Harvey v. Bardwell

6 Cow. 57

• Court: New York Supreme Court
• Decided: August 15, 1826
• Status: Published

Opinion

Curia.

The demand of the plaintiffs having been narrowed down to a money claim; and there being no need of the penalty to secure further breaches ; and the damages reported being only 14 dollars, and below what, in a judgment, would carry costs, the question is, whether the penalty or the damages were the proper measure of the judgment. When that is ascertained, we have a test for the costs. (13 John. Rep, 345.)

The case of Alendorph v. Stickle, (2 Cowen, 412,) was one of set off, within the statute, 1 R. L. 515, 16. It was this, which led to the distinction mentioned by the court, between bonds for performance of covenants, and money bonds. Where the latter are in question upon a set off, the sum really due is the debt; and the judgment goes accordingly, either for plaintiff or defendant. Except in the single case of set off, all bonds and agreements secured by a penalty, stand on the same footing ; and the plaintiff recovers costs according to the penalty. The case of set off is sui generis, and stands upon the statute providing for that alone. ( Vid. 2 John. Cas. 406. 10 John. Rep. 219. 13 id. 345. 5 Cowen, 424. 2 Cain. Rep. 107.)

The motion must be denied with costs.

Motion denied.