Welsh v. Fallihee — 56 N.Y. St. Rep. 777

Majority

p. 777

John Welsh, App’lt, v. Edward Fallihee, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January, 1894.)

Headnote

Costs—Question oe title.

Where the allegation of the answer amounts simply to the claim of the right of possession by defendant, it does not raise an issue of title to real estate.

Appeal from an order of the Monroe special term, denying plaintiff’s motion for the relaxation of costs.

D. Merville Page, for app’lt; Dalson & Dalson, for resp’t

The action was for assault and battery; defendant’s answer was in substance that -plaintiff, immediately prior to the alleged assault, entered upon defendant 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 door-way of 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 twenty dollars for his damages, and claimed a full bill of costs, upon the theory that the title to real estate was in question ; the clerk taxed twenty dollars costs, and the special term denied plaintiff’s motion for relaxation. We think the special term was right. The allegation of the answer 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

p. 778

appeals held against plaintiff’s contention. The order appealed from should he affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Bradley, J., concur.