Loncz v. International Railway Co. , 123 Misc. 675 ( 1924 )

Noonan, J.

The plaintiff is a resident of the city of Lackawanna, which is adjacent to the city of Buffalo. She sued the defendant for damages for personal injuries, and recovered a verdict of fifty dollars. Upon this verdict a judgment was entered for fifty dollars damages, and ninety-nine dollars and ninety-three cents costs.

The defendant has moved to vacate and disallow the costs upon the ground that the plaintiff is not entitled to costs under section 1474, subdivision 7, of the Civil Practice Act, which reads as follows: " The plaintiff shall recover no costs or disbursements * * *. (7) In an action brought, triable in the Supreme Court or County Court of Erie county, which could have been brought, except for the amount claimed therein, in the City Court of Buffalo, and in which the defendant shall have been served with process within the city of Buffalo, unless he shall recover two hundred and fifty dollars or more.”

Subdivision 3 of section 1474, which is identical in purpose and as similar as possible in language to subdivision 7, has been passed upon by the courts. In Leyden v. Brooklyn Heights Railroad Company, 122 App. Div. 383, the court held that the plaintiff, who began an action in the Kings County Court which could have been brought in the Municipal Court of the city of New York, was not entitled to costs on a verdict of fifty dollars; and that the taxation thereof was void and should be set aside.

The penalty that the plaintiff pays for bringing her action in the County Court is the loss of costs, but she is not required to pay costs. Lipshen v. Epstein, 183 App. Div. 806.

In the instant case the summons was served upon the defendant in the city of Buffalo, and the City Court of Buffalo had jurisdiction of the cause of action. It follows that in this and all similar cases the plaintiff cannot recover costs unless the judgment is for $250 or more, and that the taxing of costs herein was illegal and void, and should be set aside.

Let an order be entered accordingly.

Ordered accordingly.