
    Leonard Jones versus Jewett Archer.
    Where a justice, having decided in favor of the defendant, upon the merits, taxes his costs, but includes in them a part of the costs of the plaintiff, and gives judgment for the whole amount, the judgment may be reversed as to the costs, and affirmed as to the residue.
    Certiorari to review a judgment of one of the assistant justices, in and for the 12th Ward of the city of New-York.
    The plaintiff, in error, brought an action of assumpsit in the court below, against the defendant, in error, and declared for work, labor, and materials. At the trial of the cause, several witnesses were introduced by each party, and the evidence upon the merits was contradictory. The justice, after weighing the testimony, decided in favor of the defendant; and upon taxing the costs, he included therein several items of the plaintiff’s costs, amounting in the whole to $4.14. The plaintiff, thereupon, brought the cause before this court by a certiorari, and Mr. W. H. Elting, in his behalf, insisted that the judgment was erroneous, both on account of the error as to the costs, and as being against the weight of evidence. [He cited Dennison v. Collins, 1 Cowen’s R. 111. Field v. MeVickar, 9 John. R. 130.]
    
      Mr. Cannon, contra,
    
    contended that the judgment was according to the evidence; but if it was not, that this court would not undertake to reverse it, where the testimony wp contradictory. He insisted that all the costs were to be taxed against the losing party, as a matter of course.
   Per Curiam.

The justice having given judgment for the defendant below, on the merits, taxed his costs, and included in them the costs of the plaintiff, or a part of them, and rendered judgment for those costs in favor of the defendant. This was erroneous, on the authority of the case of Dennison v. Collins, [1 Cowen’s Rep. 111.] In that case, the judgment was affirmed as to the damages, and reversed as to the costs, on the ground that one item in the bill was illegally charged.

Upon the merits, in this case, the justice decided that the plaintiff ought not to recover. There was evidence to support that view of the case, and we do not reverse a justice’s judgment, upon the ground that he has decided against evidence, unless the mistake is very clear.

Judgment reversed as to the costs, and affirmed as to the residue.

[W. H. Elting, Att'y for the plff. J. M. Cannon, Att'y for the deft.]  