Plaintiff demanded in its summons $2,001.79 (an amount admittedly beyond the jurisdiction of the court). Plaintiff moved to discontinue without costs. Defendants consented to the discontinuance but insisted upon costs. The court permitted the discontinuance and imposed thirty-seven dollars and fifty cents costs. Appellants now urge, and correctly as I think, that pursuant to section 164 of the Municipal Court Code the costs should have been fifty-five dollars.
Upon a reading of the material subdivisions of that section, namely, 1, 7, 8 and 9, it appears that defendants are entitled to one-half of the costs “ based on plaintiff’s demand in the summons,” which would be ten dollars costs for fifty dollars demanded, fifteen dollars for any amount under two hundred dollars, and for every additional one hundred dollars or fractional part thereof five dollars. Full costs on this basis would be one hundred and ten dollars, and one-half thereof fifty-five dollars.
*487Respondent contends that the learned judge below correctly applied subdivision 12 of section 164: “ The costs provided for in this section shall in no event exceed the sum of .seventy-five dollars.” In my opinion, appellants’ view of the application of this subdivision is correct, namely, that it refers only to the net or ultimate amount of costs allowed and is not to be applied as has. been done in the case at bar by holding that the total amount of costs ever to be considered cannot exceed seventy-five dollars and that plaintiff is entitled to only one-half of that amount. On the contrary, a reading of the various subdivisions to which I have referred makes it clear to me that the correct computation is that the defendants are entitled to a certain amount of costs, which is described as one-half of a certain other amount, and that the resultant amount shall in no event exceed seventy-five dollars. The judgment should be modified accordingly, with costs to the appellants.
Respondent urges on the authority of certain cases cited that no costs at all should have been awarded where it appears on the face of the proceedings that the court had no jurisdiction of the subject-matter. The cases cited, however, as I read them merely intimate it to be a proper course that, where want of jurisdiction appears upon the face of the proceedings, the trial court should dismiss the suit without costs. I do not understand what difference it makes how or where want of jurisdiction appears, but it is unnecessary to decide whether the course indicated is held to be the only correct one or should have been pursued in the instant case; because plaintiff here afforded the court no opportunity to follow it. What actually happened was that the plaintiff elected to discontinue and thus brought himself within the provisions of the Municipal Court Code and outside of the scope of the *488decisions referred to and of the rule which he invokes. It seems to me also that a court always has “ jurisdiction ” either to dismiss an action or to permit a discontinuance.
This case is an exceptional one in that the summons demands a recovery.in an amount beyond the jurisdiction of the court. The error thus committed by plaintiff, however, affords to my mind no ground for refusing to defendants the amount of costs prescribed by law and apportioned to the peril to which they have been subjected.
Appeal dismissed, with costs.