Brennan v. Fick , 108 N.Y.S. 1008 ( 1908 )

Pound, J.

Plaintiff is entitled to additional costs under the wages provisions of section 458 of the Laws of 1891, ch. 105, as amended, only if it appears that she made “ a personal, just and reasonable demand for the amount claimed from the defendant prior to the commencement of such action.” What is “ a just and reasonable demand ” must be determined in each ease by the judge before whom the action was tried. Obviously the demand can be just and reasonable only where the recovery is equal to the demand or substantially so.

The amount demanded in this action (two dollars and fifty cents) was, in relation to the amount recovered (two dollars), neither just nor reasonable. Plaintiff demanded twenty-five per cent, more than she was entitled to. Parties should not be penalized in costs and made subject to body executions when they refuse to accede to a demand for twenty-five per cent, in excess of what they owe, as subsequently established. A slight discrepancy between the demand and the recovery might not necessarily prevent the demand from being just and reasonable in all cases. A difference of fifty cents between demand and recovery on a fifty-dollar claim might not always defeat plaintiff’s right to costs, but the test of a just demand must ordinarily be the recovery of the amount demanded.

Judgment affirmed. >