The plaintiff is entitled to costs unless a justice of the peace would have had jurisdiction. (Code, Sec. 304, Subd. 3.) By section 54, a justice of the peace has no cognizance of a matter of account where the sum total •of the account of both parties, proved to the satisfaction of 4he justice, shall exceed $400.
*148If in fact, the sum total of the accounts of the parties, does exceed $400, it is not necessary that the action' be first brought in a justice’s court, and that the amount, of. the accounts should be there shown by proof to exceed $400» (3 Abb. 365.)
The defendants’ counsel insists that the account of the plaintiff for work had been reduced by payments &Q that the sum owing to him was $40 87, and that that so appears from the plaintiff’s complaint.. If this construction.of the ■complaint is correct, then the sum total of the accounts did not exceed $400, it would be but $40 87..
Payments extinguish the claim or demand of the .creditor jpro tanto. ■ .
But should the complaint be so construed ? . Stated shortly* the allegations of the complaint are that the plaintiff rendered labor and. services to the defendants, at agreed prices to the sum of $450. It is then admitted (say alleged) by the plaintiffs, that the defendants have a counter-claim or set-off",■ to the plaintiff’s account of. $409 13, leaving an amount -due the plaintiff of $40 87, which has not been paid.
•I do not think, we should be justified in saying that tifiecomplaint; Shows that any part of the plaintiff’s account qr demand had been paid,- or that there had been any settlement between the parties, or that any balance had ever been struck. Indeed, the plaintiff proceeds to say. that he had demanded an accounting and settlement which had been refused by the defendants, as appears from the complaint, the plaintiff’s account for work and services wa.s $450, and the counter-claim or set-off of the defendants was $409 13.
These being the facts, a justice of the peace would have no jurisdiction.-■ . . .
• • If th.e complaint had shown that the parties had settled the accounts and struck a balance, then the action could -have been maintained in a justice’s court, or if the complaint had shown that the defendants had from time to time *149made payments, thus extinguishing the account pro tanto, then the action for the amount unpaid could have been tried in justice’s court. I do not think, that on the motion for re-adjustment of costs, that I can consider the affidavit! produced showing the course of dealing between the parties The counsel cites Crim agt. Cronkhite, (15 How., 250), as a •case where affidavits were made, but it appears in that •case that the facts stated in the affidavits were proved on the trial. In this case there was no testimony other than the pleadings.
In the case just cited, the referee found the amount of the defendant’s account against the plaintiff) by way of “payment and counter-claim.” It appears that a certain sum was paid in money towards the plaintiff's labor, and deducting this sum, the accounts were reduced below $400.
The counsel for defendants cites Hoodless agt. Brundage, (8 How., 263). The action was upon a note upon which payments had been made.
The plaintiff in his complaint, admitted that a certain •other sum or account should be allowed, and he claimed judgment for $95 85. The defendant denied the complaint, •and claimed a much larger account in his favor than that •admitted in the complaint. The recovery was $5 20. The •defendant proved his account amounting with interest to $253 48, and this was the only matter in dispute, and with the claim of the plaintiff, the judge says, was not sufficient to deprive the justice of jurisdiction. Justice Harris cites (10 Wend., 556, and note), a case where the accounts exhibited on the trial exceeded $400, but the evidence •shows specific payments which were not an account valid .as a set-off. The case in the note, (10 Wend., 557,) was a case of payment and not set-off, and the court held that, "though the claim established on the trial exceeded $200, ■(this was under the Revised Statutes,) and that it being reduced by payment below $50, the plaintiff could not have •costs, but if it had been reduced by set-off, then he would be *150entitled to costs. I have looked into Glaskin agt. Green, (52 Barb.,) cited by counsel, and some other cases. There is no conflict in these cases. In this case, the counsel puts-the construction upon the complaint as admitting payments-on his account, reducing it below $50.
The admission is that the defendants have a counter-claim-of set-off, and the plaintiff asked judgment for the balance. . Suppose, the defendants had denied the complaint and had, not plead a counter-claim or set-off, what would ha.ve been , the condition of the plaintiff? If the demands of the-defendants were counter-claim or set-off, the plaintiff had no power"to apply them in' the reduction of his account. If the defendants refused to plead and prove their counterclaim or set-off, they could have sued and recovered the, whole amount, and if the plaintiff had contented himself . with a judgment for the balance, he might be subjected to great -loss.
He, however, stated the facts showing that a justice-had no jurisdiction, and the defendants admitted the facts, and the judgment .has been justly rendered for-the balance..,
■ If the defendants intended to make the question now raised, they should have answered that they had paid the-sums on account of the plaintiff’s .work, and not admitted that they had an account by way of counter-claim or set-off.
I think, the costs have been properly adjusted against the defendants, and the motion must be denied.