If the language of the decision in Bigsby v. Warden (62 N. Y., 27), is to be followed, the question is decided. “The costs of appeals from Justices Courts are regulated by section 371, except as the right to costs given by that section is qualified or varied incases in which offers of judgment are made pursuant to section 366, or other special enactmentThis sentence does not say, except as the right to costs is qualified by other special enactment. It says, except as the right to costs is qualified in cases in which offers of judgment are made. It is the offers of judgment which may be made pursuant to section 366, or other special enactment; that is, the words “other special enactment” are governed by the words “pursuant to.” They can be governed by nothing else.
Again, that decision states that section 371 applies to all cases of appeal from justices court, whether a new trial is to be had in the appellate court or not.
The question was fully discussed in Bixby v. Warden (46 How., 239), at the General Term, and the same result reached.
The policy of the provision seems to be that appeals shall be discouraged, unless the appellant can change the result in his favor, at least to the extent of ten dollars. We think that the construction given to the section by the Could of Appeals should be followed.
The order should be reversed, the adjustment in favor of defendant set aside and the clerk directed to adjust costs in favor of plaintiff.
The plaintiff should recover costs of appeal to county court, and ten dollars costs of appeal to this court, with printing disbursements.
Present — LearNed, P. J., Bocees and Boardman, JJ.Ordered accordingly.