Van Horne v. Petrie — 2 Cai. 213

Majority

p. 213

Van Horne against Petrie and others.

Headnote

Under the act concerning costs, a plaintiff must recover above fifty dollars damages, exclusive of the six cents or other costs, to entitle him, in tha supreme court, to costs of increase.

The word “ recover,” in the statute, means what shall be assessed as damages eo nomine

In this case the jury found a verdict in favor of the plaintiff, for 50 dollars damages and six cents costs. It was submitted to the court whether he was not entitled to his costs, of increase.

We think he is not. The act declares that if the plaintiff “ shall not recover above the sum of fifty dollars, besides costs, he shall not recover any costs, but shall pay costs to the defendant.” The recovery here spoken of means the damages assessed Ipr the jury, so no-mine, exclusive of the costs which they may arbitrarily find. The finding of a jury as to costs, has nothing to do with those which are to be allowed in taxation, otherwise they might entirely control the statute on this subject; for, in many cases, where they could not, in conscience, give more than a cent in damages to the plaintiff, they might think it hard on him not to recover costs of increase, and ^therefore, to entitle him to them, they might find a verdict for one cent damages and seventy dollars

p. 214

costs; this would hardly be allowed. If the verdict were recorded in this form, the court would not hesitate, in rendering judgment on it, to reject the finding, as to the costs, as altogether nugatory, and not within the province of a jury; or, if they gave judgment for the costs thus found, the damages being under fifty dollars, they would (and 'such is our judgment here) order the plaintiff to pay costs to the defendant.