Dempsey v. Hall

3 Jones & S. 201

• Court: The Superior Court of New York City
• Decided: January 4, 1873
• Status: Published

Opinion

By the Court.—Barbour, C. J.

The complaint in this action alleged, that about the 30th of April and the 1st of May, 1869, the plaintiff was the owner of certain premises in this city, and the defendant held and enjoyed the same as her tenant, and that the defendant there wrongfully injured the premises, by cutting down and destroying the ceilings, partitions, etc., to the injury of her reversionary interest, and to her damage, to the amount of $2,000. The answer denied each and every allegation of the complaint, thus putting in issue not only the injuries complained of, but the defendant’s tenantcy, and the title of the plaintiff as owner. On the trial, therefore, the plaintiff was compelled to, and did, prove her title and her lease to the defendant, and also proved that the defendant injured the building, as charged in the complaint, to the amount of thirty dollars, for which the plaintiff had a verdict. The defendant’s costs were taxed by the clerk at $195.03, and, thereupon, a judgment was docketed against the plaintiff for $165.03, being the amount of the costs less the thirty dollar verdict. The plaintiff’s counsel then moved before the Special Term for, and obtained, an order vacating the judgment, on the ground, as expressed "by the learned judge in the order itself, “that the same was for the costs of this action, while the defendant was not and is not entitled to costs, "but, on the contrary thereof, the plaintiff is entitled to costs under the 304th section of the Code of Procedure, a claim of title to real property arising on the pleadings.” The matter now comes "before us on an appeal from that order.

As the plaintiff’s claim to recover for the injury done to the premises was founded, solely, upon her allegation of ownership, the issue raised "by the denial in the answer, was a material one. The case, therefore, is within the spirit as well as the letter of the first subdivision of the 304th section of the Code, which declares that the plaintiff shall have costs upon a recovery, when a claim of title to real property arises on the pleadings.

The order must he affirmed, with costs.