Opinion
January 8, 1970
Bernardi Zogby ( James Zogby of counsel), for plaintiff.
Lockwood Lockwood ( Stephen Lockwood of counsel), for defendant.
This matter was sued in Small Claims Court of the City Court of Utica. The defendant asked for a jury trial and posted the $50 deposit required by UCCA, § 1806, and also paid the $6 jury fee. The case was then transferred to the Jury Term where it was tried. The jury returned a verdict in favor of the plaintiff in the amount of $199.25 plus interest, making a total verdict of $208.11.
The plaintiff filed a bill of costs in which he included the sum of $20 costs under UCCA, § 1901, and $25 costs under UCCA, § 1806. The defendant has moved for retaxation of the costs.
UCCA, § 1806, allows the defendant in a small claims matter to move for a jury trial if he pays a jury fee and deposits $50 in cash as an undertaking "conditioned upon the payment of any costs which may be entered against him in the said action or any appeal within thirty days after the entry thereof". The last sentence of said section states: "In any small claim which may have been transferred to another part of the court, the court may award costs up to twenty-five dollars to the plaintiff if he prevails."
When a case is transferred from the Small Claims Court to the Jury Term, it does not change the basic character of the claim. It is still a small claim. There are some provisions of the small claims article which would not apply to jury trials. For example, the rules of evidence would be more strictly followed in jury trial than in a small claims proceeding before the Judge alone. However, UCCA, § 1806, provides for costs in a matter transferred from the Small Claims Court to the Jury Term and no additional costs are allowed under UCCA, § 1901.
However, there is no requirement that the Judge be restricted to the same formula in arriving at the costs as is set forth in UCCA, § 1901. The statute states: "The court may award costs up to twenty-five dollars to the plaintiff if he prevails." The amount of costs is left to the discretion of the court.
In this case the court allows the plaintiff $25 costs under UCCA, § 1806, but orders stricken from the bill of costs the additional amount of $20 entered under UCCA, § 1901.