
    Stilwell and Montross v. Staples.
    A plaintiff who sues in a court of record, in an action arising on contract, and for the recovery of money only, and proves contested demands, which, with those established by the defendant, exceed $400 in amount, is entitled to costs as a matter of course, if he recovers any sum whatever. A justice of the peace has no jurisdiction of such an action, within the meaning of sub. 3 of section 304 of the Code.
    Demands contested by the pleadings, are “proved,” within the meaning of that word, as used in section 54, sub. 3, if admitted at the trial The admission at the trial dispenses with other evidence, and is itself the proof, on which the justice acts.
    A plaintiff is not required to commence an action in a justice’s court, and prove demands, which, with those proved by the defendant, shall exceed $400, and then be dismissed, as a necessary preliminary to suing in a court of record. It is enough to entitle him to costs, that the facts, as proved in a court of record, establish it to be one, of which a justice of the peace, by § 54, has no jurisdiction.
    Before all the Justices, except Hoffman, J.,
    October 11, 1856.
    This action was brought to recover the sum of $657.76 and interest, for manufacturing articles of clothing, and for materials and trimmings furnished. The answer denied that the labor and materials were worth so much, and sets up as a counter-claim, that defendant delivered to plaintiffs, to be manufactured into clothing, goods of the value of $3,000, which the plaintiffs agreed to manufacture, and to insure against loss and damage by fire; that a part of them, of the value of $855, was destroyed by firé; that they were, in fact, at the time of loss, so insured, and that the plaintiffs, before this action was brought, had received money arising from such insurance more than sufficient to satisfy their claim, and prayed that sufficient of such moneys be applied to satisfy their claim, and that the defendant have judgment for the balance. On the trial, plaintiffs’ claim was admitted to be, including interest, $832.97. The amount of the defendant’s claim was, by consent, to be ascertained by the court, subject to the opinion of the court at General Term, whether, upon the facts proved, the defendant was legally entitled to be credited with any part of the insurance moneys realized by the plaintiffs from the policy in force, at the time of the loss. The court decided that the defendant was legally entitled to $831.82 of such moneys, being enough to satisfy the plaintiffs’ claim, less $1.15, and for that sum the plaintiffs had judgment. Each party claimed the costs of the action as a matter of right, and that point the court had now decided. A reply was put in to so much of the answer as set up a counterclaim.
   By the Court. Oakley, Ch. J.

The defendant insists, that this being an action for the recovery of money, the plaintiffs cannot recover costs, for the reason that they have recovered less than $50, and that, as they are not entitled to costs, he is entitled to them as a matter of course, under section 305 of the Code.

The plaintiffs insist, that this is an action of which, according to section 54, a court of a justice of the peace has no jurisdiction, and therefore their right to costs is absolute.

Section 304 of the Code declares, that “ costs shall be allowed, __ of course, to the plaintiff upon a recovery, in the following cases— “ In an action of which, according to section 54, a court of a justice of the peace has no jurisdiction.”—Sub 3.

Section 54, reads thus: “ But no justice of the peace shall have cognizance of a civil action,” in certain cases which it enumerates. Its 3d subdivision is in these words: “ nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars.”

The claim of the plaintiffs, the amount of which was controverted by the answer, as established at the trial, of itself exceeded $400. This was extinguished, except the small sum which the plaintiffs recovered, by claims in favor of the defendant, which he proved at the trial. Although the amount of the plaintiffs’ claims was admitted at the trial, yet such admission was as much proof of it, within the meaning of the statute, as if it had been established by witnesses in open court. The existence of the claim on the part of the plaintiffs, to the amount demanded, was contested by the pleadings, and that of the defendant was wholly denied. We think it quite clear that section 54 prohibits a justice of the peace from taking cognizance of such an action. Section 304, sub. 3, is explicit, that costs shall be allowed to a plaintiff, in such a case, as a matter of course, if he recovers any amount. A justice of the peace could not investigate the claim of the defendant, and on proof of it to his satisfaction to $831.82, in amount, allow it as proved, and give a valid judgment in favor of the plaintiffs for the difference between the two claims. A plaintiff is not required to commence an action in a justice's court, and prove his accounts to an amount exceeding $400, including those proved by the defendant, and be dismissed from that court in consequence, as a necessary preliminary to commencing an action " in a court of record. It is enough to entitle him to costs, that the facts of his case, as proved in a court of record, establish it to be one, of which a justice of the peace, by section 54, has no jurisdiction. That section, by declaring that a justice shall not take cognizance of an action like this, when the facts are such as have been proved in this case, nor of an action of slander, or assault and battery, specifies them as cases of which he has no jurisdiction, within the meaning of sub-division 3, of section 304.

Under any other construction of the Code, a plaintiff, having any amount less than $50 due to him, would be remediless, if the accounts of both parties exceeded $400. If he stated his whole cause of action, and claimed damages for over $100, a justice of the peace would have no jurisdiction, because section 53 is express, that he shall only have jurisdiction when the sum claimed does not exceed $100. If he claimed just $100, and took judgment for that sum, his own account would be merged in the judgment and extinguished, and the defendant might then bring a separate action and recover Ms whole claim. The neglect of a defendant, in a justice’s court, to set off his demands against the plaintiff, is no bar to an action to recover them, when they amount to $100 more than the judgment which the plaintiff shall have recovered. (2 R. S. 4th ed. 236, § 56.) [58.]

And, in a justice’s court, “if upon the trial of a cause, it shall appear that the-amount of the plaintiff’s claim together with the demands set off by the defendant, according to the preceding provisions,” (the provisions of the statute in relation to set-offs,) “ exceed four hundred dollars, judgment of discontinuance shall be rendered against the plaintiff, with costs.” (Id. §52.) [Sec. 54.] We think it obvious that these statutes expressly prohibit a justice of the peace from passing judgment between parties, upon demands of each against the other, arising upon contract, and amounting together to over $400, when such demands are con tested. That, in such a case, a plaintiff who sues in a court of record, and proves contested demands, which, with those established by Ms adversary, exceed $400 in amount, is-entitled to costs, as a matter of course, if he recovers any sum whatever.

In this view of the case, the plaintiffs are entitled to the costs of the action, and judgment will be entered accordingly.

StilweU & Swain, for plaintiffs.

G» Bainbridge Smith, for defendant.  