
    Michael Sherry, App’lt, v. John C. Cary, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 4, 1888.)
    
    Costs—Counterclaim:—When plaintiff in New York superior court-entitled TO COSTS ON VERDICT FOB LESS THAN FIFTY DOLLARS—CODE Civ. Pro., §§ 3228, 2863, subd. 4.
    In an action in the New York superior court, where the plaintiff sued to recover seven items of account, aggregating $552.50, and the defendants pleaded two counterclaims, aggregating $561.26, and the jury rendered a verdict for $23.59, Held, that as a justice of the peace would have had no jurisdiction of such an action, the plaintiff is entitled to a full hill of costs.
    Appeal from a judgment of the general term of the New York superior court, affirming two orders of the special term in relation to costs. The facts sufficiently appear in the opinion.
    
      Edward P. Wilder, for app’lt; Nelson Smith and G. W. Smith, for resp’t.
    
      
       Reversing 13 N. Y. State Rep., 275.
    
   Earl, J.

This action was commenced in the New York-superior court, and the complaint contained seven causes of action, aggregating $552.50, as follows:

1. For commission on sale of real estate.......... $135 50
2. On promise to pay plaintiff his debt against third person if he would not sue............ 157 00
3. For money loaned............................ 25 00
4. For procuring tenant......................... 50 00
5. For money expended......................... 63 00
6. For services as to Vanderbilt’s house.......... 50 00
7. For services in proéuring tenant.............. 72 00

The answer, besides denials, set up two counterclaims, aggregating $561.26, as follows: For work done, $376.06; money received by plaintiff to defendant’s use, $185.20.

The jury rendered a verdict in favor of the plaintiff for-$23.59. Both parties claimed the costs of the action-They were taxed in favor of the defendant, and the question for our determination is which party was entitled to them.

Upon the trial the plaintiff gave evidence to support each of the causes of action alleged in the complaint, and the defendant gave evidence to support each of the counterclaims alleged in the answer. It is undisputed that the jury came into court with their verdict in the following form: “We find for the plaintiff on the first claim with interest, $244.34; on the second claim, $283.50, and the seventh claim, $130. We find for the defendant, on the first claim, with interest, $634.26; balance in favor of the plaintiff, $23.59.” Under the direction of the trial judge the jury rendered a general verdict in favor of the plaintiff for the balance, $23.59. Upon these facts it is clear that the plaintiff was entitled to the costs of the action.

It is provided in subdivision 4 of section 2863 of the Code,, that a justice of the peace cannot take cognizance of a civil action “ where, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice, exceeds $400; ” and in subdivision 3 of section 3228, it is provided that the plaintiff upon a recovery by him in a court of record, shall be entitled to the costs of the action of course, in such a case. It was encumbent upon the plaintiff herein to show before he could have the costs taxed in his favor, that the sum total of the accounts proved to the satisfaction of the jury by both parties, exceeded $400. This he did by the affidavits of his attorney, and abstracts from the stenographer’s minutes of the trial. It is true that the-trial judge did not permit a special verdict to be entered, specifying the different items which entered into the general verdict and the precise mode by which it was reached. But,, nevertheless, the jury came into court and rendered the special findings above mentioned, and they were in no way set aside or annulled by any subsequent action of the jury. The result of the special findings was finally entered as their-verdict. This was most satisfactory evidence to show that, accounts aggregating more than $400, had been proved to the satisfaction of the jury.

The counterclaims alleged by the defendant grew out of independent transactions with the plaintiff, were in no way connected with the causes of action alleged in the complaint, and had not, in any way, been applied by the parties in reduction of the plaintiff’s claims. Therefore the causes of action alleged in the complaint, and the counterclaims alleged in the answer, were, at the time of the trial, so far as they were established by proof, subsisting accounts between the parties within the meaning of subdivision 4, section 2863 of the Code, and the action could not have been commenced and tried m justice’s court. The Spring Valley S. L. Co. v. Jackson, 2 Sandf. R., 622; Ex parte Mills v. N. Y. Com. Pleas, 10 Wend., 557; Lablache v. Kirkpatrick, 8 Civ. Pro. R., 343; Stillwell v. Staples, 3 Abb., 365; Boston Mills v. Eull, 1 Sweeney, 359; Gilliland v. Campbell, 18 How., 177; Glackin v. Zeller, 52 Barb., 147; Ward v. Ingraham, 1 E. D. Smith, 538; Brady v. Durbrow, 2 E. D. Smith, 78; Fuller v. Conde, 47 N. Y., 89.

Erom the opinion pronounced at the general term, it appears that costs were denied the plaintiff by. that court on the ground that he did not show before the clerk as taxing officer; that the accounts proved to the satisfaction of the jury, exceeded $400. But as we understand the record he’ did make that proof.

The first paper in the record is a notice of motion by the plaintiff’s attorney for a review of the clerk’s taxation of costs in which it is stated that the motion will be based upon the papers useffibefore the clerk upon the taxation of costs and now upon his files; and then follows the statement that “the following are the papers used before the clerk and referred to in the foregoing motion.”

Immediately below that is an affidavit of the plaintiff’s attorney sworn to on the 9th of July, 1887, in which he states the various items of the plaintiff’s claims contained in the seven causes of action with the amounts due thereon including interest; also the amounts of the defendant’s counterclaims including interest, and then as follows: “ Upon each and every one of the counts contained in the complaint, as well as those contained m the answer, evidence was offered in support thereof at the trial, and they were likewise discussed by counsel in their summing up to the jury as well as by the court in its charge to the jury. The jury returned a verdict for the plaintiff for the sum of $23.59, arriving at said verdict, as they openly declared to the court, by allowing the first, third and seventh counts, respectively, of the plaintiffs, which amounted, with interest to the day of the trial, to the sum of $657.85, and allowing the first of defendant’s counterclaims, which with interest to the date of the trial, amounted to the sum of $634.26, leaving a balance in plaintiff’s favor of the sum of $23.59, for which sum they rendered their verdict. I annex hereto a copy of the minutes of the official stenographer who took the same upon the rendition of the verdict herein and the proceedings that took place before the court there.after.”

Then follows an extract from the stenographer’s minutes .showing that the jury came into court and tendered their verdict in the form stated above, and that the trial judge directed them, against the wishes of the attorneys for both parties to render a general verdict in favor of the plaintiff for the balance, $23.59, leaving out of their verdict all the nest.

In another affidavit made by the plaintiff’s attorney on the 5th day of August, 1887, he states as follows: “Proof was given of each of the seven causes of action set forth in the plaintiff’s complaint, and also on each of the two causes of action set forth in the defendant’s counterclaims and as a matter of fact, all of said several claims and counterclaims were litigated with great earnestness upon the trial, and the aggregate of them amounted to upwards of §1,800, inclusive of interest. The jury in their verdict allowed three of plaintiff’s claims and one of defendant’s counterclaims, disallowing all the others, and the several claims and counterclaims thus allowed aggregated over $1,200, and the balance being struck between them, the jury rendered a verdict in favor of plaintiff against the defendant for $23.59.

These facts, I submit, bring this action within the class of actions enumerated within section 2863 of the Code of Civil Procedure, as exceeding the jurisdiction of a justice of the peace, and entitle plaintiff to the costs of this action. Accordingly, I presented and submitted to the clerk of this court a bill of plaintiff’s costs, and asked him to tax and enter them under the judgment to be entered upon said verdict, and established, as I. thought, the foregoing facts-before him, both by affidavits, which were uncontradicted, and by extracts from the stenographer’s official minutes off the trial upon the coming in of the jury with their verdict,, and which official minutes established that said verdict-was, in fact, made up by said jury in manner as herein-before stated, and so reported to the court. The clerk, however, refused to tax and allow the plaintiff’s costs upon the ground, as would appear from his memorandum opinion filed in connection therewith, not that the proofs of the-foregoing facts were insufficient or inadequate, for said facts were not questioned, but upon the ground that said claims and counter-claims were connected as arising out of the same transaction, and hence that it was plaintiff’s duty to give credit for the defendant’s counter-claim which the jury allowed, and strike a balance for such amount as might have been sued for in the justices’ court.”

These facts were in no way denied before the clerk or in any of the subsequent stages of the controversy between the parties over the costs. It was, therefore, proved before the clerk that the accounts or claims proved to the satisfaction of the jury exceeded $100, and he should have taxed the plaintiff’s costs and entered them in his favor. Tompkins v. Greene, 21 Hun, 257; affirmed in this court 82 N. Y., 619.

We are, therefore, of opinion that the orders of the special and general terms should be reversed, the judgment in favor of the defendant for costs vacated, and that the clerk should be directed to tax the plaintiff’s costs, who-should also recover his subsequent costs in all the courts»

All concur.  