13 N.Y.S. 788 | New York City Court | 1891
The plaintiff in his complaint alleges that, while in the employ of defendant, he was engaged in working upon a die and punch machine, where he lost a finger, without any negligence on his part, but through the negligence of defendant in permitting the machine to become defective. He recovered a verdict for six cents. Defendant was allowed to tax costs in ,his own favor, though plaintiff claimed that he should have been allowed costs to the extent of his verdict. Whether the plaintiff or defendant is entitled to costs is the only question before us, and this turns upon whether or not this is an action for an “assault and battery” within the meaning of Codé Civil Proc. § 3228, subd. 3. This section expressly provides that if the plaintiff in an action for assault and battery Recovers less than fifty dollars he shall have costs not to exceed the amount of his recovery.
Under our Code practice, the difference between actions in matter of form only has vanished, but their intrinsic differences still exist. This often ren