¶1 By consolidating two actions, the plaintiff’s claim was $406. The defendant by answer set up a counter-claim for $300. To this the plaintiff replied. It could not perhaps be said that no testimony was given by defendant bearing upon his claim, but it was hardly enough to attract the serious attention of the referee, and does not seem to have been given for that purpose. It could in no view warrant a finding in its support, and so the defendant must have thought, for no request was made in regard to it. The report in favor of the plaintiff was for the exact amount claimed by her, and so is the *358 judgment. This is the matter in controversy, and as it is less than $500, an appeal cannot legally be taken from it (New Code, § 191, snbd. 3).
¶2 The motion to dismiss should be granted, with costs.
¶3 All concur, except Tracy, J., absent.
¶4 Motion dismissed.