Ross v. Dole

13 Johns. 306

Opinion

Per Curiam.

This was a special-action on the case for erecting a nuisance. The plaintiff has recovered 45 dollars, and the question now is, whether he is entitled to recover costs, or is bound to pay costs to the defendant. No certificate has been procured from the judge who tried the cause, that the title to land came in question. Nor, indeed, is it a case in which the title to lands could come in question. Although the defendant might have a claim to the house occupied by the plaintiff, he has no right to endeavour to drive him out, by erecting a nuisance. He must try his right in a regular course of judicial proceedings. And this we know he once attempted to establish, but failed. The offer of the defendant to show a title was properly overruled by the judge. The motion, on the part of the plaintiff, for costs, must be denied. He is bound to pay costs to the defendant, but the plaintiff has a right to set off the damages recovered against the costs, notwithstanding the lien which the defendant’s attorney claims to have on these costs,

(a)

See Porter v. Lane, 8 Johns. Rep. 357,