(dissenting):
I dissent. Section 3070 of the Code of Civil Procedure makes complete provision as to all cases of appeal from J ustices’ Courts where a new trial is demanded, and is exclusive. It cannot be denied that, within the literal terms of that section, the plaintiff was entitled to costs, and the decision below was correct.
The general rule that a party must recover judgment to entitle himself to costs does not apply to appeals from justices. The whole scheme is symmetrical and its object apparent. On appeals with demand of new trials, if the appellant gains ten dollars by his appeal, he is entitled to costs, otherwise not. The respondent can escape being mulcted in costs by an offer of judgment. If the error be less than ten dollars, the aggrieved party is not without remedy. He may appeal, under the provisions of section 3044 to 3067, when he will not be entitled to a new trial as a matter of right. But, if successful, he will be entitled to costs.
The Code intends that an error of less than ten dollars shall not be corrected at the expense and trouble of a new trial, but by an appeal on the justice’s return. Nor is any injustice done the appellant by this rule. The plaintiff had a small claim, ill-founded, it is true, still he had a right to try it in an inexpensive tribunal. The defendant, by setting up a counter-claim sufficiently large, obtains a trial in the County Court; that counter-claim is as baseless as the plaintiff’s claim. It was the amount of the defendant’s counterclaim, not that of the plaintiff’s judgment, that authorized the new *595trial. It is therefore right that, failing in the counter-claim, the defendant should pay the costs.
The order appealed from should be affirmed.
Order reversed, with costs and disbursements.