Warsaw v. Voit

Plaintiff sued upon an assigned contract. A counterclaim was interposed for a sum greater than the amount of plaintiff’s claim. After trial the plaintiff’s complaint and defendant’s counterclaim were both dismissed on the merits. Costs were thereafter taxed in favor of plaintiff on the theory that where both *808the complaint and the counterclaim are dismissed and the counterclaim exceeds the amount of plaintiff’s claim, plaintiff is the prevailing party and is entitled to tax costs upon the amount of the counterclaim. (Unger v. Herscovitz, 133 Misc. 753; Arrow Piece D. & F. Co., Inc., v.…