10 Wend. 555 | N.Y. Sup. Ct. | 1833
By the Court,
The plaintiff is not entitled to costs. His claim as established at the trial did not exceed $200. He claimed only the balance due upon the two first lots of timber, which his counsel stated to be $11,84, and the value of the last lots, which he proved to be $138,52, making together $150,36. The whole value of all the timber delivered by the plaintiff to the defendant was not claimed by him, but only the balance after deducting the payments. Those payments were made specifically on account of that transaction; they were made in money; they were properly payments, and not a set-off. Nor did the debts, demands and accounts of both parties established on the trial exceed $400. The demands of the plaintiff as claimed and established were but $150,36, and the defendant only claimed payments to the amount of $105, and a deduction for defects in the value of the timber, $27,06; making together $132,06; thus showing the demands of both plaintiff and defendant to be only $282,-42. I perceive no reason why this action should not have been prosecuted before a justice of the peace.
The motion therefore is denied.
Ex parte Levi A. Mills vs. New-York C. P.
A plaintiff recovering less than fifty dollars in a court of record is not entitled to recover costs, though his claim, as established at the trial, exceed $200, if it be reduced by payments ; if reduced by set-offs, he is entitled to costs. Nor is he entitled to costs on the ground that the demands exceeded $400, unless the demands in dispute and established mi the trial exceed that sum; payments made are not debts, demands, or accounts, within the meaning of the statute.
This was an application for a mandamus. Levi A. Mills sued Peter Pratt in the New-York common pleas in an action of assumpsit; the defendant
By the Court, Nelson, J. It is declared by statute, that where the plaintiff shall recover any sum in a court of record he shall recover costs, if it appear that his claim as established at the trial exceeded #200, and was reduced by set offs ; or that the debts, demands and accounts of both parties establishedontke trial exceeded #400. See 2 M. S. 614, § 9. This case does not come within either clause of this section : it is not within the first clause, because, admitting the plaintifl’s claim as established at the trial to have exceeded #200, it was reduced by payments acknowledged to have been made by the defendant and not by set offs ; but I think it may well be questioned whether the plaintiff's claim, amounted to #200: all he demanded was abalance of #87, with the interest thereof. Nor is the case within the second clause of the section above referred to: the debts, demands and accounts of both parties, in dispute between them, did not 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 intent of the legislature in this case may bo discovered by reference to an analogous provision in the act regulating justices’ courts, by which a justice is prohibited from taking cognizance of matters of account, where the sum. total of ¡the accounts of both partios proved to the satisfaction of the justice exceed #400 ; 2 R. 8. 226, § 4, sub. 4; and by a subsequent provision, “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, exceed #400, judgment of discontinuance shall be rendered against the plaintiff, with costs.” 2 It. S. 235, § 54. These provisions shew that the jurisdiction of the justice does not depend upon the amount of the accounts¡as exhibited, but upon their amount as proved; that is, if the amount in contestation exceeds ,#400, the justice loses his jurisdiction, otherwise not. So in courts of record, if the debts, demands and accounts in dispute or in contestation, and established on the trial, exceed #400, and the plaintiff recovers any sum, he is entitled to costs. Such was not the case here ; the payments mutually made cannot be 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. The motion must be denied, with costs.
This case was decided 6th April, 1833.