2 Duer 622 | The Superior Court of New York City | 1853
This is plainly an action at common law, in which the allowance of costs does not rest at all in the discretion of the court. Under sections 304 and 305 of the Code, either the plaintiff, or the defendant, must be entitled to full costs, and, unless the question of title was involved, they must be given to the defendant.
It is not necessary to affirm, that in an action like the present,
We entirely agree with the counsel for the plaintiff that an action like the present is no more fit to be tried by a justice of the peace than a suit in equity to enforce the specific performance of a contract; but looking at the issues made by the pleadings, we cannot say, that under the terms of the Code, as formerly under those of the R. S., this action might not have been tried by a justice, had the damages claimed not exceeded the limits of his jurisdiction.
The order appealed from is affirmed, but without costs.