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a. Where the complaint alleged that the defendant entered the plaintiff's close, and took and converted certain personal property therein, the answer admitted the plaintiff's title to part of the close mentioned in the complaint, and denied his title as to the residue, and justified the entry on the whole close. The verdict was special, as follows: The jury find for the defendant on the question of title put in issue, and a verdict for fifty cents, in favor of the plaintiff, for the conversion of the personal property. On motion at special term, an order was made that plaintiff recover full costs. From this order the defendant appealed, and the general term reversed said order. Burhans v. Tibbits, 7 Pr. R., 74. And per Curiam, If the plaintiff is entitled to full costs, it is because the statute gives them to him, and his right is in no way strengthened by the order of the judge. If the statute gives costs, he is entitled to them of course; if not, no order can extend to him the right. There is no discretion to be exercised by the court. The court may construe the statute, but can do nothing more. Prior to the code, if the plaintiff recovered judgment for any amount in an action in which the title to land or tenements, or to a right of way, or right by prescription or otherwise, to any easement in lands, or to overflow the same, or to do any other injury thereto, was put in issue by the pleadings, or came in question on the trial of the cause, he recovered the costs of the court in which the action was brought (2 R. S. 3d ed. 703). Whether title came in question was determinable by the certificate of the judge. The court provides that costs shall be allowed, of course, to the plaintiff upon a recovery in an action where a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. (Code, s. 304.) In this case there was no certificate of the court, and if the plaintiff is to be allowed costs, it must be solely on the ground that on the pleadings in the action in which he has recovered, a claim of title to real property arose. To determine this, the pleadings are to be inspected in connection with the verdict rendered. It is to be ascertained—1st, Whether title has been put in issue by the pleadings; and 22, Whether there has been a recovery by the plaintiff within the meaning of the section. The facts alleged in the complaint as constituting a cause of action, are substantially those which under the late system of pleading, were required to be stated in an action of trespass to real property, charging the injuries to it specifically. There is no count or cause of action separately stated for trespass, in taking and carrying away personal property-or in trover, for the conversion of the personal prop. erty found on the premises. The answer admits that part of the premises described in the complaint, is the close of the plaintiff. It then sets up title to the residue of the premises. The reply takes issue upon the new matter stated in the answer. There is, therefore, arising upon the pleadings a claim of title, not to the whole of the premises described in the complaint, but to a part only. To that extent title was put in issue by the pleadings."

b. “On the question of title, the defendant succeeded. The jury found that title to that part of the close to which it was pleaded, was not in the plaintiff so as to enable him to maintain the action against the defendant. There was consequently,

I think, no recovery by him within the meaning of the first subdivision of the 304th section of the code. But it is urged that because the jury in finding the main issue for the defendant, also found a verdict of fifty cents in favor of the plaintiff for the value of certain personal property of the plaintiff

, found on the premises by the defendant, and converted by him,-such a recovery has been had by the plaintiff, as that under the section of the code cited he is to be allowed costs, as of course. I am of a different opinion. Such a construction of the section would work a most palpable wrong. The action was for the entry upon and injury to real property; and it is for such cause, and in such an action, the recovery is to be had. To show title would be a complete defence. But can it be, where such defence is established because the code allows the joinder of a cause of action for the conversion of an article of personal property found on the premises—that the desendant, though succeeding so far as the claim of title is interposed, and upon that issue distinctly, is, nowithstanding, to pay full costs to the plaintiff, when the damages assessed for the conversion are under fifty dollars and but merely nominal? Under the late practice, counts for trespass on lands and trover could not be joined, and no difficuliy of this kind could have arisen. The first subdivision of section 304, under which the plaintiff claims to be allowed costs, is substantially a re-enactment of subdivision 2 of section 3 of chap. 10, title 1, part 3d of the Revised Statutes. In the complaint in the present case, the only cause of action stated is the entry upon the lands of the plaintiff, and the injuries thereto. The verdict of the jury is a singular one. They have undertaken io render a general verdict, pronouncing upon the only issue in the case in favor of the defendaut; and upon an issue not made by the pleadings, in favor of the plaintiff If this were allowable, or if it was effected by an amendment of the pleadings, or by conforming the pleading to the facts proved on the trial, still the question returns as to the true meaning of the section of the code on which the plaintiff bases his claim. What did the legislature intend by it? In my judgment, nothing more than to re-enact an existing provision, to apply to cases to which it had heretofore been applied, and none others; to confine the allowance of course of costs to a recovery in actions solely in respect to real property, and whenever the title'to such property came in question. That in such actions as could not be presented in the court of a justice of the peace, and over which he had no juris. diction, costs should be allowed, whatever the amount of the recovery might be; but that if a cause of action was or could be stated in the same complaint for the recovery of money only, in which no question of title to real property was involved, the recovery for such cause should be fifty dollars or more to entitle the plaintiff to costs. That when the section speaks of a recovery in an action where a claim of title arises, it means that such claim of title shall arise on the entire pleadings, and that the recovery shall be in hostility to such claim. No such absurdity is intended as to authorize a defendant to set up a complete defence, so far as the action relates to real property, and obtain the verdict of the jury in his favor, but because a recovery of fifty cents is had upon a question independent of any claim of title, that the plaintiff is to be regarded as succeeding upon the whole case so as to be allowed costs of courss. We are also to construe the whole section together; and such a construction placed on the first subdivision would be in conflict with its spirit, and in direct hostility to the letter aud spirit of section 305, and of the 4th subdivision of section 304." Ib.

On this subject see, further, note to section 55, page 59, ante.

a. The only proper evidence that title came in question on the trial is the certifi. cate of the judge who tried the cause, or an entry in the minutes, unless the plead. ings show it. Mayor, fc., of N. Y. v. Hillsburg, 2 Code Rep., 152; Niles v. Lindsley, 1 Duer, 610; 8 Pr. R., 133. Whether title came in question on the trial was determinable by the certificate of the judge. Burhans v. Tibbitts, 7 Pr. R., 75.

NOTE TO SUBDIVISJON 2. b. Where a plaintiff brought an action in the nature of replevin to recover the possession of a horse, the referee before whom the cause was tried found for the plaintiff six cents damages, and assessed the value of the horse at twenty-five dollars. The plaintiff proceeded to have his costs adjusted at the like sum of twenty-five dollars, supposing that he was entitled to as much costs as the value of the property and damages. The defendant moved to reduce the costs to twelve cents. The motion was granted, and per Curiam: “Under this provision (s. 304) the plaintiff can recover only six cents costs, that being the amount of his damages. The precise point was decided under a similar statute in Rogers v. Arnold, 1 Wend., 30. I am aware of the hardship of this rule, where the plaintiff cannot bring his action in a court of a justice of the peace nor recover costs in a court of record. But we have nothing to do with framing statutes." Minks v. Wolf, 8 Pr. R., 238.

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NOTE TO SUBDIVISION 4. c. There is no provision in the code saving from the operation of this section cases pending at the time of its adoption; and, therefore, in an action for an assault and battery commenced while the code of 1848 was in force, and decided after the passage of the code of 1819, where the plaintiff recovered six cents damages, it was held that he was entitled to no more costs than damages. Holmes v. St. John, 2 Code Rep., 46. The saine was decided in an action for libel. Taylor v. Gardner, 2 Code Rep., 47; Belding v. Conklin, ib., 112 ; 4 Pr. R., 196; Wheeler v. West

gale, ib., 269. And in an action for assault and battery. Stone y. Duffy, 1 Code Rep., N. S., 129; Keating v. Anthony, ib., 233.

a. The provisions of the revised statutes (2 R. S., pt. 3, ch. 10, tit. 1, s. 18), providing that when several are sued in certain actions of tort named, and one is acquitted, the one acquitted shall not recover costs if the judge certify there was rea. sonable ground for making him a party defendant, is repealed by the code ; and now, in actions for malicious prosecution against several defendauts, the allowance of costs 10 a defendant who has answered separately and is acquitted on the trial, rests wholly in the discretion of the court. No judgment for costs can be rendered in favor of such a defendant unless upon his application, and when the application is made the question whether he was properly made a defendant may be considered. Bulkley v. Smith, 1 Duer, 704.

b. Section 304 is the only provision in the code under which in an action for a trespass, costs can be recovered by the plaintiff; and the provisions of the revised statutes which provide for the allowance of costs in actions of trespass in the common pleas, where the court or jury shall certify the trespass to have been malicious, is repealed. There is no rule as to costs applicable to actions for trespass, which is different from that which applies to other actions for the recovery of money. In all, the recovery must be at least $50, or the plaintiff cannot have costs. Smith v. Keeler, 8 Pr. R., 55.

c. Where the action was on a promissory note for $200 and interest, the plaintiff admitted payments and off-sets, but claimed a balauce of $95 85. The cause was referred; and the referee reported that the principal and interest on the note amounted to $258 60, and that the payment and set-off amounted to 253 40, leaving due the plaintiff $5 20. The question was, whether the plaiotiff was entitled to costs. He contended that he was, because the total accounts of the parties proved on the trial, exceeded $400. Harris, J., however, held that the plaintiff was not entitled to costs : “The plaintiff only claimed $95 85. He admitted the residue of the note had been satisfied. The only matter in dispute was the amount to be allowed the defendant. It is in no sense true, therefore, that the sum total of the accounts of both parties proved on the trial, exceeded $400. The question to be tried was, whether the plaintiff should recover the balance alleged by him to be due on the note, or any less sum. The only account proved on the trial was the defendant's claim, amounting to $253 48. This, with the plaintiff's demand, was not sufficient to deprive a justice of the peace of jurisdiction. (See Matteson v. Bloomfield, 10 Wend., 556)." Hoodless v. Brundage, 8 Pr. R., 263.

d. Where the plaintiffs sued in the superior court for $414 51, and were allowed only $120, and the defendants set up a counter-clain of $98 38, and were allowed $78 24, and for the balance, $41 76, the plaintiffs recovered, it was held under the code of 1848, which so far as related to the question was identical with this, that the defendant was entitled to costs. Spring Valley Shot and Lead Co. v. Jackson, 2 Sand., 622.

e. In suits by city authorities in the supreme court, even to enforce the assessment laws, if the plaintiffs recover less than $50 damages, they can recover no more costs than damages. This was the decision; the case Mayor, gc,of N. Y. v. Hills. burg, 2 Code Rep., 152, is erroneously reported.

f. A distinction was made between costs and disbursements, and it was held, that although where the plaintiff obtained a verdict for less than $50 he was not entitled to costs, he might nevertheless recover his disbursements. Newton v. Sweet's Er'ors., 2 Code Rep. 61. But it was previously held in Swift v. De Witt, 1 Code Rep. 25, and subsequently in Belding v. Conklin, Wheeler v. Westgate, Stone v. Duffy, and Keating v. Anthony, supra, that where a party was not entitled to costs, he was vot entitled to disbursements.

g. The word “recover" means what shall be assessed as damages eo nomine. Van Horne v. Petrie, 2 Caines R, 213; Seaman v. Bailey, ib., 214.

h. Before the code it was said, that the amount of the judgment recovered, was the test to determine the right to costs. 12 Wend., 139; 8 Johos. R., 111; 13 ib., 345; 18 Wend. 560 ; 2 Hill, 127, n.; 1 Pr. R., 135.

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a. This section does not apply to foreclosure suits. Gallagher v. Egan, 2 Sand. 742; 3 Code Rep., 203.

b. Where in an action on a joint promissory note brought against the representatives of one of the deceased joint debtors, and the surviving joint debtor, the survipor being alleged to be insolvent, the plaintiff recovered. Held that he was entitled 10 costs, and that the case was not within the provisions of the revised statutes (2 R S., 4 ed. 272 [90]), respecting costs against executors. York v. Peck, 9 Pr. R. 201 ; and see section 317 and note.

$ 305. [260.) When allowed to defendant.

Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.

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c. “Section 305 of the code is confined to the actions mentioned in section 304, which does not apply to foreclosure suits, as is shown by the language of section 308." Per Sandford, J., in Gallagher v. Egan, 2 Sand. 742.

d. In a foreclosure suit, the court will permit the plaintiff, on receiving his debt and costs, to dismiss his suit, without paying costs to junior incumbrancers, wbo have appeared to protect their rights. 16.

e. So as to the mortgagor, personally liable for the debt, who has conveyed the mortgage premises subject to its payment. Ib.

f. Sections 305 and 306 apply as well to appeals as to original suits. Where there are two defendants, and judgment is affirmed as to one, and there is a complete reversal as to the other, the reversal, in the absence of any special circumstances, will be with costs. Montgomery Co. Bank v. Albany City Bank, 3 Selden, 465.

g. In an action for tort against two, where there is a verdict in favor of one defondant, and in favor of the plaintiff against the other defendant, the defendant prevailing is entitled of course to costs under section 305. Decker v. Gardner, 4 Selden, 29.

h. The plaintiff brought an action for trespass upon lands against five defendants who all joined in a single answer. Upon the trial, the plaintiff obtained a verdict against two of the defendants. The other three were acquitted, and had a verdict in their favor. The plaintiff entered judgment for his damages and costs against the two defendants. The three defendants who were acquitted had their costs adjusted by the clerk, and obtained an order at special tarm giving them leave to enter judg. ment for the costs of their defence. On appeal to the general term of the supreme court, this order and judgment was affirmed. The plaintiff thereupon appealed to the court of appeals, where it was held that the defendants who obtained a verdict were entitled to costs under section 305 of the code, and the judgment of the supreme court was affirmed. Daniels v. Lyon, Court of Appeals, April, 1854.

i. Where a plaintiff recovers, and becomes entitled to costs against one of several defendants sued on a joint contract, and the others succeed in their defence, the dofendants who succeed are entitled to recover costs against the plaintiff. Cuyler v. Coates, 10 Pr. R., 141; and the same rule applies in an action for a tort. Hinds v. Myers, 4 ib. 356.

j. Where the defence of infancy is set up by one of several defendants, the plaintiff may as to him discontinue the action without costs, on application to the court before trial, but if he goes to trial and compels the defendant to establish his defence of infancy, then the plaintiff must pay the costs. 16.

See note to section 306; and as to costs after an offer, see s. 385 and note.

8 306. [261.] (Amended 1849-1851.) When allowed to either party in the discretion of the court.

In other actions costs may be allowed or not, in the discretion of the court.

In all actions where there are several defendants, not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.

In the following cases the costs of an appeal shall be in the discretion of the court :

1. When a new trial shall be ordered ; 2. When a judgment shall be affirmed in part, and reversed

in part.

The words in italic were substituted in 1851 for the word “ when."

2. The "other actions" referred to in this section, refer only to equity causes of action. Per Willard, J., in Hinds v. Myers, 4 Pr. R., 356; 3 Code Rep., 48.

b. The court has no discretionary power to charge either party with the entire costs, in partition, upon the ground that he has unreasonably refused to make parti. tion by deed. The provisions of the revised statutes on the subject of partition are not repealed by s. 306 of the code; but the latter must be construed in connection with and as qualified by the former. McGowan v. Morrow, 3 Code Rep., 9.

c. But two defendants defending by the same attorney, and having judgment in their favor, are entitled to only one bill of costs. Braden v. Kakhaiser, i Code Rep., N. S., 129.

d. Where in trespass separate defences are made by several defendants, in good faith, and not for costs, each is entitled to a full bill of costs on succeeding in the suit. Castellanos v. Beauville, 2 Sand., 670; 3 Code Rep., 204; Collomb v. Caldwell, 1 Code Rep., N. S., 41.

e. Where in an action for an assault and battery against several defendants, who appeared and answered jointly and by one attorney, the plaintiff recovered against some of the defendants only, and to an amount not sufficient to carry costs, held that the defendants who had judgment in their favor were entitled to costs. Stone 5. Dufy, 1 Code Rep.. N. S., 129.

f. Two defendants who appeared by the same attorney, put in separate answers to which the plaintiff demurred, the demurrers were allowed with leave to the defendants to amend, on payment of costs; held, that the plaintiff was entitled to a separate bill of costs against each defendant. Comstock v. Halleck, 4 Sand., 671.

g. Several defendants appearing by different attorneys who are partners, are entitled, if they succeed, to only one bill of costs. Krofts v. Rockefeller, 1 Code Rep., N. S., 177; and where in an action against several defendauts alleged to be jointly liable on contract, two of the defendants appeared by one attorney, and the other defendant appeared by another attorney, who was a clerk in the office of the former attorney, and the defendant succeeded, but one bill of costs was allowed. Perry v. Livingston, 6 Pr. R., 404.

h. Where, after being commenced separately, the defences are united under the same attorney, or are in truth and effect united during the pendency of the suit, there can be but one set of costs for all. Castellanos v. Beauville, supra.

i. Where in a suit against three, for the recovery of money, two suffer judgment by default, and the third defends the suit and has a verdict in his favor, he is entitled to costs against the plaintiff. Comstock v. Bayard, 2 Sand., 705.

j. Where, in an action for libel, two defendants defend by the same attorney, and answer separately, and verdict and judgment are given in their favor, but one bill of costs, and one set of charges can be allowed on adjustment by the clerk. Tracy v. Stone, 3 Code Rep., 73.

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