Pinder v. Stoothoff , 7 Abb. Pr. 433 ( 1868 )

J. F. Barnard, J.

By section 53, subdivision 3, of the Code of Procedure, civil jurisdiction was given to justices of the peace of this action, if the damages claimed had not exceeded two hundred dollars. The plaintiff claimed ten thousand dollars damages, and brought his action therefor in the city court of Brooklyn. The recovery was for six cents.

By section 54 of the Code, it is provided that justices of the peace shall not have cognizance of certain actions. This action is not among those named in that section. Justices of the peace thus have given them cognizance of this action, but no jurisdiction to try it if the damages claimed exceed two hundred dollars. By section 304 of the Code, costs are given to a plaintiff upon a recovery “in the actions of which a court of justice of the peace has no jurisdiction.” Jurisdiction of the action, and not of the claim of damages, as made in it, determines the plaintiff’s right to costs, if therecovery be for less than fifty dollars. The plaintiff was not entitled to costs, and, by section 305, must pay costs.

The extra allowance of two hundred dollars to defendant was erroneously allowed. The plaintiff obtained a verdict; he is entitled to judgment for the amount of his verdict; he must pay costs, because the amount of his recovery is too small to entitle him .to costs.

The defendant must recover judgment to entitle him to a per centage on the plaintiff’s claim (Wilkinson v. Tiffany, 4 Abb. Pr., 98). The recovery of judgment entitling a party to commissions on the plaintiff’s claim, is a recovery on the issue tried, and not a recovery of costs, by reason "of the too small recovery of plaintiff. The issue tried was decided in favor of plaintiff; he recovered. The order granting two hundred dollars per centage on plaintiff’s claim should, therefore, be reversed, and the order granting costs in this a'ction to defendant should be affirmed, without costs on this appeal to either party.

Gilbert and Tappeet, JJ., concurred.