Opinion
December 2, 1965
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Order insofar as it denies plaintiffs' motion for costs unanimously reversed and motion granted, and otherwise order affirmed, with costs to appellants. Memorandum: Plaintiffs-appellants brought their actions in the City Court of Buffalo. Upon motion of the defendant-respondent these actions were ordered removed to Erie County Supreme Court, to be tried jointly with a pending Supreme Court action. CPLR 8101 provides that a party in whose favor a judgment is entered is entitled to costs unless otherwise provided by statute or unless the court determines it would be inequitable to award them. Special Term in denying costs to appellants states that it was bound to do so by virtue of CPLR 8102 which provides that "A plaintiff is not entitled to costs * * * 2. in an action brought in the supreme court * * * unless he shall recover five hundred dollars or more". The appellants' appearance in Supreme Court was not of their making for they had properly instituted their actions in City Court and found themselves in Supreme Court solely by reason of the order secured by defendant-respondent. In this connection it should be noted that statutory denial of costs is in the nature of a penalty for bringing suit in the wrong court, something for which appellants are in no way responsible. "It would be unfair to deny costs to a successful plaintiff who had instituted his action in an appropriate inferior court solely because the defendant removed it to a higher court." (8 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 8102.05.) It would be patently unfair in the record before us to penalize appellants because of this situation brought about by respondent. The judgments in favor of appellants should be amended by granting them bills of costs to be taxed in such amounts as if the actions had been instituted in Supreme Court, Erie County.