
    Andrew Ruegamer, Jr., and William Auer, Composing the Firm of Ruegamer & Auer, Respondents, v. Anthony J. Cieslinskie, Appellant.
    
      Judgment of the Municipal Court of New York city — when it is on the merits — - when a defendant is entitled, to costs.
    
    Where the defendant in an action brought in the Municipal Court of the city of New York to recover the contract price of certain work, which, by the terms of the contract, w.as to be completed on or before August 19, 1903, denies that the work has ever been completed according to the contract, and interposes a ' counterclaim for-damages incident ■to. the work; and the justice before whom the case was tried without a jury renders a decision “dismissing the complaint on the ground this action is prematurely brought, the work not being completed according to the contract, and judgment for the defendant on the counterclaim for the sum of $25.00 without costs,” such judgment operates as a dismissal of the complaint upon the merits.
    In such a case the defendant is entitled, under subdivisions 2 and 5 of section 332 of chapter 580 of the Laws of 1902, the Municipal Court Act, to fifteen dollars costs.
    Appeal by the defendant, Anthony J. Cieslinskie, from an order of the Municipal Court of the city of New York denying the defendant’s motion to amend a judgment theretofore entered in the action.
    
      Albert A. Hovell, for the appellant.
    
      Fred L. Gross, for the respondents.
   Hirschberg, P. J.:

I think the defendant was entitled to have his motion granted. The action was brought to recover the sum of $115-as the contract price for the doing of certain plumbing work, which work, according to the written contract, was to be completed on or before August 19,1903. The defendant denied that the work had been performed according to the contract or completed at all, and alleged as a counter* •claim expenditures incurred by him and damage incident to the. work amounting to $32.99. The action was commenced in January, 1904. The case was tried without a jury and the court- rendered a decision and entered judgment, in accordance with it, the precise words of which are as follows: dismissing the complaint on the ground this action is prematurely brought, the work not being completed according to the contract, and judgment for the defendant on the counterclaim for the sum of $25.00 without costs.” The defend- •, ant’s motion was to amend this judgment so that it would read judgment for the defendant dismissing the complaint on the merits and judgment for the defendant on the counterclaim for $25.”

Mo question is raised as to the propriety of the defendant’s attempt to procure an amendment, of the judgment by motion , under section 254 of the Municipal Court Act, of the city of Mew York (Laws of 1902, chap. 580). The respondents’ contention is that the judgment is not on the merits, and that the recovery for .the counterclaim does not carry costs. ■ The judgment is certainly on. the merits. There could be no decision in favor ■of' the defendant to the effect that the work was not' completed within the time contracted for and awarding to him damages resulting from the failure of the plaintiffs to perform their contract without involving an adjudication fatal to-the enforcement of the plaintiffs’ claim. The case of Conolly v. Hyams (47 App. Div. 592) presented a very different question. In that casé there was no judgment rendered upon a counterclaim, and the plaintiff’s sole default was in failing to obtain the architect’s certificate. It was held that the mere failure to produce the certificate' did not authorize a dismissal of the complaint on the merits, The work, however, was all done, and the right of the plaintiff, to recover on proper proof was undoubted. There was no adjudication of a'.violation of the contract. Here the ■ decision is that the plaintiffs have no right to recover, because the work never has been and never may be done, and compensation has been decreed to the defendant for the damages which he has sustained by reason of that condition,.and the violation of the contract which it involves.

I-think the defendant is also entitled to fifteen dollars costs under the provisions of section 332 of the Municipal Court Act (supra), subdivisions 2 and 5. , ,

The order should accordingly be reversed, with ten dollars costs and disbursements, and the motion granted,, with costs.

, Bartlett, Jenks, Rich and Miller, JJ., concurred. /

Order of the Municipal Court denying motion to amend the judgment reversed, with ten dollars costs and disbursements, and motion granted, with costs. ...  