Majority
p. 672MADISON PAPER STOCK CO. v. MAURICE O’MEARA CO. (Supreme Court, Appellate Term. May 7, 1909.) Argued before GILDERSLEEVE, P. J, and DAYTON and GOFF, JJ.
Headnote
Costs (§ 146[1] )—Grounds—Amount op Recovery.A defendant, who pleads a counterclaim which exceeds plaintiff’s admitted demand and recovers judgment for the excess, is not entitled to costs calculated on the amount of his counterclaim, under Municipal Court Act (Laws 1902, p. 1586, c. 580) § 332, subd. 7, requiring costs to be based on the amount of defendant’s recovery.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 146.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by the Madison Paper Stock Company against the Maurice O’Meara Company. From a judgment for defendant, plaintiff appeals.
Modified and affirmed.
H. A. Rosenberg, for appellant.
Howard Campbell, Jr., for respondent.
The plaintiff sued for $208. His claim was admitted by defendant, who interposed; however, a counterclaim for $240.76. The trial established the counterclaim, and defendant was given judgment for the balance, $38,56, and $20 costs. This was incorrect. Subdivision 7 of section 332 of the Municipal Court act (Laws 1902, p. 1586, c. 580) provides that the costs are based upon the sums for which the defendant “recovers judgment,” not the amount of his counterclaim. The defendant here “recovered judgment” for $36.58, and thus was not entitled to costs.
The judgment must be modified, to exclude the $20 costs, and, as so modified, affirmed, with $10 costs on this appeal to the plaintiff.