“County Courts shall have * * * original jurisdiction in actions for the recovery of money onlyj where the defendants reside in the county, and in which the complaint demands judgment for a sum not exceeding two thousand dollars.”. (Const, art. 6, § 14.)
Jurisdiction over counterclaims is conferred by the sections of the Code of, Civil Procedure which define a counterclaim and enact rules respecting its allowance. (§§ 500-512.)
The contention of the appellant is that the County Courts have no *399jurisdiction of a counterclaim, “ unless it be considered as a cause of action in favor of the defendant against the plaintiff which may be brought against him in the main action, and which would, therefore, be governed by the same rule of jurisdiction ” as that conferred upon the court to entertain the plaintiff’s cause of action; hence, the court has no jurisdiction over a counterclaim which exceeds or where judgment is demanded for a sum exceeding $2,000. The proposition has for its foundation the premise, as stated in the brief for the appellant, that “ there is no specific grant of jurisdiction to the County Court over counterclaims.” It is further suggested that it may be asserted that section 348 of the Code of Civil Procedure extends the jurisdiction of County Courts' to cover counterclaims, and it is asked by virtue of what power did the County Court entertain jurisdiction of counterclaims prior to 1816, when neither this section nor any similar to it, existed ? It was by virtue of the power conferred by the act of 1852 (Chap. 392), amending certain sections of the Code of Procedure, in which the name “ counterclaim ” was given to the “ new matter constituting a defence,” authorized by the Code of Procedure of 1849 (Laws of 1849, chap. 438, § 149, subd. 2). The amendment of 1852 provided (amdg. § 149, subd. 2) that the answer of the defendant must contain a statement- of new matter constituting a defense or counterclaim, and in the amendment of section 150 defined a counterclaim in substance as it has been since and is now defined by section 501 of the Code of Civil. Procedure.
The Code of T849 provided:
“ § 8. This, act is divided into two parts.
“ The first relates to, the courts of justice-and their jurisdiction,
“ The second relates to civil actions commenced in the courts of this State after the first day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four relate to actions in all the courts of the State, and the others to actions in the Supreme Court, in the County Courts, in the Superior Court of the City of New York, in the Court of Common Pleas for the City and County of New York, in the Mayors’ Courts of cities, and in the Recorders’ Courts of cities, and to appeals to the Court of Appeals, to the . Supreme Court, to the County Courts, and to the Superior Court of the City of New York.”
*400By this provision, which was a re-enactment of section 8 of the "Code of 1848 (Laws of 1848, chap. 379), 'the rules of procedure* practice and pleading were made applicable to all the courts therein named.-. That section is omitted in the Code of Civil Procedure (Laws of 1876, chaps.' 448, 449), but the first act is entitled: “-An Act relating, to courts, officers of justice, and civil proceedings,” and chapter 1 is entitled : “ General provisions relating to courts and the members and officers thereof.” Title 1 of chapter 1 is entitled: The courts of the State ; their general powers and attributes, and general regulations pertaining to the exercise thereof.”'
It must, therefore, be inferred that the procedure in all the courts ■of record of original jurisdiction -enumerated in the Code of Civil Procedure (§ 2) is the same. The amount for which the defendant may take an affirmative judgment upon a counterclaim- is not specified, but it may be assumed that as the County Court has jurisdiction in actions for money only to an amount not exceeding $2,000, that jurisdiction over counterclaims is intended to be limited to a like sum.
In Heffron v. Jennings (66 App. Div. 443) it was held that the County Court had no jurisdiction in an action for slander in which the complaint demanded judgment for $5,000, and that the court had not power to allow the plaintiff to amend the complaint by reducing the amount of damages claimed to $2,000.
The. decision was placed upon the letter of the Constitution (art: 6, § 14) and the legislative enactment pursuant thereto, that the jurisdiction of County Courts shall extend in actions for money -only to actions in which the complaint demands judgment for a sum of money not exceeding $2,000 (Code Civ. Proc. § 340, subd. 3).
Where* however, the action is commenced by the service of a summons- the court acquires jurisdiction when it is served, and heneé has power to amend the complaint.- filed afterward, if ft demand judgment for too large an amount. ( Van Clief v. Van Vechten, 130 N. Y. 571, 581, 582.)
The situation here is analogous. Having acquired jurisdiction of the action, the court can control the form of the pleading subsequently filed and require the defendant to reduce the amount of its claim for damages by amendment to a sum within the jurisdiction of the court. ,
*401But why need the defendant amend ? The counterclaim here set up is in its character and substance such as an answer may contain. (Code Civ. Proc. § 501.) Where a counterclaim is established which equals the plaintiff’s demand, the judgment must be in favor of the defendant. Where 'it is less than the plaintiff’s demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff’s demand,, the defendant must have judgment for the excess or so much thereof as is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant’s right to recover from, another person so much thereof as the judgment does not cancel. (§ 503.) In a case not specified in the last section, where a counterclaim is established which entitles the defendant to an affirmative judgment demanded, in the answer, judgment must be rendered for the defendant accordingly. . (§ 504.) Why may not the County Court apply these rules to the counterclaim of the defendant, by the extinguishment of the. plaintiff’s cause of- action established upon the trial, and give judgment to the deféndant for the excess, if any, to the amount of $2,000, for which the County Court has jurisdiction?
If the defendant had set up the facts constituting the counterclaim in a manner and form now alleged to its damage in an amount exceeding the plaintiff’s claim, without alleging how much, and demanded judgment that the plaintiff take nothing because of the allegations of its complaint, and for the sum of- $2,000, there would not have been anything in the answer showing want of jurisdiction. The defendant would have made its proofs the same as under the issues as now framed, and the defendant would take judgment in accordance with the demand of the answer; Why may not this be done under the present answer as well? The court is not precluded. It may allow the defendant to make its proofs and, if the defendant elects, allow judgment to be taken for a sum within the jurisdiction of the court. In either case, under the pleading suggested and the one now interposed, the trial of the issue would be the same; the plaintiff would not be in any way or manner injured. The defendant might lose the rest of its claim, but that would be at its election. If the defendant, in an action brought in the County Court, may not interpose his counterclaim as suggested, great injus*402tice may be done. If, in an action upon a promissory note for less than $2,000, brought in the County Court. by a plaintiff who is insolvent, but indebted to the plaintiff on contract, the plaintiff’s note, perhaps, for $30,000, must the defendant allow judgment to go against' him and not be allowed to set up his demand as a counterclaim ?
If the question rested upon the application of equitable principles, certainly this would be most inequitable. But the case -rests upon rules applicable to the construction of statutes. The question is one of power, I am unable to see why the power may not be exercised in the manner suggested. There is no express constitutional or legislative inhibition.- That it. may be done is impliedly , suggested, if it has not direct approval, in the case of Van Clief v. Van Vechten (supra).
1 am of the opinion that the judgment of the County Court should be affirmed.
Interlocutory judgment reversed, with costs, with leave to the defendant to plead over again upon payment of the costs of the demurrer and of this appeal.