October 19, 1927.
Gerald J. Schwartz, for the plaintiff, for the motion.
Henry Hoelljes, for the defendant, opposed.
The plaintiff brought this action to recover the sum of $116.14. The defendant counterclaimed in the sum of $1,000. The case was tried before the court and jury and a verdict rendered in favor of the defendant and against the plaintiff upon its cause of action, and in favor of the plaintiff upon the defendant's counterclaim. The attorney for the defendant thereupon entered judgment taxing costs against the plaintiff in the sum of $15. The plaintiff urges that either the plaintiff is entitled to recover costs based upon the defendant's counterclaim or that neither party is entitled to costs.
The defendant bases his right to tax costs upon the ground that the plaintiff failed to recover a money judgment and relies upon the case of Li Mandri v. Weiss Sons ( 121 Misc. 667). In that case the plaintiff sued for $1,000. The defendant counterclaimed for $526.72. The decision of the court after trial was that the plaintiff was entitled to judgment dismissing the counterclaim on the merits, and the defendant was entitled to judgment dismissing the complaint on the merits. The clerk taxed costs against the plaintiff on the basis of $1,000 demanded in the summons and entered judgment in favor of the defendant accordingly. Upon the motion to review the clerk's taxation of costs the court held: "The plaintiff did not recover judgment in any amount whatsoever. Consequently the plaintiff is not entitled to costs even though the counterclaim was dismissed on the merits. See Mun. Ct. Code, § 164, subds. 1, 2. Then the sole question remains whether the defendant is entitled to costs under the provisions of subdivision 7 of said section 164 of the Municipal Court Code. I think that within the meaning of said section the defendant `recovers judgment after trial.' The plaintiff's claim was defeated and the defendant, notwithstanding the counterclaim, was the prevailing party and entitled to costs. Ballard Transfer Storage Company v. St. Paul City Railway Co., 129 Minn. 494; Gibbons v. Skinner, 150 A.D. 706."
The facts in the case at bar are reversed; here the defendant's counterclaim exceeded the amount sought for by the plaintiff, while in the Li Mandri case the plaintiff's claim exceeded the counterclaim of the defendant. The defendant in that case having succeeded in dismissing the claim of the plaintiff it was the prevailing party. In the instant case the plaintiff has prevailed over the defendant's counterclaim which exceeded the amount it sued for, and it is, therefore, entitled to tax costs upon the amount which the defendant sought to recover. In this case as in the former case, neither party recovered a money judgment against the other. In Garvey v. Strickland ( 94 Misc. 315, 316) the court said: "The object of subdivision 1, section 164, was evidently to penalize the defendant who interposed an invalid counterclaim regardless of the amount of the plaintiff's claim."
The defendant seems to base its right to tax costs against the plaintiff upon the fact that the plaintiff has not recovered a money judgment. The fact that no money judgment was recovered is immaterial; having succeeded in prevailing upon the defendant's counterclaim, which exceeded the amount it sought to recover, places the plaintiff in the position of the prevailing party. ( Boslow v. Rosenbaum Co., 120 Misc. 59, 60.)
Neither the plaintiff nor the defendant having recovered a money judgment against the other, it is obvious that the plaintiff is the prevailing party, having succeeded in obtaining a verdict in its favor upon the defendant's counterclaim which exceeded the amount plaintiff sought to recover.
The plaintiff is, therefore, entitled to tax costs against the defendant in the above-entitled action upon the sum of $1,000.
Motion is granted modifying the judgment entered herein by the defendant by striking out the item of costs therein contained.