
    H. M. Goldstein Co., Inc., Respondent, v. Naday & Fleischer, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1920.)
    Costs—City Court of New York — counterclaim — when plaintiff not entitled to costs.
    Where in an action brought in the City Court of the city of New York to recover damages for breach of a contract to deliver goods, the defendant successfully counterclaims for an unpaid balance under the same contract, and the judgment entered in favor of plaintiff for the difference between the amount of the verdict in favor of each party, is less than $250, the plaintiff is not entitled to tax a bill of costs.
    Bijur, J., dissents.
    Appeal by the defendant from an order of the City Court of the city of New York refusing to strike out a bill of costs taxed in favor of the plaintiff.
    Henry G. K. Heath, for appellant.
    Solon B. Lilienstem (Samuel D. Lasky, of counsel), for respondent.
   Delehanty, J.

This action was brought in the City Court to recover the sum of $1,282.50 claimed as damages for breach of contract in failing to deliver goods.

The defendant counterclaimed for an unpaid balance under the same contract, claiming $620.63. After trial the jury rendered the following verdict: “ Verdict for the plaintiff and assess the damages at $779. Verdict for the defendant on counterclaim for $639.49.”

Judgment was entered in favor of plaintiff for the difference between the two verdicts, i. e., $139.51. Thereupon, the clerk taxed costs and disbursements in favor of the plaintiff, and upon motion made by the defendant to strike out the bill of costs, the court below denied the same holding that “ the amount of recovery is determined, not necessarily by the amount of the judgment, but by the allowance of the claim on the trial.” In this position we think the learned justice was in error.

The right to tax costs is purely statutory and is governed by section 3228 of the Code of Civil Procedure. That section provides (subd. 5) that where an action is brought in the City Court which “ except for the- amount claimed ” could have been brought in the Municipal Court, the plaintiff shall recover no costs or disbursements unless he shall recover $250 or more.”

Concededly this action could have been brought in the Municipal Court “ except for the amount claimed ” and plaintiff has not “ recovered ” $250. The amount of the final judgment and not the amount in controversy determines the right to costs. Sheridan v. Simon, 179 N. Y. Supp. 872.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Wagner, J., concurs; Bijur, J., dissents.

Order reversed, with ten dollars costs.  