Underhill v. Rushmore

Goodrich, R. J.: This.action was commenced in December, 1897, in the court of a justice of the peace in. Brooklyn to recover the value of the legal services of the plaintiff, on an account stated, for $183.58, and on quantum meruit for other similar services alleged to be worth $30. The answer set up payment, denied an account stated, and, by way of counterclaim, alleged a payment of $1,000 for the plaintiff’s use, on which he had paid $500, and also an advance of $225 for the use of the plaintiff’s wife, both of which the plaintiff promised to pay. The defendant demanded judgment-for these counterclaims. The plaintiff served a reply, denying the counterclaims. On- the return day, in-December, the action was removed to the County Court. In the County Court a. jury rendered a verdict of six cents for the plaintiff. The court denied a motion for a new trial, handing [205] down the following, memorandum': “The jury evidently found against the account stated and against both counterclaims. That left the claim for $27.50 for services. Under the proof it was competent to find that the value of the plaintiff’s services in those matters was 6 cents. Motion for new trial denied.” The cleric taxed the costs in favor of the defendant and the plaintiff moved to set aside the taxation, and from the order denying the motion the plaintiff appeals. ■Section 2863 of the .Code of Civil Procedure provides that a justice of the peace cannot take cognizance of a civil action. “ 4. Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars.” Section 3228 : “ The plaintiff is entitled to costs, of. course, upon the rendering of a final judgment in his favor, in * * * 3. An action specified in subdivision * * * fourth * * * of section twenty-eight hundred and sixty-three of this act,” that is, an action where the justice of the peace has no jurisdiction, because the accounts between the parties exceed $400. The word accounts in section 2863 has been construed as relating to demands, and is not restricted to running accounts. (Glackin v. Zeller, 52 Barb. 147; Crim v. Cronkhite, 15 How. Pr. 250.) It follows that the plaintiff, having recovered a judgment in his favor in an action of which the justice of the peace could not take cognizance, is entitled on the recovery of a judgment in his favor to receive costs, irrespective, of the fact that the judgment does not exceed fifty dollars. The order should be reversed. All concurred. Order reversed, with ten dollars costs and disbursements.