
    The Madison Paper Stock Company, Appellant, v. The Maurice O’Meara Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Municipal Courts — Procedure — Costs — To defendant on counterclaim.
    Where, in an action brought in the Municipal Court of the city of New York to recover $208, defendant recovers judgment for the excess of his counterclaim, he is, under section 332(7) of the Municipal Court Act, only entitled to costs based upon his recovery and not upon the amount of his counterclaim.
    Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, first district, borough of Manhattan.
    H. A. Rosenberg, for appellant.
    Howard Campbell, Jr., for respondent.
   Per Curiam.

The plaintiff sued for two hundred and eight dollars. His claim was admitted by defendant who interposed, however, a counterclaim for two hundred forty dollars and seventy-six cents. The trial established the counterclaim, and defendant was given judgment for the balance, thirty-eight dollars and fifty-six cents and twenty dollars costs. This was incorrect. Subdivision 7 of section 332 of the Municipal Court Act provides that the costs are based upon the sum for which the defendant recovers judgment”—not the amount of his counterclaim. The defendant here “ recovered judgment ” for thirty-six dollars and fifty-eight cents, and thus was not entitled to costs.

The judgment must be modified to exclude the twenty dollars costs and, as so modified, affirmed, with ten dollars costs on this appeal to the plaintiff.

Present: Gildersleeve, Dayton and Goff, JJ.

Judgment modified and, as modified, affirmed, with ten dollars costs on this appeal to plaintiff.  