Todd v. Beck

PER CURIAM.

The defendant appeals from so much of a judgment as taxes $15 in favor of the plaintiff upon a dismissal of the defendant’s counterclaim. Plaintiff sued, claiming $154. The defendant counterclaimed for $175. Upon the trial the defendant’s counterclaim was dismissed, and the jury found a verdict upon plaintiff’s claim for the sum of $43.80. Upon motion of the plaintiff, the clerk.was directed to tax $15 to the plaintiff upon the dismissal of defendant’s counterclaim.

The right to tax costs is given by statute, and in the Municipal Court is fixed by section 332 of the Municipal Court Act and the several subdivisions thereof. The only provision in that section for the recovery of costs by the plaintiff upon the dismissal of a defendant’s counterclaim is contained in subdivision 4, which provides that:

“Where an action is brought by the plaintiff for a sum less than $50, and the defendant shall have interposed a counterclaim amounting to $50 or more, and the plaintiff recovers judgment upon the counterclaim, the same sum as plaintiff would have been entitled to recover if the amount of his claim were the amount of the defendant’s countérelaim.”

As the action was brought by plaintiff for a sum over $50, he is not entitled to recover costs upon the dismissal of defendant’s counterclaim.

Judgment modified, by striking therefrom the sum of $15 costs, and, as modified, affirmed, with $15 costs to appellant.