Ingraham, J.

The plaintiff recovered in this action $16.09. The defendant claims to be entitled to costs under section 305 of the Code.

By section 304, it is clear that the plaintiff is not entitled to recover costs; and by section 305, the defendant is entitled to costs of course—'Unless the plaintiff is, under the previous section.

I should have no difficulty in applying this rule to the present case, were it not for the decision of the general term in Bait a. Lignot (3 Abbotts' Pr. R., 190), in which case it was held that the defendant was not entitled to costs in a case where the plaintiff recovered less than $50, if he reduced the amount of the plaintiff’s recovery below that amount by a counter-claim.

Without any interference with that decision, which is not in accordance with decisions on that point in other districts, I am authorized by Justice Clerke to say, that the principle of that decision was not intended to be applied to any cases in which there was no counter-claim set up in the answer.

In the present case, the answer contains no counter-claim, and the plaintiffs only recover the damages, amounting to $16.09. I think there is no doubt but that the defendant is entitled to costs.

Section 303 provides that costs may be given upon the judgment.

Section 304 says that costs shall be allowed to the plaintiff of course, in certain cases.

*37And section 305 says that costs shall be allowed of course to the defendant, unless the plaintiff is entitled to them.

The reason given against the defendant’s claim for costs is, that he is not the prevailing party in the judgment.

These sections must be taken together.

Costs are to be allowed to the prevailing party in the judgment, if he recovers $50 or more, and not otherwise. If it depended solely on his being the prevailing party, he would be entitled to costs on any recovery ; but that is limited by section 304, and if under that section the plaintiff does not recover costs, the defendant is entitled to them of course.

The defendant is entitled to costs, and the clerk is directed to adjust the same, and insert them in the judgment record, to be filed by plaintiff. If the plaintiff does not enter up judgment within five days, the defendant may enter the judgment.