Brady v. Durbrow

Ingraham, First J., (dissenting.)

I am not satisfied that the claims of the plaintiff and defendant in this case, as proved before the referee, do not come within the meaning of the term mutual accounts. The plaintiff- claimed two sums as due him, amounting to over $500, and the defendant claimed credit for moneys paid by him, in part for work done on the plaintiff’s account, and in part for articles purchased on his account. The most of them were unliquidated charges, which do not come within the term, “ payments.”

But admitting that a different rule is to be applied to this case, I can see no reason for allowing the defendant an extra allowance. The cases contemplated by the Code, in which the allowance is to be made, are cases in which one or the other party recovers a full judgment. Who has the judgment here ? The plaintiff is entitled to make it up, and, in so doing, he may be compelled to provide for the defendant’s costs; but I do not think the defendant has the judgment here, so as to warrant this allowance. It is apparent, also, from the character of the plaintiff’s claims, that the action may have been brought in this court in perfect good faith, under the belief that the Justice’s Court had no jurisdiction. If so, the plaintiff is sufficiently punished by having . to pay the defendant’s costs, without the allowance.

Where the question as to the defendant’s right to costs at all is not free from doubt, and the plaintiff has a verdict, I think an extra allowance should not be made. So much of the order as allows extra costs to the defendant should be reversed.