
    George Adolph, Resp’t, v. Courtlandt De Cen et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 25, 1887.)
    
    1. Costs—Appeal ebom justice coubt—Who entitled to—When the BECOVEBY MOBE EAYOBABLE—CODE ClY. PBO. § 3070.
    Judgment was rendered in a justice’s court in the city of Buffalo in favor of the plaintiff for $200 and $5 28 costs. An appeal was taken to the superior court for a new trial stating that the judgment should have been for only $30 in favor of plaintiff. Plaintiff offered to reduce the judgment to $150. The answer was amended and a payment of $100 and counter-claims amounting to $380 set up and judgment demanded. A reply was served to the counter-claims. The referee found that the defendant was indebted to the plaintiff in the sum of $562, and that under the amended answer they established counter-claims amounting to $459.69 which left a balance due plaintiff of $102.31 with interest. Held, that the plaintiff was entitled to costs. That the amount he recovered exceeded the sum which he offered to accept in satisfaction of the judgment and also his recovery in the justice’s court.
    2 Counteb-claims—When extinguished—Code Crv. Pbo. §§ 2947 and 2948. sued 1
    The counter-claims were not extinguished by the judgment in the justice’s court under Code Civ. Pro. § 2947 for the reason that the amount of the counter-claim was $200 more than the judgment recovered before the justice Section 2948. subd. 1.
    3. Pbactice—Taxation of costs.
    The clerk had taxed the costs for plaintiff ex parte but on the return of the notice of retaxation had disallowed costs to plaintiff and taxed them in favor of defendant. The special term gave plaintiff costs, allowing the sum at which they were taxed by the clerk ex parte. Held,, error, that the defendant had a right to be heard before the taxing officer upon the items of the bill. That the correct practice would have been to set aside the taxation of the clerk and send the matter back to him with a direction to retax the plaintiff's costs on notice.
    Appeal from an order made at a special term of the superior court of the city of Buffalo, setting aside the clerk’s taxation of costs in this action in favor of the defendants, and allowing to the plaintiff the sum specified as costs and disbursements in a judgment entered by him herein, nineteenth May, 1886. The appeal has been duly certified to this court.
    
      Frank B. Perkins, for App’lts; Geo. M. Osgoodby. for Resp’t.
   Smith, P. J.

The following facts appear by the stipulation of the parties: Judgment was rendered in a justice’s court in the city of Buffalo, sixteenth November, 1878, in favor of the plaintiff against the defendants, for $200 damages and $5.28 costs. The complaint in the justice’s court alleged that defendants were indebted to plaintiff for whiskey barrels sold to, and cash paid for, defendants, and demanded judgment for $200. The answer was a denial only, The defendants appealed from the judgment to the superior court, for a new trial, alleging certain grounds of appeal, and stating that the judgment should have been more favorable to defendants, in that it should have been in favor of plaintiff for thirty dollars instead of $200. On tenth December, 1878, an offer to modify the judgment so as to reduce the recovery to $150, was made by the plaintiff, but it was not accepted. February 14, 1879, the appellants obtained an order in the superior court, giving them leave to amend their answer, and they accordingly served an amended answer, which set up (in addition to the answer in the .justice’s court), payment of $100 and upwards; and counter-claims amounting to $380.95, and demanded judgment against plaintiff for $450, besides costs. A reply was served to the counter-claim, and the cause was referred for trial. The referee reported that defendants were indebted to plaintiff in the sum of $562, and that under their amended answer they established counter-claims amounting to $459.69, which, deducted from plaintiff’s claim, left a balance due plaintiff of $102.31, which with interest upon it to date of report, amounted to $105.20. By the judgment in the superior court, the counter-claims of the defendants set up in their amended answer to the amount of $459.69 were satisfied and cancelled, and a recovery for $105.20 in addition was had by the plaintiff. Judgment was entered nineteenth May, 1886, on the report, for $105.20, with interest from date of report, $44.85, making $150.05, besides costs.

Upon these facts, we think the plaintiff is entitled to costs, for the reason that the counter-claims extinguished, and the sum reported in his favor, exceed in amount not only the sum which he offered to accept in satisfaction of the judgment, but also his recovery in the justice’s court. Code, § 3070; Tompkins v. Ives, 36 N. Y., 75, and cases there cited by Foster, J. The appellants’ counsel contends that the counter-claims should not be taken into the account, they having been extinguished, as he claims, by the justice’s judgment.

In that he is mistaken. Section 2947 of the Code cited by him does not apply, for the reason that the amount of the counter-claims is $200 more than the judgment recovered before the justice. Code, § 2948, subd. 1. It follows that so far as the order appealed from denies costs to the defendants and holds that the plaintiff is entitled to costs it is right.

But in allowing to the plaintiff as his costs and disbursements, the sum of $70.25 at which they were taxed by the clerk, ex parte, the order is erroneous. Instead of doing that, it should have set aside the taxation of the clerk and sent the matter back to him with a direction to re-tax the plaintiffs costs on notice. The defendants have not been heard before the taxing officer upon the items of the bill. The costs were first taxed ex parte, entered in the judgment and notice of re-taxation was then served. Defendants appeared and insisted that the plaintiff was not entitled to costs, but that the clerk should tax costs in favor of the defendants, and they presented their bill for that purpose. The clerk ruled accordingly and taxed defendants costs, and consequently there was no hearing upon the items of the plaintiffs bill, and no occasion to call them in question.

The order appealed from should be modified in accordance with these views, and, as so modified, affirmed, without costs of this appeal to either party.

Haight and Bradley, JJ., concur.  