Salisbury v. Parker

7 Cow. 150

• Court: New York Supreme Court
• Decided: May 15, 1827
• Status: Published

Opinion

Curia.

Ho doubt the legislature, in the proviso to the 4th section of the statute of costs, had their eye particularly on that class of actions which would not carry costs in th common pleas, unless the recovery exceeded 25 dollars. So far it adopts the principle, which is certainly a very reasonable one, that a plaintiff suing in the 0. P. and entitled to costs there, shall not be deprived of them because the defendant removes the cause into this court; that for the purpose of costs, the cause shall be considered as continued py the habeas corpus. This court avow that principle in Bennett v. Rathbun; and as we understand that case, it was decided upon this principle. It is certainly very just that the plaintiff should be deprived of no substantial rights by the act of the defendant. This principle was also acted upon in Bell v. Hall. True, it seems to be questioned by Waterman v. Benschotten; but we think that case may be sustained without touching it.

We decide that the plaintiff is entitled to full costs, upon the ground that he would have recovered costs in the common pleas.

Motion granted.