Chapter 522 of the Laws of 1885 amended section 3070 of the Code of Civil Procedure. In the last part of the section are found these words:
“If neither party make 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.”
That section falls under the construction in McKuskie v. Hendrickson, 128 N. Y. 555, 28 N. E. 650. In the course of the opinion it was said:
“There is no provision in the Code giving the plaintiff costs in such a case against the defendant where the recovery is for less than $50, and no language was used indicating that such was the legislative intention. The only way in which plaintiff can secure his right to costs in such a case as this is by making an offer to take judgment for a sum specified, and then, if the defendant refuses to accept the offer, he will be liable to costs unless the recovery is more favorable to him than the offer. Here the plaintiff could have offered to take the judgment in the county court for thirty dollars, or any other sum not exceeding thirty-five dollars, and could thus have secured his right to costs.”
The rule laid down in the case from which the quotation has been . made seems to apply to the case in hand, and the case was decided in 1891, subséquent to the decision made by this court in Sheehan v. Buller, 24 N. Y. Wkly. Dig. 168, in April, 1886, and approved in Munson v. Curtis, 43 Hun, 217, in January, 1887. Inasmuch as the plaintiff did not recover a sum sufficient to carry costs if the action had been brought originally in the county court, he is not entitled to recover costs entered in the judgment. Sherman v. Shisler, 6 Misc. Rep. 203, 27 N. Y. Supp. 215. It seems to follow that the order of the county court is erroneous, and should be reversed.
Order reversed, with $10 costs and disbursements, and directions given to the clerk of Onondaga county to strike from the judgment the costs entered therein in favor of the plaintiff. All concur.