
    John F. Garvey, Appellant, v. Sarah E. Stickland, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    March, 1916.)
    Pleading — Municipal Court of city of New York — counterclaim — jurisdiction — appeal — Municipal Court Code, §§ 155, 164(1).
    Under the Municipal Court Code a defendant may counterclaim for the sum of $1,000 which is the jurisdiction of the court, and where the amount of the counterclaim is equal to or less than the amount of plaintiff’s claim the costs are governed by section 164(1) of said Code.
    While no appeal lies from an order of the Municipal Court of the city of New York denying or granting a motion to retax costs, an appeal from so much of the judgment as brings up for review said order is regular and can be heard pursuant to section 155 of the Municipal Court Code.
    Appeal from so much of the judgment of the Municipal Court of the city of New York, seventh district, borough of Brooklyn, as brings up for review an order retaxing costs.
    
      Julius S. Belfer, for appellant.
    Purdy & Stroksall, for respondent.
   Callaghan, J.

This action was brought to recover $1,000. Defendant interposed a counterclaim of $1,000, which was after trial dismissed upon the merits and a judgment rendered for the plaintiff for $165.

The clerk taxed costs at $55 under the assumption that the amount of costs should be based upon the counterclaim, pursuant to the provisions of subdivision 2, section 164, of the Municipal Court Code.

An order was made by the trial judge, upon motion, reducing the costs to $15, the amount allowed upon a recovery for that amount by sudbivision 1 of section 164 of the Code.

Subdivision 2 of section 164 of the Municipal Court Code, regulating costs, is as follows: To the plaintiff. If the defendant interposes a counterclaim in excess of plaintiff’s claim and the plaintiff recovers judgment, costs shall be allowed on the amount of the counterclaim at the same rate as if it were the amount of the plaintiff’s recovery. If the counterclaim is less than the plaintiff’s claim, costs shall be governed by plaintiff’s recovery.”

-It is only in the event that the amount of the counterclaim is in excess of the plaintiff’s claim that costs may be taxed and allowed to plaintiff based upon the amount of the counterclaim. Under the Municipal Court Code a defendant may counterclaim for the sum of $1,000, which is the jurisdiction of the court. The object of subdivision 1, section 164, was evidently to penalize the defendant who interposed an invalid counterclaim regardless of the amount of the plaintiff’s claim. Where the amount of the counterclaim is equal to or less than the amount of plaintiff’s claim, subdivision 2 does not apply and the amount of costs is governed by subdivision 1. No appeal lies from an order granting or denying a motion to"retax costs, but inasmuch as the appellant here has appealed from so much of the judgment as shall bring up for review the order retaxing costs, the appeal is regular and can be heard pursuant to the provisions of section 155 of the Municipal Court Code.

The judgment is affirmed, without costs, inasmuch as the parties have stipulated that neither party have costs upon this appeal.

Blackmab and Kappeb, JJ., concur.

Judgment affirmed, without costs.  