1 Bosworth Super. Ct. Rep. 653

Frederick L. Peet v. John Warth.

When a plaintiff, in an action for the recovery of money, for goods sold and services rendered, recovers a verdict for a less sum than $50, he must pay the defendant’s costs of the action, as a matter of course: Such a plaintiff is not “the prevailing party,” within the meaning of those words, as used in § 311 of the Code. The right to recover “the necessary disbursements," is incident to and inseparable from the right to recover the costs of the action: The party who, by law, is entitled to his costs of the action is, in respect to the matter of the costs, the prevailing parly.

(Before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J.J.)

Heard, May 15;

decided, May 29, 1858.

The plaintiff brought this action to recover money, for goods sold and for services rendered, claiming over $50.

The defendant, by his answer, denied that the goods and services were of the value alleged in the complaint. The verdict was for $30, in favor of the plaintiff.

The defendant claims costs. The plaintiff resists the claim, and demands that the clerk insert in the judgment the amount of plaintiff’s disbursements.

The Judge below allowed costs to the defendant, and rejected the plaintiff’s claim for disbursements.

The plaintiff appeals from the order entered on that decision.

Miller, Peet, and Nichols, for plaintiff.

S. W. Judson, for defendant.

*654By the Court. Pierrepont, J.

The Legislature, evidently, intended to discourage the "bringing of actions, for small claims, in the higher Courts.

By section 304 of the Code, the plaintiff in an action like this is entitled to costs if he recover $50 or more. By section 305, the defendant in such action is entitled to costs, unless the plaintiff has a • right to them. The plaintiff not being entitled to costs, it follows that the defendant is entitled to them. It is also clear that the plaintiff is not entitled to recover his disbursements from the defendant. The right to recover disbursements is incident to the right to recover the costs of the action. They are entered in the bill of costs, and adjusted as a constituent part of it: The plaintiff, having no right to costs, has none to disbursements.

The plaintiff insists that, under the Code, disbursements are to be entered in the judgment in favor of, and that they are recoverable by, the “prevailing party;” and that the party who recovers even a less sum than $50, has prevailed; and that as the defendant has not recovered a verdict for any sum, he has not prevailed. .

In those sections of the Code which relate to costs, the prevailing party” therein mentioned is he who has prevailed in establishing his right to costs under the law. A plaintiff who sues for and recovers $20 only, in a Court of Record, is not the prevailing party within the statute relating to costs, and the defendant in such action is the prevailing party.

"We have not omitted a careful consideration of the case of Kalt v. Lignot (3 Abbott, 33), and the other cases cited by the plaintiff’s counsel.

The order appealed from must be affirmed, with $10 costs.

Peet v. Warth
1 Bosworth Super. Ct. Rep. 653

Case Details

Peet v. Warth
Decision Date
May 29, 1858

1 Bosworth Super. Ct. Rep. 653

New York



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