Rumsey v. New York & New England Railroad — 50 N.Y. St. Rep. 253

Majority

p. 253

Harriet S. Rumsey et al., App'lts, v. The New York & New England Railroad Co., Resp't.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Costs—When title to land not involved.

An action for damages resulting from the obstruction of the approach to plaintiffs’ upland from the river and for injunction, where no invasion of possession or injury to the freehold is alleged, involves no question of title to real estate, and plaintiffs on recovering nominal damages are not entitled to costs.

Appeal from order vacating taxation of costs in favor of plaintiffs and directing the clerk to tax costs in favor of defendant.

H. H. Hustis, for app’lts;

W. 0. Anthony, for resp’t.

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 taxed a full bill of costs to the plaintiffs.

Upon the motion of the defendant 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 pleading or upon the trial, and the plaintiffs can recover full costs upon no other ground.

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.