Walp v. Boyd — 19 N.Y. St. Rep. 111

Majority

p. 111

Aaron B. Walp et al., Resp’ts, v. Robert J. Boyd, App’lt.

(City Court of New York, General Term,

Filed November 28, 1888.)

Headnote

Costs—When-dependant entitled to because op amount op recovery —Code Civ. Pro., § 2863—Jurisdiction op justice’s court.

The plaintiffs complained that the defendant as their agent sold their goods and collected for them the sum of $1,448.45, and that after deducting all proper credits there remained due and owing to the plaintiffs, $373.61. The defendant in defense contended that the commissions account should be credited with $1,348.32. He did not claim that plaintiff owed him this amount nor did he demand the affirmative judgment against him therefor. The defendant pleaded two independent counterclaims aggregating $170.80. The plaintiff had verdict for $47.46. Held, that the plaintiffs’ recovery being for less than fifty dollars, the defendant became entitled to the taxable costs. That the action was within the jurisdiction of the justice’s court.

Appeal from order made at special term affirming taxation of plaintiffs’ bill of costs.

A. B. Carrington, for app’lt; Carter & Seldner, for resp’ts.

The plaintiffs complained that the defendant, as their agent, sold their goods and collected for them on account thereof the sum of $1,448.45, and that after deducting all proper credits there remained due and owing to the plaintiffs $373.61, for which they demanded judgment. In striking this balance, the plaintiffs were in duty bound to give the defendant credit for all his commissions for the .amount of the collections, less commissions constituted

p. 112

their sole demand. The defendant, in defense, contended that the commission account should be credited with $1,318.32. He did not claim that the plaintiffs owed him this amount, nor did he demand an affirmative judgment against them therefor. All he claimed was that the commission side of the plaintiffs’ account should be credited with what he claimed to be the true amount of commissions, and in doing this he simply demanded that the plaintiffs should strike the true balance instead of that which they claimed. If the claims are to be called cross demands, they certainly originated in the same transaction, and the balance due constituted the only debt between the parties. So construed, the action is brought within the jurisdiction of a justice’s court. This is clearly proved by the figures.

The defendant pleaded two independent counter-claims,, one for $57.80 and the other for $50.

These aggregated............................... $107 80-

The plaintiffs’ verdict was for.................... 17 16

Total amount involved in the litigation.......$155 26-

Take it in the only other possible form, and we figure up-as follows:

True balance due plaintiffs...................... $155 26

Deduct the two independent counter-claims...... 107 80-

Amount of the plaintiffs’ verdict............. $17 16-

Even aggregating the $155.26 and the $107.80 makes but-$263.06, so that “the sum total of the accounts of both parties did not exceed, but was less than $100. Code, § 2863, subd. 1.

Calling the correct credit claimed for commissions “an offset or counter-claim ” does not alter its character. The complaint, answer and reply all -show that it was a mere claim that the proper credit be given, and the answer concludes with a prayer for an affirmative judgment of but $81.11. It is clear, therefore, that the plaintiffs’ recovery being for less than fifty dollars, that the defendant became entitled to taxable costs. Lablache v. Kilpatrick and Hayes v. O'Reilly, 8 Civ. Pro. R., 340, 346; and see Brady v. Smith, 1 City Ct. R., 175; Gregory v. McArdle, 1 How. Pr. (N. S.), 147.

It follows that the order appealed from must be reversed, with costs, and the clerk directed to tax costs in favor of the defendant.

McAdam, Ch. J.; Brown and Ehrlich, J., concur.