
    MAURICE ROSENKRANZ ET AL., TRADING, ETC., AS ROSENKRANZ & LEVINE, PLAINTIFFS AND RESPONDENTS, v. PAUL WOLF ET AL., TRADING, ETC., AS WOLF & MECHANIC, DEFENDANTS AND APPELLANTS.
    Submitted December 8, 1914—
    Decided March 9, 1915.
    1. Where a defendant in an action in the District Court sets forth in his notice of recoupment damages aggregating more than §500, although he waives the excess over §500, the court has no jurisdiction to entertain the recoupment.
    2. Where the Supreme Court reverses a judgment of the District Court, the question of the allowance of costs to the successful party in the Supreme Court is a matter resting in the discretion of the Supreme Court.
    On appeal from the Supreme Court.
    For the appellants, Nathan Erlich and Philip J. Schotland.
    
    For the respondents, Charles Elin.
    
   The opinion of the court was delivered by

Trenchard, J.

This action was brought in the First District Court of the city of Newark, and resulted in a judgment for the defendants. On appeal the judgment was reversed in the Supreme Court, and the latter judgment is now here for review.

We agree with the,result reached in the Supreme Court, but prefer to put the decision on a different ground.

The District Court gave judgment for the defendants on their notice of recoupment.

In their notice the defendants set forth damages aggregating more than $500 and waived the' excess over $500. In that situation the court had no jurisdiction to entertain the recoupment. Ward v. Hauck, ante p. 198.

If the plaintiffs thought, as they now here contend, that the allowance by the Supreme Court of costs to the defendants was improper, application should have been made to that court to correct it, since the question of the allowance of costs to the successful party was a matter resting in the discretion of the Supreme Court. (See Pamph. L. 1910, p. 236; Comp. Stat., p. 2016.) Lynch v. Public Service Ry. Co., 83 N. J. L. 783.

The judgment of the Supreme Court reversing the judgment of the District Court will therefore be affirmed.

We reach a similar conclusion in the case between the same parties tried and argued herewith, and in that case, too, the judgment of the Supreme Court reversing the judgment of the District Court will be affirmed.

For affk-mance—The Chancellor, Chibe Justice, Garrison, Trenohard, Parker, Minturn, Kalisoh, Black, Vredenburgi-i, White, Teritune, Heppenheimer, Williams, JJ. 13.

For reversal—None.  