
    PINDER against STOOTHOFF.
    
      Supreme Court, Second District; General Term,
    
      December, 1868.
    Costs.—Actions of which Justices of the Peace have Jurisdiction.—Allowance.
    The right of a plaintiff to costs of course, upon succeeding in an action in a court of record for recovery of money, is limited to cases where he recovers fifty dollars or more, notwithstanding the amount claimed in the complaint may have been too great to allow a court of a justice of the peace to take cognizance of the action.
    
    Jurisdiction of the action, and not of the claim of damages made in it, determines the plaintiff’s right to costs, if the recovery in the court of record be for less than fifty dollars.
    Where the plaintiff recovers a verdict, however small, the defendant is .not. entitled to an allowance, on recovering costs under the statute because the verdict was for less than fifty dollars. The recovery of judgment entitling the defendant to the allowance of a commission on the plaintiff’s claim, is a recovery on the issue tried, not a recovery of costs* merely, because of plaintiff’s failure to recover enough to.carry costs. *
    Appeal from a judgment.
    This action was brought by William Finder, Jr.,, plaintiff and appellant, against Eliza Stoothoff, defendant and respondent.
    The action was brought in the city court of Brooklyn.. Plaintiff claimed ten thousand dollars damages for harboring and enticing his wile. The jury gave him a verdict for six cen's damages.
    
      The clerk denied the plaintiff’s application for costs, and adjusted the defendant’s costs at eighty-four dollars and ninety cents; and on motion of defendant’s attorney the city judge allowed the .defendant two hundred dollars as an additional allowance to the costs. Plaintiff’s motion to set aside the adjus'ment of costs was denied by the court, and judgment was entered for the whole amount of costs and allowance, less the amount of the verdict. From this judgment the plaintiff appealed.
    Pray, Knaébél & Pray, for the appellant.
    I. The judgment, having been entered in favor of the defendant, against whom a verdict was rendered for damages, is irregular, and should be set aside. (1.) In an action of which a court of justice of the peace has no jurisdiction, the plaintiff, upon a recovery, is entitled to costs ■by the express provision of the statute {Code, § 304, ¡subd. 3). (2.) A court of justice of the peace has no /jurisdiction except what is expressly conferred. The ■ only cases in which jurisdiction has been conferred upon -such courts by the legislature are enumerated in the 'Code, in section 53; and the following section (54) enu■merates certain classes of cases of which, although included in the classes mentioned in section 53, the justice shall not have jurisdiction. So that section 53 of dhe Code will determine who is entitled to costs. (3.) Prior to 1862 the provision of law in reference to costs was very different. Subdivision 3 of section 304 of the iCode therein, contained the words “according to section 54,” and read as follows: “In the actions of ..'which, ‘ according to section 54, a court of justice of the .peace has no jurisdiction,’ ” so that under the law as it then stood, the right to costs was restricted to the classes of cases expressly mentioned in section 54, as ■ cases in which the justice’s court should not have jurisdiction, leaving parties with other causes of action which they could not bring in the justice’s court, to go without redress, except upon penalty of paying costs to the defendant, even if successful, unless they recovered fifty dollars. (4.) That the law as it then stood, was considered as working an injustice, is shown by the decisions rendered under it (Worden v. Brown, 14 How. Pr., 327), and the legislature in 1862 {Laws of 1862, 850, ch. 460),' applied the remedy by striking out subdivision 3 of section 304, the reference to section 54, leaving the law a s’" it now stands, which provides the remedy. (5.) By the provisions of section 53, and section 2 'of Laws of 1861, which determine this question, a ju=itice’s court, has jurisdiction of the cases enumerated, and “no others,” except, &c., and this case is not enumerated. Subdivision 2 of section 53 expressly confines 'this jurisdiction of the justice’s court in an action for injuries to rights pertaining to the person, to an action where the damages claimed do not exceed two hundred dollars. (6.) The sum claimed determines the justice’s jurisd'ction. and not what is actually due, or what the justice or jury would actually find on trial. The provision should receive a literal construction. There is no room nor occasion for the application of any other rule. Such has been the construction of this see/ion by the court, prior to the amendment of 1862. In Bellinger v. Ford (14 Barb., 250), decided in 1852, the plaintiff recovered judgment for seventy dollars (a justice’s court having then juris liction to the amount of only one hundred dollars), but-in his declaration claimed judgment for two hundred dollars. The justice made return that no objection, was made on the trial on that account. Hand, J., delivering the opinion, said that “ the parties could not confer upon the justice jurisdiction to try a cause where more than one hundred dollars were claimed,” and the general term reversed the judgment (see, also, Yager v. Hannah, 6 Hill, 631). In Rockwell v. Perine 15 Barb., 574), and Bowditch v. Salisbury (9 Johns., 365), the damages claimed determined the question. (7.) The language of the statute, section 53, subdivision 2, should receive- a literal construction. The court, in various cases which arose before the amendment of 1862, were asked, in view of the hardship of the cases before them, to construe section 304 as applicable to cases not enumerated in section 53, as well as to those mentioned in section 54 ; but, while admitting the injustice and hardship of the law, they declared that it must be literally construed, and the legislature must furnish the remedy (Worden v. Brown, 14 How. Pr., 327 ; Laughran v. Orser, 15 Id., 284).
    II. The court ei red in granting the allowance of two hundred dollars to the defendant.- (1.) If gran tel, it should have been a per centage on the recovery, and not on the amount claimed (see Saratoga & Washington R. R. Co. v. McCoy, 9 How. Pr., 341). The word “recovery” is used in the statute, section 309. (2.) As the court can only find the defendant entitled to costs at all by disregarding the word “ claimed” in section 53, subdivision 2, the same rule-should be applied in con-construing section 309, and the words “claim” disregarded, as there remains the word “recovering,” to which the provision can apply.
    III. If it be contended that section 304, subdivision 3 ''applies to the nature of the action, and that the limitation of the amount over which the justice has jurisdiction, does not affect the construction of this section, we contend (1.) That in ascertaining the intention of the legislature, the words of a statute, if of common use, must be understood in their natural, plain, obvious and ordinary signification (1 Kent Com., 432 ; Holmes v. Carley, 31 N. Y., 289); (2.) The court has heretofore passed upon similar language in a similar statute, in a case involving the question of a justice’s jurisdiction (Yager v. Hannah, 6 Hill, 631). (3.) If resoit is to be had to the occasion of the law, then we claim that the legislature were obviously induced to omit the reference to section 54, upon account of the hardship in which plaintiffs were involved by the law as it then stood. Section 305 of the Code allows costs of course to the defendant, in the cases mentioned in section 304, unless the plaintiff be entitled to costs. Section 304 allows costs of course to the plaintiff upon a recovery, in actions of which a court of justice of the peace has no jurisdiction ; and in an act:on for the recovery of money where the plaintiff shall recover fifty dollars. In certain action's therein specified, of which this is not one, plaintiff shall recover no more costs than damages. Section 53 defines the jurisdiction of justices of the peace. Subdivision 3, an action for damages for injury to rights periaining to the person . . if the damages claimed do not exceed two hundred dollars. Section 54 defines actions where justices shall not have jurisdiction, one of which is “criminal conversation.” In Chase v. Hale (8 Johns., 461), it was decided that justices had jurisdiction for enticing away a wife. Such an act is an injury to rights pertaining to the person. The plaintiff insists that, having claimed more damages than two hundred dollars, the justice is ousted of jurisdiction. The answer to that is, that he was wrong in claiming more than his actual damages, which were six cents, and that he cannot, by wrongfully enlarging his claim, recover the costs of a court of record. Subdivision 1 of section 53 gives jurisdiction to justices “ in actions arising on contracts for the recove;y of money only, if the sum claimed does not- exceed two hundred dollars.” Yet it has uniformly been held that in such actions, if the plaintiff claims more than two hundred dollars, but recovers less than fifty dollars, the defendant is entitled to costs (Spring Valley Shot & Lead Co. v. Jackson, 2 Sandf., 622 ; Crim v. Cronkhite, 15 How. Pr., 250).
    
      
      J). H. Barnard, for the defendant and respondent,—
    
      
       To the same effect is Blank v. Westcott, Ante, 225.
    
   J. F. Barnard, J.

By section 53, subdivision 3, of the Code of Procedure, civil jurisdiction was given to justices of the peace of this action, if the damages claimed had not exceeded two hundred dollars. The plaintiff claimed ten thousand dollars damages, and brought his action therefor in the city court of Brooklyn. The recovery was for six cents.

By section 54 of the Code, it is provided that justices of the peace shall not have cognizance of certain actions. This action is not among those named in that section. Justices of the peace thus have given them cognizance of this action, but no jurisdiction to try it if the damages claimed exceed two hundred dollars. By section 304 of the Code, costs are given to a plaintiff upon a recovery “in the actions of which a court of justice of the peace has no jurisdiction.” Jurisdiction of the action, and not of the claim of damages, as made in it, determines the plaintiff’s right to costs, if therecovery be for less than fifty dollars. The plaintiff was not entitled to costs, and, by section 305, must pay costs.

The extra allowance of two hundred dollars to defendant was erroneously allowed. The plaintiff obtained a verdict; he is entitled to judgment for the amount of his verdict; he must pay costs, because the amount of his recovery is too small to entitle him .to costs.

The defendant must recover judgment to entitle him to a per centage on the plaintiff’s claim (Wilkinson v. Tiffany, 4 Abb. Pr., 98). The recovery of judgment entitling a party to commissions on the plaintiff’s claim, is a recovery on the issue tried, and not a recovery of costs, by reason "of the too small recovery of plaintiff. The issue tried was decided in favor of plaintiff; he recovered. The order granting two hundred dollars per centage on plaintiff’s claim should, therefore, be reversed, and the order granting costs in this a'ction to defendant should be affirmed, without costs on this appeal to either party.

Gilbert and Tappeet, JJ., concurred.

Lott, J.

I concur, but think the judgment should be modified by deducting two hundred dollars, the amount of extra allowance therefrom, and affirmed as to the balance.  