Wheelock v. Hotchkiss

18 How. Pr. 468

• Court: New York Supreme Court
• Decided: January 15, 1860
• Status: Published

Opinion

By the court—Marvin, J ustice.

After consulting Bartle agt. Gilman, (17 How. 1), Dockstader agt. Sammons, (4 Hill, 546), and Foster agt. Cleveland, (6 How. 253), I have come to the conclusion that the defendant is not entitled to double costs upon the appeal to the county court, but is entitled to double costs upon the appeal to the supreme court.

In Dockstader agt. Sammons, the defendant, a constable, was beaten in the common pleas, and brought error to the supreme court, and the judgment was reversed; it was held that he was not entitled to double costs on the writ of error, he being plaintiff in error, and the statute only giving double costs to a defendant.

In Foster agt. Cleveland, the appellant is regarded, for the purposes of the statute, giving double costs as plaintiff, and the respondent as defendant. This being so, the defendant in this case was not entitled, according to Dockstader agt. Sammons, to double costs upon his appeal to the county court. But as he was respondent in the supreme court, and succeeded, he is entitled to the double costs. Such is the result of the two cases in 4 Hill and 6 Howard.

It is not necessary to apply to the court, in the first instance, for double costs. The clerk may adjust them. The case, 4 Wend. 216, related to treble damages and treble costs. By the statute, the damages are to be treble the amount assessed by the jury. (2 R. S. 338, § 1.)