Crim agt. Cronkhite. as against the copartners, but also as against the creditors of the firm, unless the non-assenting partners had, before their actions were commenced changed their mind and assented to it. That which is void for want of power cannot constitute an effectual obstacle to any one who is entitled to be paid out of the property of the constituent. The judgment will be drafted accordingly, and submitted to defendants' attorneys. SUPREME COURT. PHILIP CRIM agt. LEWIS CRONKHITE. By section 304 of the Code, costs are allowed of course, to the plaintiff, upon a recovery in the actions of which according to section 54, a court of a justice or the peace has no jurisdiction. By section 54, subdivision 4, it is declared that no justice of the peace shall have cognizance "of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars." Under the Revised Statutes, which contained a similar provision, it has been fully settled by authority, that payments made towards satisfying a debt were not demands, and constituted no part of an account, but extinguished the debt pro tanto. The plaintiff's claim for labor in this case, for which he demanded judgment, was $336, and interest. The defendant's allegations of payment, and counter claims, for which he demanded judgment, were $200. On the trial before the referee, he found the plaintiff's claim to be $260.92, and the defendant's payment and counter claim to be $232.28. The payments of the defendant, towards the plaintiff's labor, included in the latter amount, were found to be $95.85. Therefore, the actual demands between the parties were only $397.35. The referee found that the plaintiff was entitled to judgment for the sum of $28.64. The court thereupon decided that the defendant was entitled to judgment for costs. Otsego Special Term, December, 1857. MOTIONS to settle the question as to which party should re Crim agt. Cronkhite. cover costs upon the report of the referee in the action. The facts necessary to a correct understanding of the case, sufficiently appear in the opinion of the court R. M. TOWNSEND, for plaintiff. BALCOM, Justice. The referee has found that the plaintiff labored for the defendant one year, lacking twenty-one days, and that such labor was worth $260.92. He has also found, that the amount of the defendant's account against the plaintiff, by way of "payment and counter claim," was $232.28; and that as a conclusion of law, the plaintiff is entitled to judgment against the defendant, for the sum of $28.64. The report is silent on the question of costs. The affidavits read on these motions, show that the defendant's account against the plaintiff, was made while the latter was performing the labor above mentioned; that the whole of it was charged to the plaintiff, item after item, with the dates thereof, in the defendant's account book; that items of the account, amounting to $95.85, were for money the defendant paid to the plaintiff, from time to time, towards his labor, for which he took no receipt; also that the plaintiff looked over the account, or the greater portion of it, with the defendant, and admitted its correctness. The affidavits referred to, also show that the foregoing facts were proved on the trial. The plaintiff's claim for labor, and the defendant's allegations of payment, and counter claim, were put in issue by the pleadings. The demand of judgment in the complaint, was for $336, and interest thereon, besides costs. The defendant demanded judgment in his answer, against the plaintiff, for $200, besides costs. The total amount of the demands of both parties, including payments made by the defendant to the plaintiff, towards the labor of the latter, as established by the referee's report, is $493.20; but by deducting therefrom the sum of the defendant's payments towards the plaintiff's labor, viz: $95.85, it Crim agt. Cronkhite. will be seen that only $397.35 of demands, were in issue at the trial. The legislature by section 54 of the Code, has declared that no justice of the peace shall have cognizance "of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars." (Subdivision 4.) By section 304 of the same act, costs are allowed "of course to the plaintiff," upon a recovery, "in the actions of which, according to section 54, a court of a justice of the peace has no jurisdiction." (Code, § 304, sub. 3.) The jurisdiction of justices of the peace, over matters of account, was limtted in the same manner by the Revised Statutes, (2 R. S. 226, § 4, sub. 4,) and it was provided therein, that, "where the plaintiff shall recover any sum in any court of record, he shall recover costs, if it appear that his claim as established at the trial, exceeded two hundred dollars, and the same was reduced by set-offs; or that the debts, demands and accounts, of both parties, established on the trial, exceeded four hundred dollars." (2 R. S. 614, § 9.) It was settled in cases arising under these provisions, prior to the enactment of the Code, that payments made towards satisfying a debt, were not demands, and constituted no part of an account; but extinguished the debt pro tanto. (Matteson agt. Bloomfield, 10 Wend. 556; Mills agt. New York, C. P. id. 557 ; Lamoure agt. Caryl, 4 Denio, 370. See 2 Cowen, 418.) Within this rule the several payments made by the defendant to the plaintiff, towards the labor of the latter, amounting to $95.85, although charged to the plaintiff, with items for goods sold to him on the defendant's books, cannot be considered in determining whether the sum total of the accounts of both parties exceeded four hundred dollars; but the amount of such payments must be regarded as having extinguished a like portion of the plaintiff's claim for labor. This rule is too well settled to be departed from; and it shows that the sum total of the accounts of both parties was less than $400; and that a justice of the peace had cognizance of the action. The plaintiff, therefore, having recovered less than $50 damages, is not entitled Boston Locomotive Works agt. Wright and others. to costs; but by section 305 of the Code, the defendant is entitled to a judgment for his costs in the action. The judgment in favor of the plaintiff for $28.64 damages, and the one in favor of the defendant for costs, must be in the same judgment roll. (See 3 Wend. 308; 12 id. 236; 4 Hill, 588; Gra. Pr. 2d ed. 339; Yates Pleadings, 805 and 806.) SUPREME COURT. THE BOSTON LOCOMOTIVE WORKS agt. HIRAM WRIGHT, WILLIAM H. RITTER and others. In an action or defence founded upon a written instrument for the payment of money only, where such instrument is in the possession of the agent or attorney of the party, the agent or attorney who verifies the pleading (under § 157 of the Code,) must state that he has possession of the instrument described in the pleading, that it is inconvenient for any, or some reason, (to be stated,) to procure the verification of the party; and also, what knowledge he has, if any, or grounds to believe that the written instrument is genuine, as that he knows the signature of the party, or he has admitted it, or any other appropriate fact on the subject. A very slight reason will obviously suffice. But in the large class of actions and defences not founded upon written instruments, for the payment of money, provision is made aside from the verification of the pleadings by the party, in that portion of § 157, which reads, "or if all the material allegations of the pleading be within the personal knowledge of the agent or attorney." Under this clause, general or special agents of any party, having actual personal knowledge of the matter stated or alleged in the pleading, may in all cases verify the same, to the same effect as the party. But in making such verification, the agent or attorney must show, or state his character as agent, the nature of his agency, so as to show that his knowledge grew out of, or pertained to his business or trust, and must state his knowledge, or the grounds of his belief in respect to the allegations of the pleading, and why it is not made by the party. Because one man is agent for some purposes for another, he is not thereby quali fied to verify all complaints or answers for such principal. However convenient it might be in practice under the Code, an agency to verify pleadings will hardly answer. The verification of the answer by the agent in this case was held defective on two Boston Locomotive Works agt. Wright and others. grounds: 1st. It did not show in what way or to what extent he was agent, or for what purpose. 2d. That the agent did not profess to have any knowledge, or did not state any, in respect to the "material allegations of the pleading." A party in this class of actions, may verify a pleading upon information and belief, but the verification at all by an agent, depends upon the fact that "all the material allegations of the pleading are within his personal knowledge." And this is so, although the party and his attorney or agent reside in different counties. Monroe Special Term, September, 1857. MOTION to set aside judgment, in an action upon a promissory note, against the makers and indorsers. The makers put in an answer upon information and belief, denying that the plaintiffs were duly incorporated, and alleging that the plaintiffs were not the owners of the note described in the complaint, but the same belonged to one Van Keuren. The answer was verified in due form by the defendants Wright and W. H. Ritter, and by the said Ritter, for the co-defendant Michael Ritter, as follows: "And the said Ritter further says, that he is agent for Michael Ritter, and has the charge of said Michael Ritter's business in said county; that said Michael Ritter does not reside in, and is not now within said county of Monroe; and that this deponent is more familiar with the matter upon which this action is founded, than the said Michael Ritter; deponent's knowledge, information and belief therein, being founded in communications with the plaintiff's attorney and others; and that it is, for the same reason above mentioned, that this complaint is not verified by the said Michael Ritter, in person.” The plaintiff had given notice that the verification was insufficient and had disregarded it, and entered judgment against Michael Ritter. This judgment the defendant now moves to set aside. F. A. WHITTLESEY, for defendant. E. DARWIN SMITH, Justice. Section 157 of the Code is not |