Welsh v. Fallihee — 82 N.Y. Sup. Ct. 308

Majority

p. 308

John Welsh, Appellant, v. Edward Fallihee, Respondent.

Headnote

Pleadings — issue of title to real estate — costs.

In an action brought to recover damages for an assault and battery, the defendant answered, alleging that immediately prior to the alleged assault the plaintiff entered upon the defendant’s property on which was an ice house, stood in the doorway thereof, obstructing the defendant’s business, and that the defendant removed the plaintiff, using no unnecessary force, etc.

There was no certificate that any question of title to real estate was raised upon the trial. The plaintiff recovered a verdict for twenty dollars damages, and claimed a full bill of costs.

Held, that the allegations of the answer amounted simply to a claim of the right of possession by the defendant and did not raise an issue of title to real estate, and that the plaintiff was not entitled to a full bill of costs.

Appeal by the plaintiff, John Welsh, from an order of the Supreme Court, made at the Monroe County Special Term and entered in the office of the clerk of the county of Steuben On the 23d day of September, 1893, denying the plaintiff’s motion for a retaxation of costs.

P. Merville Page, for the appellant.

Poison <& Poison, for the 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 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 cleric taxed twenty dollars costs, and the Special Term denied plaintiff’s motion for retaxation.

p. 309

We think the Special Term was right. The allegations 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 Appeals held against the plaintiff’s contention.

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

Dwight, P. J., Haight and Bbadley, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.

Cases cited

Langdon v. Guy 91 N. Y. 660 N.Y. 1883-02-09 p. 309