Von Schoning v. Mitchell — 23 How. Pr. 44

Majority

p. 44

NEW YORK SUPERIOR COURT.

Emil Von Schoning agt. Thomas Mitchell and Andrew Buchanan.

Headnote

In an action to recover the possession of personal property, where the jury found a verdict for the plaintiff for the return of the property, assessing the value at less than $50—no damages found for the detention of the property, held, that the plaintiff having prevailed, and being entitled to nominal damages and costs at least, the defendant was not entitled to costs.

Special Term,

April, 1862.

This was an action brought by the plaintiff to recover the possession of personal property, the value of which, as sworn to by the plaintiff, was $60. On the trial of the cause, the jury found a verdict for the plaintiff for the return of the property, assessing the value thereof at $40. No damages were found for the detention of the property. On the taxation, the clerk adjusted costs in favor of the defendants, on the ground that the verdict was for a less sum than $50, and that no damages had been awarded to the plaintiff for the detention thereof; thereupon the defendants entered up judgment against the plaintiff for costs, less $40, the value of the property as assessed by the jury.

This motion was to vacate the judgment.

A. H. Reavey, for the plaintiff.

J. G. McAdam, for the defendants.

I think the judgment is irregular in that it gives costs to the defendants. The plaintiff is the prevailing party; the jury found a verdict for the return of the property to him, assessing its value at $40. This entitled the plaintiff to recover at least nominal damages; and section 304 (Code) gives to him the like amount of costs ; the plaintiff being entitled to costs of any amount, the defendant cannot recover costs.

The motion should be granted, with $7 costs.