
    BURDICK v. HALE.
    
      N. Y. Supreme Court ; Third Department, Sixth District, General Term,
    
    
      July, 1883.
    Action on an account.—Justice’s jurisdiction.—Costs.—References.—Code Civ. Pro. §§ 3863, 3228-3330.
    A justice of the peace has jurisdiction, in a matter of account, where the sum total of the accounts of both parties does not exceed four hundred dollars (Clode Civ. Pro. § 2863).
    In an action brought to recover the balance of an account, where payments toward satisfying the debt are proved to have been made by the debtor from time to time, such payments operate to extinguish the account, and it is the balance unpaid, after an application of these payments, which determines the question of jurisdiction. Such payments do not constitute part of the account, but operate to 'extinguish the debt pro tanto.
    
    In such an- action brought in a court of record, where the plaintiff recovers less than fifty dollars, and the sum total of the accounts of both parties is less than four hundred dollars, the defendant is entitled to the costs of the action, and not the plaintiff (Code Civ. Pro. §§ 3328, 3229 and 3230).
    The right to costs is declared by statute, and in such a case is absolute on the facts found to exist, A referee to hear and determine such action has no power to award costs. The facts control the right to costs.
    Appeal from an order of the Special Term of the Supreme Court denying the defandant’s motion for a re taxation of costs, and that the judgment entered be amended by striking out the costs of the plaintiff, and by inserting therein the costs of the defendant, and denying also that part of the defendant’s motion which asked that the clerk be directed to enter judgment for defendant for the amount of his costs, as adjusted, less the sum of $12.02, the amount of the plaintiff’s damages.
    The action was brought in the Supreme Court by Burdick & Bathbun, copartners, to recover a balance of account amounting to $65. The complaint alleged in substance that the plaintiff between 1874, and 1878, sold and delivered merchandise to defendant and lent him cash which, on the 19th day of June, 1878, together amounted with interest to about $566. The complaint further alleged that defendant was indebted to plaintiff in said sum of $566, less the credits of the defendant and the interest therein, to about the sum of $501, leaving due to plaintiff about the sum of $65.
    The defendant pleaded, among other things, payment, and alleged as a counter-claim an over-payment of $11.40, for which sum defendant asked judgment. By plaintiff’s reply and denial, the cause was at issue. The referee appointed to hear and determine the action reported in the plaintiff’s favor, as follows :
    “And as conclusions of law I find: That the plaintiff is entitled to a judgment against the defendant for the said balance ($10.25), with interest thereon from the 24th day of October, 1879, to this date, September 12, 1882, amounting in all to $12.02, with costs.”
    The referee found as a matter of fact, among other things:
    “ IY. That, during the time that said firm was doing business as aforesaid, beginning about February 10, 1874, and continuing to December 19, 1877, the said firm and defendant had mutual dealings and accounts, which, upon the part of said firm, consisted of goods, wares and merchandise sold and delivered to or for defendant, and for cash advanced to him; and upon the part of defendant, consisted of lumber, hides and produce sold by him to said firm, and cash paid to said firm, to apply on said account they had against him, which amount, at the last mentioned date, in the aggregate amounted to the sum of $742.41, as follows :
    
      Goods, etc., chargeable to defendant . $308.28
    Cash advanced.....165.70
    $473.98
    Lumber, hides, etc., sold said firm by defendant . . . $69.83
    Cash paid on account 198.90 268.73
    Leaving a balance in favor of said firm of $205.25 Upon which defendant paid,
    July 19, 1878 . . . $175.00
    And December 3.3, 1878 . . 20.00 195.00
    Leaving a balance unpaid of . . . $10.25
    That the money loaned and advanced by said firm to defendant was treated by said firm as a matter of book account, being entered in said account from time to time, as the various loans occurred.”
    Upon the adjustment of costs before the clerk the defendant’s counsel objected.to the adjustment of the bill in favor of the plaintiff, (1st.) Because it appeared by the referee’s report that the amount found due the plaintiff was less than $50. (2d.) Because it ap-
    peared from the referee’s report that the sum total of the accounts on both sides proved on the trial did not exceed $400. The defendant also presented to the clerk a bill of costs, and requested that it be taxed. The plaintiff’s counsel objected to any such taxation of defendant’s bill, because the plaintiff had re: covered and not the defendant, and because the referee had reported that the plaintiff was entitled to recover with costs.
    The clerk allowed the plaintiff’s bill of costs, and disallowed that of defendant.
    The defendant’s attorney then made the motion first referred to above, which was denied, and from the order of denial appealed to the general term of the court. The farther facts appear in the opinion of the court.
    
      George Scramling, for defendant, appellant.—I.
    A justice of the peace has jurisdiction of this action, or where, in a matter of account, the sum total of the accounts of both parties does not exceed $400 (Code Civ. Pro. § 2863 subd. 4 ; Id. §§ 3228, 3229, 3230).
    II. The facts found by the referee show that the total accounts of both parties did not exceed $400. The defendant’s payments constituted no part of the account, but they reduced the demand or account pro tanto (Crim v. Cronkhite, 15 How. Pr. 250 ; Hoodless v. Brundage, 8 Id. 263; Lamoure v. Caryl, 4 Denio. 370, 371, 372 ; Glackin v. Zeller, 52 Barb. 147, 154, 155; Abernethy v. Abernathy, 2 Cowen, 413, 416 ; Matteson v. Bloomfield, 10 Wend. 555 ; Brady v. Durbrow, 2 E. D. Smith, 78 ; Peet v. Warth, 1 Bosw. 653; Landsberger v. Magnetic Telegraph Co., 8 Abb. Pr. 35; Gilliand v. Campbell, 18 How. Pr. 177; Fuller v. Conde, 47 N. Y. 89 ; Tompkins v. Greene, 21 Hun. 257, 258).
    III. The right to costs is substantial, and when claimed by a party under a positive statutory provision does not involve any question of discretion (Lultgor v. Walters, 64 Barb. 417; Sturgis v. Spofford, 58 N. Y. 103).
    
      L. E. Bowe, for plaintiff and respondent.—I.
    The plaintiff was entitled to costs. The referee found that the aggregate of the mutual accounts was $742.71. There are no exceptions to the facts, no case made; so we are to rely upon the facts found by the referee.
    II. The entire claim of both parties was unliquidated and litigated upon the trial, and the Supreme Court had jurisdiction (Parker v. Eaton, 25 Barb. 122; Gilliland v. Campbell, 18 How. Pr. 177). A justice had no jurisdiction, as the amount in contestation ex-
    
      ceeded $400 and plaintiff was entitled to costs, if he recovered any sum (Mills v. N. Y. C. P., 10 Wend. 557, note; Stilwell v. Staples, 5 Duer, 691; Bradner v. Howard, 14 Hun, 420, 422; Glackin v. Zeller, 52 Barb. 147 ; Davis v. Spencer, 24 N. Y. 386).
    111. The referee’s finding that the plaintiff was entitled to judgment for, $12.02, with costs, was conclusive (Bailey v. Stone, 41 How. Pr. 346; Fuller v. Conde, 47 N. Y. 89).
   Bockes, J.

I am of the opinion that this case was within the jurisdiction of a justice’s court. The question is whether the sum total of the accounts between the parties, exceeded $400 ; that is, as we shall hereafter see, whether the balance of accounts between the parties, after an application of all payments made by them, exceeded $400. This question is to be determined by the findings of the referee (Fuller v. Conde, 47 N. Y. 89), which in this case state specifically the claims of the respective parties, the nature of the claims, and the payments made. It must be held in mind that payments go in extinguishment of the accounts, and that it is the balance unpaid after an application of the payments which settles the question of jurisdiction. In Crim v. Cronkhite (15 How. Pr. 250) the referee found that the plaintiff’s claims as proved amounted to $260.90 ; that the defendant’s payments and counter-claim as established by the proof amounted to $232.28 ; and that the payments included in the latter sum amounted to $95.85. The recovery by the plaintiff being less than $50, it was held that the defendant was entitled to costs. In Matteson v. Bloomfield (10 Wend. 555), the sum total of the plaintiff’s demands as proved was $550.36. Payments were proved to have been made reducing the balance remaining due to less than $50. Costs to the' plaintiff were refused. In Mills v. N. Y. C. P. (10 Wend. 557, note), the plaintiff’s demands were in the aggregate $521.60. The defendant’s set-off, as claimed, was $143, and his payments $374.68. The referee certified that the demand of the plaintiff, “ as established at the trial, exceeded $400, which was diminished more than. $300 by divers payments.” The recovery was less than $50. Costs to the plaintiff were refused. In this case Judge Nelson said, “ The debts, demands and accounts of both parties in dispute, between them, did exceed $400. The accounts as exhibited, exceeded that sum, but payments were shown on each side; and as far forth as payments were made, the account or demand of each of the parties was extinguished.” The learned judge added, in conclusion, “ The payments mutually made cannotbe considered as debts, demands, or accounts, within the meaning of this statute ; and deducting them from the accounts, the whole amount in controversy was less than $100.” So in Lamoure v. Caryl (4 Denio, 370, 372), it is said that “when payments have been made, the balance only would constitute a claim, demand or account within the statute.” The same rule of construction is recognized in Fuller v. Conde (47 N. Y. 89), and was there given application by the court. So it was held, in this case (Fuller v. Conde), that although the claims in suit exceeded $400, yet as there was an extinguishment of them by payment to an extent that left the balance less than $400, and the plaintiff’s recovery being less tlian $50, the defendant, and not the plaintiff, was entitled to costs.

Now, let us apply the law so settled by repeated decisions to the case in hand. The question is, did the balance of the accounts between the parties, after an allowance of the payments, exceed $400. Most certainly it did not. This is clearly shown by tabulating the items of the claims of the respective parties, setting down in the table the items of payment allowed by the referee. The case thus stands on the facts, as follows :

Deft in account with pl’ff’s firm. Cb. Db.
Goods, etc...... . $308.28
Cash advanced . • 165.70
$473.98
By lumber, hides, etc. $69.83
“ cash paid on account 198.90
“ payt. July 19, 1878 . 175.00
“ payt. Dec. 13, 1878 . 20.00
Judgment for balance 10.25
$473.98 $473.98

Now certainly, here are three items of payments, to wit, $198.90, $175.00, $20.00, $393.90. To this extent, according to the cases cited, the plaintiff’s account, demand or claim yvas extinguished, and, to adopt the language of the court in Lamoure v. Caryl, “ the balance only constituted the claim, demand or account within the statute,” to be considered in determing the question of jurisdiction. The balance in this case, under this construction of the law, was but $149.91; hence it was a case within the jurisdiction of a justice’s court.

It really makes no difference whether the defendant’s payments be applied in extinguishment of the money advancements, or in extinguishment of the items for goods, etc., sold and delivered. If applied upon the demand, for money advanced, the payments extinguished that demand, and left abalance of $228.20 to apply on the item for goods, etc. If applied upon the demand for goods, etc., the payment extinguished that demand and left $85.62 to apply on the money advances. It comes to this, that the payments by the defendant operated in extinguishment of the plaintiff’s demand pro tanto, and only the balance of the accounts between the parties can be taken into consideration in determining the question of jurisdiction here presented. Make the extinguishment by an application of the payments, and the balance of those accounts falls far short of $400. The case was therefore within the jurisdiction of a justice’s court. I need not comment on the distinction which exists and to be observed, in cases like the present, between payment and set-off. The question here is as to the effect of payments.

The referee awarded costs to the plaintiff. In this, he was in error ; indeed, he had no right to pass upon that question (Fuller v. Conde, 47 N. Y. 89). The right to costs is declared by statute, and is absolute on the facts found to exist.

I am of the opinion therefore that the order appealed from should be reversed; and that the motion made by the defendant should be granted. This will, in effect, also reverse that part of the judgment appealed from.

The defendant should have $10 costs of appeal and disbursements for printing; and also $10 costs of motion at special term.  