Smith v. Castlers — 5 Wend. 81

Majority

p. 81

Smith vs. Castlers.

Headnote

In an action for trespass on lands and carrying away timber, commenced pre. vious but determined subsequent to the revised laws going into effect, the plaintiff though entitled to judgment for treble the amount found by the jury, can recover single costs only.

Motion for treble damages and treble costs. In an action for trespass on lands and taking and carrying away timber, the jury found the value of the timber taken to be ,$67, and found a verdict for that amount. Tiie judge certified that on the trial of the cause, the title of the plaintiff to the lands entered upon came in question; that the lands were not in the actual possession of the plaintiff, and he was required by the defendant on the trial to prove his title to the same. The suit was commenced previous to 1st January, 1830. A motion was now made to treble the damages, and that the plaintiff be allowed treble costs.

J. A. Spencer, for plaintiffs.

T. Jenkins, for defendant.

By the Court,

Under the statute giving treble the value of timber carried off of land, 1 R. L. 525, § 29, it was held that the plaintiff was entitled to treble costs as well as to treble damages. 14 Johns. R. 328. By the revised statutes, however, it is declared that whenever by the provisions of any statute a plaintiff shall be entitled to recover double or treble the damages assessed by a jury, if such damages so doubled or trebled, as the case may be, entitle him to recover costs, he shall recover single costs only, except in cases specially provided for by law. 2 R. S. 616, § 23. The right of the plaintiff to costs must be governed by the provisions of the revised statutes, which in a case like the present give single costs only. The saving, in the repealing act of 1828, 2 R. S. 779, § 5, of rights accrued or established, does not entitle the plaintiff to treble costs, as his right to costs did not accrue until after those statutes had gone into operation.

The damages, therefore, must be trebled, but the plaintiff is entitled to only single costs.