Duigan v. Hogan.

money to pay the rent, and prevent the issuing of the warrant, travelling by the cars, he arrived just as the warrant was signed and delivered, and a moment too late to make the payment. There was deemed sufficient reason for interference on the ground of undue advantage, fraud, or surprise. Here there is no pretence of fraud or surprise. The tenant claimed that he ought not to pay rent because the landlord had broken his covenant to repair, and the tenant was entitled to damages.

Now, this claim was a defence to the summary proceedings, or it was not. If it was, and the magistrate erred in rejecting it, his error may be corrected by a proper review of the proceedings. If it was not a defence, then we can only say that the Legislature have practically said that the landlord shall be permitted to recover possession if the rent is not paid, and a warrant of dispossession be obtained, notwithstanding such claim for damages, and without being subjected to the delay of a litigation respecting such claim.

Again, if we were at liberty to consider this question under the general rules of equity, it would be obvious to remark, that it is a novel view of the power and duty of a Court of Equity, to suggest that, when the Legislature have said that certain facts shall defeat those summary proceedings, and if they are not established, the landlord shall have possession; yet, a Court of Equity may say, that certain other facts shall avail as a defence and defeat the Statute.

For example, though it be conceded that the Statute does not permit the tenant in this proceeding to set off against the rent a claim due to himself,-a clear legal defence to an action for the rent, but not an extinguishment or payment of the rent—a Court of Equity may say that because the Legislature have not made that a defence, we will; or what is practically sought of us, although the Legislature have, in substance, by not allowing, prohibited the tenant from setting up any such claim as a ground for retaining the possession, we, a Court of Equity, will permit it, and the very prohibition in the Statute shall be the reason for our doing so. As already remarked, if such set off be a defence, and the magistrate errs in rejecting it, the remedy of the tenant is by a review of his proceedings.

Still further, if the subject were open to inquiry upon princi

Duigan v. Hogan.

ple, we should say that the plaintiff has ample remedy without the aid of this Court. There is no pretence that the landlord is insolvent. All that the tenant had to do, for the preservation of his rights, was to pay his rent, and if he had any just claim against his landlord, sue him and recover all that is due. There is nothing new in this. Prior to our recent amalgamation of actions and defences, it was a most common occurrence for a defendant to be sued upon a cause of action to which he had no legal defence, although he had also a cause of action against the plaintiff which might be of far greater magnitude. Cross actions were necessary. And a familiar example is suggested, by a case similar to that before us, when it is recollected that a breach of a covenant to keep in repair was no defence to an action of debt for rent. And yet who ever heard of a Court of Equity interfering when there was no defence of insolvency, on the ground, that if a plaintiff was not enjoined he might obtain judgment and execution, and collect his claim before the defendant, in his cross action, could obtain judgment.

In every view of this subject, we think the plaintiff here has mistaken his remedy; he should have paid his rent, and if he have a just claim against the plaintiff, sue, and collect it.

We have deemed it proper thus to express our views respecting the power of the Court in such cases, and the want of any justifiable ground for our interference on the facts stated in the complaint, notwithstanding the present case might, we think, be disposed of on another ground, viz. that the case made by the complaint is fully met by the answer. The whole equity of the bill is denied; all that results from the addition of affidavits to the bill and answer respectively, is that the witnesses differ in their statements as widely as the parties do themselves; and all idea of irreparable injury is already disposed of. If the plaintiff has chosen to lose the opportunity to pay his rent, that is his own neglect. That, and the probable consequence-loss of his term, result, not from any necessity of the case, not from his being unable to prevent irreparable loss, but from his allowing the time and opportunity to pay his rent and save his term, to pass by.

I am authorized to say, that the order appealed from was made in part with a view to save the possession to the tenant

Peet v. Warth.

until this case could be considered on the appeal, which it was understood would be taken to the General Term; and that the Justice by whom the order was made, concurs with all the members of the Court by whom the argument was heard, in holding that the order must be reversed.

Order reversed, with costs on appeal, $10, and on the motion below, $10, to abide the event of the suit.

FREDERICK L. PEET v. JOHN WARTH.

When a plaintiff, in an action for the recovery of money, for goods sold and services rendered, recovers a verdict for a less sum than $50, he must pay the defendant's costs of the action, as a matter of course: Such a plaintiff is not "the prevailing party," within the meaning of those words, as used in § 311 of the Code. The right to recover "the necessary disbursements," is incident to and inseparable from the right to recover the costs of the action: The party who, by law, is entitled to his costs of the action is, in respect to the matter of the costs, the prevailing party.

(Before BOSWORTH, HOFFMAN, SLOSSON, WOODRUFF, and PIERREPONT, J.J.) Heard, May 15; decided, May 29, 1858.

THE plaintiff brought this action to recover money, for goods sold and for services rendered, claiming over $50.

The defendant, by his answer, denied that the goods and services were of the value alleged in the complaint. The verdict was for $30, in favor of the plaintiff.

The defendant claims costs. The plaintiff resists the claim, and demands that the clerk insert in the judgment the amount of plaintiff's disbursements.

The Judge below allowed costs to the defendant, and rejected the plaintiff's claim for disbursements.

The plaintiff appeals from the order entered on that decision.

Miller, Peet, and Nichols, for plaintiff.

S, W. Judson, for defendant.

Peet v. Warth.

BY THE COURT. PIERREPONT, J.-The Legislature, evidently, intended to discourage the bringing of actions, for small claims, in the higher Courts.

By section 304 of the Code, the plaintiff in an action like this is entitled to costs if he recover $50 or more. By section 305, the defendant in such action is entitled to costs, unless the plaintiff has a right to them. The plaintiff not being entitled to costs, it follows that the defendant is entitled to them. It is also clear that the plaintiff is not entitled to recover his disbursements from the defendant. The right to recover disbursements is incident to the right to recover the costs of the action. They are entered in the bill of costs, and adjusted as a constituent part of it: The plaintiff, having no right to costs, has none to disbursements.

The plaintiff insists that, under the Code, disbursements are to be entered in the judgment in favor of, and that they are recoverable by, the "prevailing party;" and that the party who recovers even a less sum than $50, has prevailed; and that as the defendant has not recovered a verdict for any sum, he has not prevailed.

In those sections of the Code which relate to costs, "the prevailing party" therein mentioned is he who has prevailed in establishing his right to costs under the law. A plaintiff who sues for and recovers $20 only, in a Court of Record, is not the prevailing party within the statute relating to costs, and the defendant in such action is the prevailing party.

We have not omitted a careful consideration of the case of Kalt v. Lignot (3 Abbott, 33), and the other cases cited by the plaintiff's counsel.

The order appealed from must be affirmed, with $10 costs.

Hewlett v. Brown.

HEWLETT v. BROWN.

Where a party to an action is made a witness by his adversary, he is as much entitled to witness's fees, as a condition to creating it his duty to attend and be sworn, as any third person.

A six days' notice to appear and be examined, and notifying him that, if he fail to do so, he will be liable as for contempt, and to have his answer stricken out, are not sufficient to authorize an order, (on his default to appear,) striking out his answer, or to punish him for contempt.

(At Chambers, July, 1858. Before BOSWORTH, J.)

THE defendant moves to vacate an order directing his answer to be stricken out; which order was made under the following circumstances:

On the 9th of June, the plaintiff caused a notice to be served on the defendant, requiring him to appear on the 15th, at 10 o'clock, A. M., before J. S. BosWORTH, a justice of this Court, &c.; and "be examined as a witness, pursuant to the provisions of the Code of Procedure for such purpose."

The notice further stated, "and if you refuse or neglect to attend, you will be liable to be punished as for a contempt of Court, and your answer stricken out; and we shall apply for such relief against you, and for such further and other relief as is provided for by said Code."

The defendant not attending on the 15th, another judge of the Court, on an affidavit of that fact, and of service of the notice, made an order, that "the answer of the defendant herein be stricken out." The defendant now moves to vacate that order. This motion was founded, on the papers before named, and on an affidavit that he was neither summoned nor subpoenaed to attend, and that his fees for attending as a witness were not tendered, and that he told the person serving the notice he should not attend, unless his fees, as a witness, were paid.

BOSWORTH, J.-No witness is obliged to attend Court, or before an officer out of Court, to be examined, unless paid the usual fees allowed by law, (2 R. S. 400, §§ 54, 56.) Sections