Are the costs of appeal from a Justices’ Court to the County Court, when a new trial is had, to be now governed by section 371 of the old Code, or section 3070 of the Code of Civil Procedure ? The notice of appeal to the County Court specified as error “ that the justice erred in not rendering judgment in favor of the defendant.” No offer was made by respondent to coi'rect the judgment in that respect. Afterwards the Code of Civil Procedure was enacted, by which the rights to costs were put upon a different basis. The case was retried in the County Court, and the plaintiff’s (respondent’s) damages were reduced from $160 to $100. Costs were taxed for defendant. Such taxation was sustained by the County Court, and the plaintiff appeals to this court.
If the costs were properly regulated by section 3070 of the new Code, the defendant was entitled to recover them. The plaintiff contends that his rights as to costs were fixed in 1876, when the appeal ~ was taken from the justice’s judgment; that as the defendant’s notice of appeal made no specific offer for reduction claimed, the plaintiff was not called upon to offer to correct; that saying the judgment should have been for defendant was not a statement of the particulars in which the judgment should be more favorable to him, and, as a consequence, he, the plaintiff, was entitled to costs if he recovered any sum in the County Court. This position is sustained by Wyncoop v. Halbut (43 Barb., 266), and some other old cases. Two late decisions in the Second Department take the opposite view. (Doron v. McLoughlin, 14 Hun, 628, and Chamberlain v. Chamberlain, 25 Hun, 199.) I think the reasoning is in favor of the older cases.
But the plaintiff’s position is that he acquired rights as to costs after the appeal was taken in 1876, which the legislature could not take away, or which were preserved by virtue of Code of Civil Procedure (§§ 3349, 3352, 3347). The legislature may take away all costs, or increase or diminish the same, during the pendency of the action. The conditions upon which the right to costs may depend may be removed or created at its will. Costs in the end will be granted or refused in accordance with the law when the party has the right to costs. (Supervisors of Onondaga v. Briggs, 3 Den., 173; Ackley v. Tarbox, 19 Abb., 119.) There can be no vested right to costs
This conclusion leads to the affirmance of the order of the County Court.
Order affirmed, with ten dollars costs and printing disbursements..