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Welsh v. Fallihee

27 N.Y.S. 81 Court N.Y. Gen. Term Decision date 1894-01-18 English

Delivered by LEWIS, J.

Contents

Majority

p. 81
(75 Hun, 308.)
WELSH v. FALLIHEE.
(Supreme Court, General Term, Fifth Department.
January 18, 1894.)

Headnote

Costs—When Title to Real Estate Involved.
In an action for assault and battery, an answer which states that, immediately before the alleged assault, plaintiff entered on defendant’s close, and stood in the doorway of an ice house in which defendant was putting in ice, and that defendant removed him from the door, using no unnecessary force, does not put the title to real estate in issue, (Code Civil Proc. § 3228, subd. 1,) so as to entitle plaintiff to costs on final judgment in his favor.
' Appeal from special term, Monroe county.
Action by John Welsh against Edward Fallihee for assault and battery. From an order denying plaintiff’s motion for a retaxation of costs, plaintiff appeals. Affirmed.
Argued before DWIGHT. P. J., and LEWIS, HAIGHT, and BEADLEY, JJ.
D. Merville Page, for appellant.
Dalson & Dalson, for respondent.

The action was for assault and battery. Defendant’s answer was, in substance, that plaintiff, immediately prior to the alleged assault, entered upon defendant’s close and property, on which was an ice house, into which the defendant was at the time engaged in putting ice, and stood in the doorway c-f the house, and obstructed the defendant’s business, and that defendant removed plaintiff away from the door, .using no unnecessary force, etc. There was no certificate that any question of title to real estate arose upon the trial. The plaintiff had a verdict for $20 for his damages, and claimed a full bill of costs, upon the theory that the title to real estate was in question.[1] The clerk taxed $20 costs, and the special term denied plaintiff’s motion for retaxation.

We think the special term was right. The allegations of the an

1 Code Civil Proc. § 3228, provides as follows: “The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions: (1) An action, triable by a jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial.”

p. 82
swer amounted simply to the claim of the right of possession by defendant. It did not raise an issue of title to real estate. The case of Langdon v. Guy, 91 N. Y. 660 , was a much stronger case for a full bill of costs than this, and yet the court of appeals held against plaintiff’s contention. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

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