By the Court,
Sutherland, J.The plaintiff is not entitled to costs. His claim as established at the trial did not exceed $200. He claimed only the balance due upon the two first lots of timber, which his counsel stated to be $11,84, and the value of the last lots, which he proved to be $138,52, making together $150,36. The whole value of all the timber delivered by the plaintiff to the defendant was not claimed by him, but only the balance after deducting the payments. Those payments were made specifically on account of that transaction; they were made in money; they were properly payments, and not a set-off. Nor did the debts, demands and accounts of both parties established on the trial exceed $400. The demands of the plaintiff as claimed and established were but $150,36, and the defendant only claimed payments to the amount of $105, and a deduction for defects in the value of the timber, $27,06; making together $132,06; thus showing the demands of both plaintiff and defendant to be only $282,-42. I perceive no reason why this action should not have been prosecuted before a justice of the peace.
The motion therefore is denied.*
Ex parte Levi A. Mills vs. New-York C. P.
A plaintiff recovering less than fifty dollars in a court of record is not entitled to recover costs, though his claim, as established at the trial, exceed $200, if it be reduced by payments ; if reduced by set-offs, he is entitled to costs. Nor is he entitled to costs on the ground that the demands exceeded $400, unless the demands in dispute and established mi the trial exceed that sum; payments made are not debts, demands, or accounts, within the meaning of the statute.
This was an application for a mandamus. Levi A. Mills sued Peter Pratt in the New-York common pleas in an action of assumpsit; the defendant *558pleaded the general issue and payment, and attached to his plea a general notice of set-off The parties mutually furnished bills of particulars. The plaintiff, in his bill of particulars, charged the defendant with various items, amounting in the aggregate to $521,68, and credited him with monies received at sundry times, and -with medicine and attendance; &c. amounting to $434,68, claiming a balance to be due of $87, with the interest thereof for one and a half years. The defendant’s bill of particulars consisted of a physician’s account for medicine, attendance, advice, &c. amounting to $143, and of various items for monies paid, to the amount of $374,68. The cause was heard before referees, who reported in favor of the plaintiff for the sum of thirty-seven dollars; whereupon the plaintiff applied to the court for a rule that he be allowed to recover costs, notwithstanding that the report was for a sum less than fifty dollars. In support of his motion, the plaintiff made an affidavit that, on the hearing before the referees, the whole of the items specified in his bill of particulars were cither admitted or proved, except four quarters rent, which were charged at $50 per quarter, in respect to which fhe proof was, that the rent of the premises charged to the defendant was worth only $150 per annum; that the monies specified in the defendant’s bill were admitted to be correctly charged; that $15,50 of the defendant’s account for medicine &e., were admitted or proved; and that the residue of the account was shewn to have been paid by the production of a receipt; in reference to which the defendant attempted to prove a mistake,. . but failed to establish his allegation. The referees also gave a certificate that the demand of the plaintiff) as established at the trial, exceeded $400, which was diminished more than $300 by divers payments, and a set-off to the amount of $15,50, which payments and set off they certified were also established at the trial. In oppositon to the motion, the defendant made an affidavit, that by the decision of the referees, giving effect to the receipt produced by the plaintiff) the defendant was precluded from proving more of his account than what amounted to $15,50 ; that on the hearing, the plaintiff alleged that all accounts between him and the defendant were settled, except a balance of $94,83, which he claimed to be due to him ; and that he, the defendant, was informed by the referees, that the balance of $87 claimed by the plaintiff) was reduced to $37, by deducting $50 from the rent charged in *559the plaintiff’s bill of particulars. One of the referees also made an affidavit, that the only demands litigated at the trial, were a demand of the plaintiff of #87, and a set off of #15 claimed by the defendant; all other demands between the parties having been cancelled by receipts. Judge Irving denied the motion for costs, and the plaintiff now asks for a mandamus, directing the O. P. of New-Tfork to allow the plaintiff costs, notwithstanding that the report of the referees is for less than #50.
By the Court, Nelson, J. It is declared by statute, that where the plaintiff shall recover any sum in a court of record he shall recover costs, if it appear that his claim as established at the trial exceeded #200, and was reduced by set offs ; or that the debts, demands and accounts of both parties establishedontke trial exceeded #400. See 2 M. S. 614, § 9. This case does not come within either clause of this section : it is not within the first clause, because, admitting the plaintifl’s claim as established at the trial to have exceeded #200, it was reduced by payments acknowledged to have been made by the defendant and not by set offs ; but I think it may well be questioned whether the plaintiff's claim, amounted to #200: all he demanded was abalance of #87, with the interest thereof. Nor is the case within the second clause of the section above referred to: the debts, demands and accounts of both parties, in dispute between them, did not exceed #400. The accounts as exhibited exceeded that sum, but payments were shown on each side, and as far forth as payments were made, the account or demand of each of the parties was extinguished. The intent of the legislature in this case may bo discovered by reference to an analogous provision in the act regulating justices’ courts, by which a justice is prohibited from taking cognizance of matters of account, where the sum. total of ¡the accounts of both partios proved to the satisfaction of the justice exceed #400 ; 2 R. 8. 226, § 4, sub. 4; and by a subsequent provision, “if, upon the trial of a cause, it shall appear that the amount of the plaintiff’s claim, together with the demands set off by the defendant, exceed #400, judgment of discontinuance shall be rendered against the plaintiff, with costs.” 2 It. S. 235, § 54. These provisions shew that the jurisdiction of the justice does not depend upon the amount of the accounts¡as exhibited, but upon their amount as proved; that is, if the amount in contestation exceeds ,#400, the justice loses his jurisdiction, otherwise not. So in courts of record, if the debts, demands and accounts in dispute or in contestation, and established on the trial, exceed #400, and the plaintiff recovers any sum, he is entitled to costs. Such was not the case here ; the payments mutually made cannot be considered as debts, demands or accounts, within the meaning of this statute, and deducting them from the accounts, the whole amount in controversy was less than #100. The motion must be denied, with costs.
This case was decided 6th April, 1833.