Dunster v. . Kelly
New York Court of Appeals
Appeal from order of the General Term of the Superior •Court of the city of Mew York, made March 6, 1888, which affirmed an order of Special Term denying a motion to set aside a taxation of costs in favor of defendant and to require the clerk to tax costs in favor of plaintiffs.
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Appeal from order of the General Term of the Superior •Court of the city of Mew York, made March 6, 1888, which affirmed an order of Special Term denying a motion to set aside a taxation of costs in favor of defendant and to require the clerk to tax costs in favor of plaintiffs. (Reported below, 23 J. & S. 370.) The nature of the action and the material facts are stated in the opinion. . Plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favoy, in an action triable by a jury in which a claim of title to real property arises upon the pleadings. (Code Civ.…
1Opinion of the CourtGray, J.
The plaintiffs, having recovered a verdict for six cents damages, claim to be entitled to costs of this action, on the ground that a claim of title to real property arose upon the pleadings. (Code of Civ. Pro. § 3228.)
The trial judge certified that no such claim came in question on th'e trial, and we think none can be said to have been presented by the pleadings. The complaint demands damages for the acts of the defendant, in trespassing upon the plaintiffs’ premises, by inserting stove pipes into their chimneys; thereby causing an excessive amount of smoke, dust and dirt to flow into the…
2Cases cited2 opinions
- Rathbone v. . McConnellNew York Court of Appeals · 1860
- Heintz v. DellingerNew York Supreme Court · 1864
3Cited by6 opinions
- La Rue v. . SmithNew York Court of Appeals · 1897
- Hoyer v. Village of North TonawandaNew York Supreme Court · 1894
- Town of West Union v. RicheyAppellate Division of the Supreme Court of the State of New York · 1901
- Bloomingdale v. SteubingCity of New York Municipal Court · 1895
- Collins v. AdamsNew York Supreme Court · 1888
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