
    Catharine Youker, as Administratrix, etc., of Margaret Flander, Deceased, Respondent, v. Emerthew P. Johnson, Appellant.
    
      Costs where a verdict for less than $50 is recovered in the Su/prerm Court —proof required that the sum, total of the accounts of both parties exceeded §400.
    Where an action involving a matter of account is originally brought in the Supreme Court and the plaintiff recovers a sum less than §50, it is incumbent upon him, in order to entitle him to costs, to show that the action was one of which a justice of the peace had not jurisdiction, viz., that the sum total of the accounts of both parties proved, exceeded §400. (Code Civ. Proc. § 2863, subd. 4.)
    The fact that the case was tried before a jury and that they made no specific findings, does not relieve the plaintiff from the burden of showing that accounts aggregating more than §400 were proved to the satisfaction of the jury. It is not sufficient for him to show that accounts aggregating more than §400 were contested upon the trial and submitted to the ¡jury.
    Appeal by the defendant, Emerthew P. Johnson, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 11th day of February, 1901, denying the defendant’s motions for a retaxation of the costs and for the vacation of the taxation of the plaintiff’s costs, and for the striking of the amount thereof from the judgment theretofore entered in the action.
    The complaint sets forth five separate causes of action, consisting of an account stated, §154.40; a loan of $55; property received and converted, $230; use and occupation of farm, $100; services rendered $312; aggregating $851.40, and demands judgment for $796.40.
    The answer contains a general denial of the first cause of action, general denial, plea of Statute of Limitations and payment of the second cause of action, general denial of the third cause of action, general denial of the fourth cause of action, the Statute of Limitations and payment, general denial of fifth cause' of action and plea of payment, and sets up a counterclaim of $400 for services rendered for plaintiff’s intestate, counterclaim of $600 for moneys paid out at request of plaintiff’s intestate and for her benefit, another counterclaim of $265 for board, lodging, care of plaintiff’s intestate, for lumber and material furnished to repair buildings, and for-goods, wares and merchandise furnished to plaintiff’s intestate, and demands judgment for $1,265.
    The reply contains general denial and pleads Statute of Limitations.
    The action was tried before a jury and verdict of twenty-five dollars for the plaintiff was rendered. .
    The defendant’s application for the taxation of his costs was denied by the clerk of Fulton county, and the plaintiff’s costs, on her application to the clerk, were taxed at $196.60.
    The motions of the defendant for an order directing the clerk of Fulton county to tax his costs and to vacate the taxation of the plaintiff’s costs were heard 'together by the Special Term, and were denied.
    From the order denying said motions this appeal is taken.
    
      George W. Ward, for the appellant.
    
      Andrew J. Nellis, for the respondent.
   Edwards, J.:

The question presented for our determination is which party is entitled to costs.

The.recovery being for less than fifty dollars, the plaintiff is not entitled to costs, and the defendant is so entitled, unless the action is one of those specified in subdivision 4 of section 2863 of the Code of Civil Procedure, of which a justice of the peace has no jurisdiction. (Code Civ. Proc. §§ 3228, 3229.) That section provides 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 four hundred dollars.” Section 2950 provides that upon the trial of such an action, before a justice of the peace, judgment of discontinuance must be rendered against the plaintiff, with costs.”

It is not necessary that the action should have been commenced in the Justice’s Court and have been there discontinued by reason of want of jurisdiction to entitle the plaintiff to costs (Glackin, v. Zeller, 52 Barb. 153; Tompkins v. Greene, 21 Hun, 257), but where the action is originally brought in the Supreme Court, and the plaintiff’s recovery is of a sum less than $50, it is incumbent on him to show that the action is one of which, by the provisions of subdivision 4, section 2863 of the Code, a justice of the peace has no jurisdiction. This must be shown by proof that the sum total of the accounts proved exceeds $400. It is not sufficient that the sum total of the accounts claimed or contested exceeds that sum. (Tompkins v. Greene, supra; affd., 82 N. Y. 619 ; Sherry v. Cary, 111 id. 517.)

When the action is tried before the court or a referee the question is determined by the facts found, and when tried before a jury by the sum total of the accounts shown to have been proved to their satisfaction. (Fuller v. Conde, 47 N. Y. 89; Sherry v. Cary, supra.) Notwithstanding in the latter case this may be difficult, if not impracticable, unless specific findings have been made by the jury, it is a risk which the plaintiff assumes when he elects to bring his action in this court instead of resorting in the first instance to a Justice’s Court. Where the recovery is less than fifty dollars he cannot subject the defendant to the large costs of this court, unless he shows that the action could not have been tried in a Justice’s Court.

In the case of Sherry v. Cary (supra), although the jury rendered a general verdict for $23.59 for the plaintiff, it also appeared from the minutes that they specifically found the amount of the accounts of the plaintiff and of the defendant and that the amount so found exceeded $400. The court there said ; This was most satisfactory evidence to show that the accounts, aggregating more than. $400, had been proved to the satisfaction of the jury.”

There is nothing in the record before us from which' it may be determined whether or not the accounts of the parties, proved to the satisfaction of the jury, exceeded the , sum of $400. The conflicting affidavits of counsel used on the motion at the Special Term shed no light on this question. Nor does the charge to the jury, which, by consent of counsel, was used, on the motions at Special Term, enable us to determine the question. From the charge it appears that the court submitted to the jury, as questions of fact, whether an account for $154.40 had been stated, as claimed in the first cause of action; what had been paid on the $55 loan, constituting the second cause of action; and the length of time for which services had been. rendered by' the plaintiff’s intestate to the defendant and the value thereof, constituting the fifth cause of action. The court also submitted to the jury, as a question of fact, whether the defendant had paid debts of the plaintiff’s intestate amounting to $382.38, at her request. What the finding of the jury was in respect to the claims submitted to them, it is impossible to determine. They found a general verdict for the plaintiff for $25, and in what manner that sum was arrived at cannot be ascertained from the record, nor even be conjectured. The most that can be ascertained from the papers before us is that sufficient evidence was given of claims exceeding $400 to justify their submission to the jury. But the question of costs must be determined, not by the amount claimed or contested, but by the amount of accounts as proved on the trial to the satisfaction of the tribunal whose province it is to ascertain such amount. If this were otherwise, manifest injustice might often be done by subjecting the defendant to a large bill of costs in an action which might have been tried in a Justice’s Court.

The authorities cited by the counsel for the l’espondent do not support his contention that the question of costs may be determined by the amount of accounts contested on the trial. An examination of those authorities shows that the amount of unliquidated accounts contested was found in each case by the referee, the court or the jury, to exceed $400. In Glackin v. Zeller (52 Barb. 147) there were contested unliquidated claims proved to the satisfaction of the referee to exceed $400, and in Gilliland v. Campbell (18 How. Pr. 177) the amount of the unliquidated accounts, as found by the referee, exceeded that sum. In Stilwell v. Staples (5 Duer, 691) the plaintiff’s claim was admitted on the trial to be $832.97, and the amount of the defendant’s claim was decided to be $831.82, and the court there said that a plaintiff who sues in a court of record and proves contested demands, which, with those established by his adversary, exceed $400 in amount, is entitled to costs, as a matter of course, if he recovers any sum whatever.” The like fact appears on examination of the other authorities cited, and I think the proposition that a mere contest of claims exceeding $400 entitles the plaintiff to costs where the sum recovered is less than $50 is unsupported by the authorities.

The order appealed from should be reversed and the defendant’s motions should be granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and defendant’s motions granted, with ten dollars costs.  