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Kirk v. Blashfield

6 Thomp. & Cook 509 Court N.Y. Sup. Ct. English

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p. 509
Kirk v. Blashfield.

Headnote

Former adjudication—jurisdiction of justice’s court. Costs. Practice — on appeal.
Plaintiff brought action in a" justice’s court. Defendant objected to the jurisdiction of the justice on the ground that the accounts between the parties exceeded $400. The justice dismissed the action on that ground. In an action brought in the Supreme Court upon the same claim, held, (1) that the decision in the justice’s court was the law of the case upon the question of the jurisdiction of that court; (2) that defendant could not set up that that court erred in its decision, and (3) that plaintiff was entitled to costs upon a recovery of $38.50, although the mutual accounts were less than $400.
The plaintiff’s costs were allowed by an order at special term, after which he entered judgment. Held, that to review the question of costs, an appeal .should be taken from the order and not from the judgment.
APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury.
The action was brought by George P. Kirk against H. Wilson Blashfield, for work, labor and services. The only question involved was in relation to costs. Sufficient facts appear in the opinion.
O. Porter and A. J. Parker, for appellant,
cited Sinclair v. Jackson, 8 Cow. 543 ; Warren v. Leland, 2 Barb. 613 ; Brewster v. Striker, 2 N. Y. 19 ; Union Bank v. Bush, 36 id. 631; Gailor v. Herrick, 42 Barb. 79 , 87; Davis v. Morris, 36 N. Y. 569 .
B. A. Benedict, for respondent.
Present — Learmed, P. J., Boardmam and Jeams, JJ.

By the Court. The plaintiff commenced an action in a justice’s court. The defendant objected to the jurisdiction on the ground that the accounts between the parties exceeded $400. The justice, after first overruling the objection, finally dismissed the action upon that same ground. The plaintiff then sued in this court, and recovered $38.50. On a motion at special term he was allowed costs. An appeal is taken from the judgment.

It is admitted that the justice was in error in his decision. But

p. 510
’ no appeal was taken from it, and it should be held conclusive on the parties. If an appeal had been taken, and thereupon the same decision had been made in this court, there would be no doubt that the matter would have been res adjudicata.

As the plaintiff rested satisfied with the decision which was made by the justice, and as that was made on the defendant’s objection, it must be taken as the settled rule of this present case. The special term was right in granting costs.

We have examined the question raised as to this order, because it has been argued by the parties. But, as a matter of practice, the defendant should have appealed from the order of the special term, granting the plaintiff costs, and not from the judgment. This case ’is therefore not to be considered a precedent as to the manner of reviewing such orders.

The judgment is affirmed.

Judgment affirmed.

Cases cited