Section 305 of the Code does not mean that the defendant shall be entitled to costs against the plaintiff, in all cases where the plaintiff is not entitled to them; this section must be necessarily read in connection with, and be controlled by section 303, which says, “ that costs shall be. allowed to the prevailing party in the suit upon the judgment.” A mere reduction of the plaintiff’s demand, by set-off, or any other description of counter-claim, below the amount of $50, does not entitle him to costs against the plaintiff. The defendant certainly is not.the prevailing party; he claimed a large amount in his favor for damages, no portion of which was allowed, and the plaintiff’s claim was reduced by a set-off merely to $32, for which he is entitled to judgment, as the prevailing party.
But as he has recovered less than $50, he is not entitled to costs. (§ 304, sub. 4). It would be no more proper to compel him to pay costs to the defendant than if he sued in the first instance for a balance of $32, after crediting the defendant with the set-off, which the referee has allowed.
The Code could not have contemplated any such result. The consequences in both instances are similar and consistent—• requiring the plaintiff to pay his own costs. The defendant could have avoided the expenses of the litigation, by offering, pursuant to section 385, to allow judgment to be taken against him for the amount reported by the referee.
I concur with the decision of the special term. The order should be affirmed, however, without costs.
Roosevelt, J.Added to his opinion delivered at special *193term, (Ante 33), the following remarks, and filed the whole as his opinion upon the appeal.
It is said that section 305 of the Code provides that “ costs shall be allowed of course to the defendant, unless the plaintiff be entitled to costs and that by the previous section it is declared, that “ costs shall be allowed of course to the plaintiff only when he shall recover fifty dollars or more.” How, as costs, by section 303, are in no case to be allowed, except to the “ prevailing party,” it is obvious that when the Code afterwards says that they shall be allowed to the plaintiff under certain circumstances, and to the defendant under other-circumstances, it means, if he be the prevailing party. Certainly the defendant, in this case, as against the plaintiff, i& not the prevailing party. The technical “recovery” is with the plaintiff; and although something is adjudged to the defendant, more, by thirty-two dollars, is adjudged to his adversary. Either then both are prevailing parties, or only the plaintiff is. In neither case can costs be allowed to the defendant as against the plaintiff. To do so would be to award costs to defeat instead of to victory;—to the party overcome instead of to the party “ prevailing.”
Order affirmed.