158 N.Y.S. 322 | N.Y. App. Term. | 1916
This action was brought to recover $1,000. Defendant interposed a counterclaim of $1,000, which was after trial dismissed upon the merits and a judgment rendered for the plaintiff for $165.
The clerk taxed costs at $55 under the assumption that the amount of costs should be based upon the counterclaim, pursuant to the provisions of subdivision 2, section 164, of the Municipal Court Code.
An order was made by the trial judge, upon motion, reducing the costs to $15, the amount allowed upon a recovery for that amount by sudbivision 1 of section 164 of the Code.
Subdivision 2 of section 164 of the Municipal Court Code, regulating costs, is as follows: “ To the plaintiff. If the defendant interposes a counterclaim in excess of plaintiff’s claim and the plaintiff recovers judgment, costs shall be allowed on the amount of the counterclaim at the same rate as if it were the amount of the plaintiff’s recovery. If the counterclaim is less than the plaintiff’s claim, costs shall be governed by plaintiff’s recovery.”
-It is only in the event that the amount of the counterclaim is in excess of the plaintiff’s claim that costs may be taxed and allowed to plaintiff based upon the amount of the counterclaim. Under the Municipal Court Code a defendant may counterclaim for the sum of $1,000, which is the jurisdiction of the court. The object of subdivision 1, section 164, was evidently to penalize the defendant who interposed an invalid counterclaim regardless of the amount of the plaintiff’s claim. Where the amount of the counterclaim is equal to or less than the amount of plaintiff’s claim, sub
The judgment is affirmed, without costs, inasmuch as the parties have stipulated that neither party have costs upon this appeal.
Blackmab and Kappeb, JJ., concur.
Judgment affirmed, without costs.
