majority">Hilton, J.

The plaintiff sued as indorser and holder of a promissory note made -by the defendant. The answer set up a counter claim against the payee while he was the holder of the note, and alleged that it came to the plaintiff’s possession after maturity, and subject thereto. On the trial before the referee, the greater part of the counter claim was allowed, and the plaintiff recovered hut $26.84. The report awarding this sum having been taken up by the defendant and filed, the clerk adjusted the defendant’s costs at $121.15, and after deducting the sum found due the plaintiff, judgment was entered against him for the balance of $94.27 in favor of the defendant. The plaintiff moves to vacate and set aside this judgment upon the ground that he was the prevailing party at the trial, and, therefore, no costs or judgment in the action can be recovered or entered against him.

In support of this view he refers to the decision in Kalb v. Lignot, 8 Abbott P. R. 190, which certainly goes to the extent of declaring, in a case similar to this, that as the defendant was not the prevailing party within the meaning of section 303 of the Code, he, therefore, could not recover costs.

Although the opinions of the learned judges in the case cited are entitled to great respect and consideration, yet, after a careful perusal of sections 303, 304, 805 of the Code, I cannot agree with them in the views expressed in the decision inferred *271to. Section 303, after repealing all statutes establishing or regulating costs or fees of attorneys and counsel in civil actions, declares that there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the’ action. In no proper sense can language of this kind be saido to control the positive and mandatory character of the two following sections. By § 304, “ Costs shall be allowed, of cours&; to the plaintiff, upon a recovery in the following cases.”

Richard M. Harrington, for the appellant.--, for the respondent.

Ti* AS. ^

Suhy4 “In an action for the recovery of money where the plain _ff shall recover fifty dollars, or more.”

The plaintiff’s right to costs, “ of course,” is not dependent merely upon his being the prevailing party, but rests entirely upon the fact whether, in an action falling within the subdivision referred to, he recovers “ fifty dollars or more.” In this case, the recovery being under $50, it is very clear that the plaintiff is not entitled tó costs; and as § 305 provides that “ costs shall be allowed, of course, to the defendant in the actions mentioned in the last section, unless the plaintiff is en- ■ titled to costs therein,” it seems to me equally clear that the judgment in this action, in favor of the defendant, was properly entered, and the motion to vacate it must be denied.

The plaintiff appealed from the order entered upon this decision, to the general term,

Brady, J.

In addition to the opinion of Judge Hilton at special term, it is only necessary to say, that this is not a cáse of which a justice would have no jurisdiction under section 54 of the Code.

1st. It is not a matter of account between the parties. The defendant had no claim against the plaintiff. He had a claim against .the payee of the note sued upon, and the note, having been .transferred after maturity, was taken by the plaintiff sub*272ject to equities existing in favor of the maker, who is the defendant.

2d. It is not a ease where the recovery exceeds the sum of two hundred and fifty dollars. The first subdivision of the third section of the Act to reduce the several acts relating to the district courts into one act, passed April 13, 1857 (Laws 1857, vol. 1, p. 707), confers jurisdiction upon the district courts, in a matter of account, where the recovery does not exceed $250, “notwithstanding the accounts of both parties may exceed $400.” The jurisdiction is based upon the sum recovered. The sum recovered here is $26.34.

Daly, First Judge.

As the plaintiff, by the 4th subdivision of the 304th section, is not entitled to costs, it follows, in my judgment, as a matter of course, from the 305th section, that the defendant is entitled to costs. The 4th subdivision of section 304 declares, in effect, that the prevailing party shall not recover costs in actions for the recovery of money, unless he recover fifty dollars or more, and the next section, 305, provides that if in such an action the plaintiff is not entitled to costs, that costs shall be allowed to the defendant. These two sections are clear and explicit, and are not controlled by anything contained in section 303.

Order appealed from affirmed, with costs.

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