
    B. GEDNEY TOMPKINS, Respondent, v. GEORGE W. GREENE, Appellant.
    
      Costs in an action in the county court, where the recovery is less than $50 — u>hat the plaintiff must show to entitle himself to them — Code, § 304.
    To entitle a plaintiff, who recovers less than $50, in an action brought in a county court, to costs, on the ground that a justice’s court had no jurisdiction over the action, because it involved accounts exceeding in amount $400, he must prove not only that the sum of the accounts claimed exceeded $400, but that the sum of the accounts actually proved upon the trial was in excess thereof.
    Appeal from an order of the Westchester County Court, denying a motion made by tbe defendant for an order directing that costs be taxed by tbe clerk in bis favor.
    Tbe action was brought in tbe Westchester County Court, tbe plaintiff claiming for goods, wares and merchandise sold and delivered, and for tbe rent, of certain premises occupied by tbe defendant, which claims amounted in all to the sum of $156.08. Tbe defendant answered, alleging payment, and setting up a counterclaim of $271.68. On tbe trial tbe plaintiff proved tbe whole amount of bis claim, and tbe defendant proved $113.20 of tbe counter-claim set up by him.
    A verdict was rendered in favor of tbe plaintiff for $42.88. • Tbe clerk taxed tbe costs in favor of tbe plaintiff. Tbe defendant then made a motion at a Special Term of tbe County Court, asking that an order be made directing that tbe clerk tax tbe costs in bis favor, which motion was denied, and from tbe order denying such motion tbe defendant appealed to this court.
    
      Francis Lcn-Tcm, for tbe appellant.
    
      WilUam Gr. Valentine, for tbe respondent.
   Gilbert, J.:

Tbe recovery being of a sum less than $50, tbe plaintiff is not, and tbe defendant is entitled to costs, unless tbe action belongs to a class of which courts of justices of tbe perico have not jurisdiction. (Code, § 304-, subd. 4; § 305, § 304, subd. 3.) They have not jurisdiction of actions involving a matter of account when the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed $400. (Code, § 54, subd. 4.) ■

As this action was brought, not in a court of a. justice of the peace, but in the County Court, the mode provided by the statute of determining whether a justice’s court had jurisdiction or not could not he resorted to. Still, it is incumbent on the plaintiff to show that a justice’s court liad not jurisdiction. That is not done by proof that the sum total of the accounts claimed by both parties exceeded $400 ; for the statute has made the jurisdiction dependent upon the sum total of such accounts' proved, &c. If, therefore, wo take the only proof of the sum total of such accounts which the case affords — namely, the verdict of the jury upon the trial in the County Court — it appears that the sum total of such accounts amounted to only the sum of $269.28. It follows that the action was one of which justices’ courts have jurisdiction. That recourse may he had to the proof of the amount of the accounts given in the County Court to determine tbe question before us, seems to have been decided in several cases. (Glackin v. Zeller, 52 Barb., 146; Lultyor v. Walters, 64 Id., 419; Fuller v. Conde, 47 N. Y., 89.)

The order appealed from must he reversed, with $10 costs and disbursements, and the clerk of Westchester county be directed to tax the defendant’s costs and to enter judgment in his favor therefor.

. Barnard, P. J., and Pratt, J., concurred.

Order of County Court allowing costs to plaintiff reversed, with costs and disbursements, and costs ordered for defendant.  