Volk v.Youngs

1 Cow. 425

• Court: New York Supreme Court
• Decided: October 15, 1823
• Status: Published

Opinion

Curia.

The plaintiff declared generally before the Justice, and wras met by a plea of title to the Mill-right close. Upon these pleadings he goes into the Common Pleas, from whence the defendant brings him here, where he declares in two counts, and goes for trespasses in the Mill-right close, and other trespasses in the Five-acre close. For the purpose of double costs, then, the action was confined, by the plea of title, to the Mill-right close. The plea related to no other, and the plaintiff was not driven to a higher tribunal as to any other trespass. Here the plaintiff, upon the trial, goes specifically for trespasses in these two closes, and A v 1 the verdict is general. It gives damages on both counts, and of course, is for trespasses in the Mill-right close, which were the subject of dispute before the J ustice. There being an additional count does not vary the case. The only question is as to the costs of such a count, which the Court will always look to, so far as to prevent any, accumulation of double costs, beyond what would grow out of the count which relates to the matter in the Court below. The plaintiff recovering any amount of damages for this matter, is entitled to double costs, so that the additional count cannot vary them materially.

Rule accordingly.