Seaman v. Glegner — 10 N.Y. Sup. Ct. 119

Majority

p. 119

ROBERT SEAMAN and others, Appellants, v. JACOB GLEGNER, Respondent.

Headnote

Code, § 804, sub. 8—when plaintiff not entitled to costs.

Where, in an action brought to recover damages for the conversion of personal property, the plaintiff in his complaint demands judgment for $10,000, ■ and upon the trial recovers a verdict for one dollar, he is not entitled to costs, as the action is one of which a justice of the peace would, upon proper pleadings, have had jurisdiction.

Appeal from an order of the Special Term, denying a motion to set aside an adjustment of costs in favor of defendant.

The following is the opinion delivered by Westbrook, J., at the Special Term:

“ I think subdivision 3 of section 304, was intended to cover the class of cases, of the subject-matter of which a justice has no jurisdiction. It cannot be that a party who claims, in an action of which a justice has jurisdiction, more than $200, and then brings an action here, and recovers less than fifty dollars, is entitled to costs. The recovery in the cause established that the justice would have had jurisdiction to try it. Subdivision 4 of section 4 controls the costs.

If the recovery at circuit was wrong, the remedy is by appeal. The motion to readjust costs is denied. (See 42 How., 131 ; 8 Abbott, 39.)”

S. F. Cowdrey, for the appellants,

cited Ryan v. Doyle ( 40 How., 215 ); Glacken v. Zeller ( 52 Barb., 153 ); Stilwell v. Staples ( 5 Duer, 693 ); Griffen v. Brown ( 35 How., 375 ); Bellinger v. Ford ( 14 Barb., 250 ); Rockwell v. Perine (5 id., 573).

Fa/oid Leroy, for the respondent.

This action was brought for the recovery of damages for the conversion of personal property, of the alleged value of $7,300, for which conversion damages were demanded in the sum of

p. 120

$10,000. On the trial, the plaintiff recovered a verdict for one dollar. On this recovery the defendant procured the adjusting of the costs in question. The point is, whether the case is embraced in subdivision 3 of section 304 of the Oode, by which costs are given to the plaintiff, irrespective of the amount of recovery, in the actions in which courts of justice of the peace have no jurisdiction.

It is clear that a justice of the peace, upon proper pleadings, would have had jurisdiction to have tried this action. It was for the recovery of damages for the conversion of personal property, and the verdict establishes (for all the purposes of this question) that such damages were in fact only one dollar. To have recovered that sum, the plaintiff might have pleaded in J ustice’s Court precisely as he has in this court, except that he should have conformed the amount of damages demanded to the requirement of the stat-. ute regulating those courts. Because he has, in an action the subject-matter of which was within the jurisdiction of the court of a justice of the peace, demanded $10,000 damages, where his real claim was for but one dollar, does not entitle him to costs of this court, on recovery of the dollar here. To give the provision of the Code that construction, is to nullify and bring into this court every cause of action, now triable in Justices’ Courts, by a demand of damages exceeding $200, and to entitle plaintiff to costs in such actions, if he recover six cents.

We think the court below was correct in its decision, for the reasons expressed in the opinion of Westbrook, J., and upon the authority cited by him.^[1] '

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

Daniels and Lawrence, JJ., concurred.

Ordered accordingly.

* Alexander v. Hard, 42 How. P. R., 131 .