Kalt v. Lignot

3 Abb. Pr. 33

• Court: New York Supreme Court
• Decided: April 15, 1856
• Status: Published

Opinion

Roosevelt, J.

This is a suit for professional services of a physician, the plaintiff claiming $500, as the proper measure of compensation. The defendant first denies the ■ services, then says they were not worth over $25 ; then alleges unskilfulness and damage consequent upon it to the amount of $5000, and lastly alleges that the plaintiff owes him in addition $171, for champagne and claret.

In other words he meets the plaintiff’s claim, he it more or less, by a counter-claim for which in his turn he demands judgment against the plaintiff.

The referee to whom the matter was submitted rejected a large portion of the demands of each party, and found a small balance of $32 in favor of the plaintiff, and the question now is, what disposition is to be made of the costs of suit.

By the Code costs may be allowed “ to the prevailing party, upon the judgment.”

In this case both parties have failed, and both have prevailed. But the plaintiff, it is said, has recovered less than $50, and must on that ground, in this court, pay costs.

This is a mistake. Both parties, when a counter-claim is interposed, are plaintiffs, and both are defendants ; and both in this case have “ prevailed” and have “ recovered” more than $50. It is only by setting off one recovery against the other that the balance is reduced to $32.

Both being equally in the wrong and each equally liable to the other for costs, it seems to me to be a proper case for offsetting the costs of each against the other, and confining the judgment to the $32.

The language of the Code on the subject of costs was adapted to the state of things existing in 1848. The right of counter-claim, as now existing, was the result of the amendment of 1852.

The original Code therefore may be said to have contemplated but one “ prevailing party”—the plaintiff or the de'fendant—whereas the new provision obviously implied as a consequence that both might prevail, the one i.n his claim, the other in his counter-claim. Hence the law of costs, it was .assumed, without special enactment, would be so applied as to meet the alteration in the law of claims. And it is the well-known duty of courts of justice so to construe legislative •enactments as to make them harmonize so far as practicable with each other and with established principles of right.