Burhans v. Tibbits
New York Supreme Court
Present, Parker, Wright and Harris, Justices. This was an appeal from an order of Mr. Justice Watson, made at special term, awarding costs to plaintiff under § 304 of the Code.
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Present, Parker, Wright and Harris, Justices. This was an appeal from an order of Mr. Justice Watson, made at special term, awarding costs to plaintiff under § 304 of the Code. The complaint alleged that the defendant entered the close of the plaintiff (describing it) and by himself and servants, &c., removed the soil &c., trod down and destroyed the grass &c., tore down, removed and converted the fences &c., dug up the orchard, garden, trees &c., dug up, disturbed and removed the soil of a public highway, and took and removed and converted to his own use the fences on the plaintiff’s land,…
1Opinion of the Court
By the Court, Wright, Justice.
This action is to be regarded as having been originally commenced in this court. Though a suit was previously instituted before a justice of the peace, and discontinued by the defendant interposing an answer that title would come in question. Such proceedings were not subsequently taken by the plaintiff as to continue the cause in this court. In determining, therefore, the rights of the parties on the appeal, we are to regard the action as one originally commenced in the Supreme Court.
If the plaintiff is entitled to full costs, it is because the statute gives…
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