Tbe recovery being of a sum less than $50, tbe plaintiff is not, and tbe defendant is entitled to costs, unless tbe action belongs to a class of which courts of justices of tbe perico have not jurisdiction. *258(Code, § 304-, subd. 4; § 305, § 304, subd. 3.) They have not jurisdiction of actions involving a matter of account when the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed $400. (Code, § 54, subd. 4.) ■
As this action was brought, not in a court of a. justice of the peace, but in the County Court, the mode provided by the statute of determining whether a justice’s court had jurisdiction or not could not he resorted to. Still, it is incumbent on the plaintiff to show that a justice’s court liad not jurisdiction. That is not done by proof that the sum total of the accounts claimed by both parties exceeded $400 ; for the statute has made the jurisdiction dependent upon the sum total of such accounts' proved, &c. If, therefore, wo take the only proof of the sum total of such accounts which the case affords — namely, the verdict of the jury upon the trial in the County Court — it appears that the sum total of such accounts amounted to only the sum of $269.28. It follows that the action was one of which justices’ courts have jurisdiction. That recourse may he had to the proof of the amount of the accounts given in the County Court to determine tbe question before us, seems to have been decided in several cases. (Glackin v. Zeller, 52 Barb., 146; Lultyor v. Walters, 64 Id., 419; Fuller v. Conde, 47 N. Y., 89.)
The order appealed from must he reversed, with $10 costs and disbursements, and the clerk of Westchester county be directed to tax the defendant’s costs and to enter judgment in his favor therefor.
. Barnard, P. J., and Pratt, J., concurred.Order of County Court allowing costs to plaintiff reversed, with costs and disbursements, and costs ordered for defendant.