Alexander v. Hard

42 How. Pr. 384

• Court: New York Supreme Court
• Decided: October 25, 1871
• Status: Published

Opinion

An action brought in the supreme court, in which there were two causes of action, and two issues according to the complaint and answer. The first involved the title to real property, and upon that issue, the defendants succeeded. The second, involved matters that a justice of the peace had jurisdiction to try, and upon that issue, the jury rendered a .verdict in favor of the plaintiff, for five dollars damages— Held, that the defendants were entitled to costs. Also held, that the plaintiff was not entitled to costs, for the reason that he was beaten upon the issue of title to real property ; and that the fact, that he demanded judgment in his complaint for five hundred, dollars damages, besides costs, did not entitle him to costs in the action upon a verdict in his favor for only $5 damages.

In the report of the above case on page 132 of this volume, the word “ not” in a sentence, should be struck out, so the sentence will be as follows: “ That the plaintiff could recover for any loss of service of his wife or infant children occasioned by reason of defendants assaulting and injuring them.”

Note—The plaintiff knew when be brought his action that he did not own the real property alleged to have been trespassed upon and injured, &c. Of course he knew be must get beat on that issue. There being nothing left in the complaint but what a justice of the peace might take jurisdiction—he was not justified in claiming $500 damages in his complaint, upon an issue which it was palpable he could not sustain, and certainly he was not justified in asking it on the other issues. This is the view we first took of it.—Rep.