Opinion
January 22, 1909.
D.A. Marsh [George D. Yeomans with him on the brief], for the appellant.
Frederick S. Martyn, for the respondent.
The defendant appeals from an order of the Special Term denying its motion for an order disallowing the taxation of costs by the plaintiff upon his verdict for $100, rendered in his action wherein his claim was for $5,000 damages for personal injuries, caused by the defendant's negligence. The motion was made under subdivision 5 of section 3228 of the Code of Civil Procedure.
The plaintiff laid the venue in the Supreme Court in the county of Queens and there the action was tried. But the defendant shows that it was served personally with process in the county of Kings, and its contention is that as the action could have been brought in the County Court of Kings county save for the amount of the claim, the said statute applies. We held in Waldstreicher v. Solomon ( 127 App. Div. 364) that each county stands separate in the application of the statute. I see no reason for rescission. I think that the word "triable" as used in this statute means the place of trial as indicated by the venue; in other words, this action was triable in the county of Queens. ( Chubbuck v. Morrison, 6 How. Pr. 367; Askins v. Hearns, 3 Abb. Pr. 184; Bangs v. Selden, 13 How. Pr. 374.)
The order must be affirmed, with $10 costs and disbursements.
HIRSCHBERG, P.J., WOODWARD, GAYNOR and MILLER, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.