Jermain v. Booth

1 Denio 639

Opinion

By the Court, Beardsley, J.

This was an action “ relating to real estate enumerated in the fifth chapter of” the “ act concerning suits and ministers of justice, and proceedings in civil cases.” (2 R. S. 613, §3; id. p. 338, 302.) It is a penal action given by, and founded on, the sixth title of the chapter referred to. (Id. 338.) It is given to the owner of the real estate on which the trespass is committed, and to him alone, and is therefore not unaptly designated as an action relating to real estate. In all actions of that description enumerated in said fifth chapter, costs are given without regard to the amount of the recovery. (§ 3 above.) In cases of this description the right to costs depends on the nature of the action, not on the point in issue by the pleadings, or the amount of the recovery.

In the present case the damages were trebled by the assent ■ and agreement of the respective parties. The stipulation to treble the damages was well enough, but the law would have done the same thing without a stipulation. (King v. Havens, 25 Wend. 420.) As the plaintiff was entitled to costs, the motion must be denied with costs.

Motion denied.