Rathbone v. . McConnell
New York Court of Appeals
Appeal from the Supreme Court. Action for diverting' a water-courge. The pleacfings are sufficiently stated in the following opinions. There was a trial, and a verdict for .the plaintiff for $25. The clerk, upon the adjustment of costs, did not allow them to the' plaintiff, but allowed costs to the defendants. This decision was reversed at special term, but, on appeal, this judgment was reversed at general term in the seventh district, and costs awarded to the .defendants.
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Appeal from the Supreme Court. Action for diverting' a water-courge. The pleacfings are sufficiently stated in the following opinions. There was a trial, and a verdict for .the plaintiff for $25. The clerk, upon the adjustment of costs, did not allow them to the' plaintiff, but allowed costs to the defendants. This decision was reversed at special term, but, on appeal, this judgment was reversed at general term in the seventh district, and costs awarded to the .defendants. The plaintiff appealed to this court.
1Opinion of the Court
Dentó, J.
The Code gives costs to the plaintiff on a recovery in the Supreme Court for any amount “ in an action for the recovery of real property, or when a claim of title.to real property arises on the pleadings, or is certified by the court to have come in question on the trial.” (§304.) The present was an action to recover damages, and not property; and there was no certificate, as to the questions litigated on the trial. If, therefore, the plaintiff is entitled to costs, it is because a claim of title to real property arose on the pleadings. I am of opinion that the pleadings do not show…
2Cases cited4 opinions
- Brown v. MajorsNew York Supreme Court · 1831
- Chandler v. DuaneNew York Supreme Court · 1833
- Otis v. HallNew York Supreme Court · 1808
- Tunnicliff v. LawyerNew York Supreme Court · 1824
3Cited by21 opinions
- La Rue v. . SmithNew York Court of Appeals · 1897
- Dunster v. . KellyNew York Court of Appeals · 1888
- Boyer v. SchofieldNew York Court of Appeals · 1866
- Schiffman v. HickeyOregon Supreme Court · 1921
- Mechl v. SchwieckartNew York Supreme Court · 1876
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