
    SUPREME COURT.
    John Gilliland agt. Alanson P. Campbell.
    Whore an action was brought upon a promissory not efor $186, given on the settlement of accounts between the parties, and a defence interposed on the ground of a mistake in fact as to any amount being due to the plaintiff, and the referee, on tho trial, examined all the accounts between the parties, which exceeded $2,000, and corrected the errors committed in their settlement, which reduced the amount of the note down to $26.12, and thereupon reported his conclusions of fact, and added thereto his conclusion of law, “that the plaintiff recover of the defendant $26.12, with costs,"
    
      Held, 1. That by tho facts found a justice of the peace had no jurisdiction bf the action, and,
    3. That the referee’s conclusion of law, that the plaintiff recover costs, as well as damages, was correct.
    
      Broome Special Term, April, 1859.
    This action was tried before a referee, who reported his conclusions of fact; and added thereto his conclusion of law, “ that the plaintiff recover of the defendant $26.12, with costs.” The plaintiff had his costs adjusted by the cleric, and then entered a judgment upon the report against the defendant for $26.12 damages, and $80.12 costs. The defendant made a motion to set aside the judgment for costs against him, and asked for an order that he have judgment for costs against the plaintiff.
    The’ action was founded on a promissory note, for the payment of $186. The defence was, that the note was given on a settlement of accounts between the parties, in which a mistake of fact was made, which, if corrected, would show that the defendant did not owe the plaintiff anything; but that the latter owed the former $100. The total amount of the accounts settled exceeded $2,000. And they were all examined by the referee on the trial, and when he made his report, he corrected the errors that were committed in the settlement, made by the parties, which reduced the amount due the plaintiff, from that specified in the note, down to $26.12.
    
      The accounts settled were partnership accounts; and the referee found how much money each partner had paid out for the firm, and how much each had received for the firm; and calculated the profits and losses in the firm business, and came to the conclusion that a mistake of fact was made in the settlement, and that the defendant, instead of owing the plaintiff the $186 mentioned in the note, only owed him $26.12.
    L. L. Bundy, for plaintiff.
    
    E. E. Ferry, for defendant.
    
   Balcom, Justice.

I am of opinion the facts show that this was an action, of which, according to section 54 of the Code, a court of a justice of the peace had no jurisdiction ; and that, therefore, the plaintiff was entitled to recover costs of the defendant. (Code, § 304, subdivision 3.) The settlement made by the parties of their accounts was found to be erroneous; and for that reason the accounts were not liquidated by the settlement, but were unliquidated so far as the trial was concerned. And as they exceeded $400, and must have been proved to exceed that sum, to the satisfaction of a justice of the peace, if the action had been brought in a justice’s court, such a court had no jurisdiction of the action. (Code, § 54, subdivision 4.) The action was necessarily brought in this court; and as I have before stated, the plaintiff was entitled to costs, although he recovered less than $50 damages. (See Code, § 304; Crim agt. Cronkhite, 15 How. Pr. Rep. 250.)

The facts found by the referee show that a justice of the peace had not jurisdiction of the action. Hence the referee’s conclusion of law, that the plaintiff recover costs as well as damages, was correct. The report of the referee stands as the decision of the court, and judgment was rightfully entered thereon, in the same manner as'if the action had been tried by the court. (Code, § 272.) The clerk or the plaintiff’s attorney made up the j udgment-roll, by including the report therein, in the same manner that he would .have included the decision of the judge, if the action had been tried by the court. (Code, § 281.)

I can see no good reason why the referee should not find the facts, that determine which party is entitled to costs, in actions arising on contract, where he decides that the plaintiff shall not recover $50, and also the legal conclusion as to who shall recover costs, and I think it his duty to do so. It has been held, where costs rest in the discretion of the court, and the action is referred, that the referee should determine the question of costs. (4 How. Pr. Rep. 300; id. 356; 10 Barb. 448.) But where the right to costs may be affected by facts not proved on the trial, he has no right to decide that question. (12 How. Pr. Rep. 300.)

In cases like the one under consideration, the facts that show which party is entitled to costs, when the plaintiff recovers less . than $50 damages, are proved or admitted on the trial; and for this reason I am of the opinion the referee very properly passed' upon the question as to which party should recover costs in this action. The motion to set aside the plaintiff’s judgment for costs, and for an order that the defendant recover costs, should be denied, with $10 costs.

Note.—Affirmed with $10 costs, at the Tompkins General Term, Nov., 1859.  