actions to be brought in the City Court of New York if within its jurisdiction. (Hubbard v. Heinze, 145 App. Div. 828.) This action could just as well have been brought in the City Court as in the Supreme Court, because in neither *115case could the court obtain jurisdiction unless the defendants voluntarily appeared. To award costs against them because they did voluntarily appear is not only to penalize them for such appearance, but to destroy what seems to me the plain intent of the statute.
I dissent, therefore, from an affirmance of the order appealed from and vote to reverse the order and grant the motion for a retaxation.
Order affirmed, with ten dollars costs and disbursements.