I am of opinion the facts show that this was an action, of which, according to section 54 of the Code, a court of a justice of the peace had no jurisdiction ; and that, therefore, the plaintiff was entitled to recover costs of the defendant. (Code, § 304, subdivision 3.) The settlement made by the parties of their accounts was found to be erroneous; and for that reason the accounts were not liquidated by the settlement, but were unliquidated so far as the trial was concerned. And as they exceeded $400, and must have been proved to exceed that sum, to the satisfaction of a justice of the peace, if the action had been brought in a justice’s court, such a court had no jurisdiction of the action. (Code, § 54, subdivision 4.) The action was necessarily brought in this court; and as I have before stated, the plaintiff was entitled to costs, although he recovered less than $50 damages. (See Code, § 304; Crim agt. Cronkhite, 15 How. Pr. Rep. 250.)
The facts found by the referee show that a justice of the peace had not jurisdiction of the action. Hence the referee’s conclusion of law, that the plaintiff recover costs as well as damages, was correct. The report of the referee stands as the decision of the court, and judgment was rightfully entered thereon, in the same manner as'if the action had been tried by the court. (Code, § 272.) The clerk or the plaintiff’s attorney made up the j udgment-roll, by including the report therein, in the same manner that he would .have included the *179decision of the judge, if the action had been tried by the court. (Code, § 281.)
I can see no good reason why the referee should not find the facts, that determine which party is entitled to costs, in actions arising on contract, where he decides that the plaintiff shall not recover $50, and also the legal conclusion as to who shall recover costs, and I think it his duty to do so. It has been held, where costs rest in the discretion of the court, and the action is referred, that the referee should determine the question of costs. (4 How. Pr. Rep. 300; id. 356; 10 Barb. 448.) But where the right to costs may be affected by facts not proved on the trial, he has no right to decide that question. (12 How. Pr. Rep. 300.)
In cases like the one under consideration, the facts that show which party is entitled to costs, when the plaintiff recovers less . than $50 damages, are proved or admitted on the trial; and for this reason I am of the opinion the referee very properly passed' upon the question as to which party should recover costs in this action. The motion to set aside the plaintiff’s judgment for costs, and for an order that the defendant recover costs, should be denied, with $10 costs.
Note.—Affirmed with $10 costs, at the Tompkins General Term, Nov., 1859.