Hyperlawhypertext legal database Rumsey v. New York & New England Railroad 21 N.Y.S. 193

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Rumsey v. New York & New England Railroad

21 N.Y.S. 193 Court N.Y. Gen. Term Decision date 1892-12-12 English

Delivered by DYKMAN, J.

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p. 193
RUMSEY et al. v. NEW YORK & N. E. R. CO.
(Supreme Court, General Term, Second Department.
December 12, 1892.)

Headnote

•Costs—Controversy as to Title. Where, in an action for damages resulting from the obstruction by the defendant’s railroad of the approach to plaintiffs’ upland from a river, there is no claim in the complaint for any invasion of plaintiffs’ possession, or for any injury to their freehold, plaintiffs cannot recover costs upon obtaining a verdict for only nominal damages, since the title to land is not in question.
Appeal from special term, Dutchess county.
Action by Harriet S. Rumsey, Harriet M. Rumsey, Julia Rumsey, and Elizabeth Rumsey against the New York & New England Railroad Company. From an order awarding costs to .defendant, plaintiffs appeal. Affirmed.
Argued before DYKMAN and PRATT, JJ.
H. H. Hustis, for appellants.
Walter C. Anthony, for respondent.

This action was commenced for the recovery of ■damages resulting from the obstruction of the approach to the plaintiffs’ upland from the Hudson river, and for an injunction. Upon the trial the plaintiffs recovered a verdict of six cents damages. The judge who held the circuit refused to give a certificate that title to land came in question, but the clerk, notwithstanding such refusal, allowed and faxed a full bill of costs to the plaintiffs. Upon the motion of the de

p. 194
fendant the court at special term vacated the taxation, and ordered the clerk to tax costs in favor of the defendant. From that order we have this appeal.

There was no claim in the complaint in this action for an invasion of the possession of the plaintiffs, or for any injury to the freehold, and it- was therefore unnecessary for them either to allege or prove their title. It follows that no question of title arose either upon the plead-" ing or upon the trial, and the plaintiffs can recover full costs upon no other ground. The order should be affirmed, with $10 costs and disbursements.