Utter v. GiffordUtter v. Gifford
In this case the order of the court was, that the plaintiff, though recovering less than $50, was entitled to costs. This could not have been on the ground that the title to lands came in question on the trial, for there was no certificate of the judge of that fact, and the judge’s certificate is the only legal and proper evidence, at least in the first instance.
1. As the section of the Code above cited is the only one under the Code which relates to this subject, we must go back to the previous law and see if that gave costs in all actions of trespass upon lands; and if so, whether it has been repealed by the Code. The absolute right to costs upon a recovery for any amount is claimed under the provisions of the Revised Statutes, which it is insisted have not been repealed. By 2d Revised Statutes, 613, sec. 3', sub. 1, the plaintiff recovering judgment on a verdict in any of the actions relating to real estate, enumerated in the 5th chapter of that act, is entitled to costs. Among the actions mentioned in the 5th chapter is the title “ Of trespass on lands,” which, among other things, (2 R. S., 338, §§ 1, 2, 3,) authorizes a recovery of treble the damages assessed by a jury in cases where a person cuts down or carries off any wood, underwood, trees or timber on the lands of any other person, without the leave of the owner thereof; but single damages to be only recoverable where, on the trial of the action, it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land was his own. The plaintiff’s complaint shows a cause of action within the description embraced in this title. The question is, therefore, whether this statute has been repealed ? 1st. It has not been expressly repealed, at least so it has been held by the court of appeals in Bartle agt. Gilman, (17 How., 1; 18 N. Y. R., 260.) The only section which is cited as directly repealing it is section 303 of the Code, which abolished all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsellors, and allows to the
2. Is it repealed by implication or as being inconsistent with the provisions of the Code ? Section 468 declares that “ all statutory provisions inconsistent with this act are repealed.” Section 411 declares that, “until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus, nor any existing statutory provisions relating to actions not inconsistent with this act,” and is in substance applicable to the actions hereby provided ; nor any proceeding provided for by chapter 5 of the 2d part of the Revised Statutes, or by the 6th and 8th titles of chapter 5 of the 3d part of those statutes. The 6th title is “Of trespass on lands.” The provisions of that title are not therefore repealed, and the only question is, whether the right to costs, applicable to those provisions as fixed by the Revised Statutes, are repealed ? The titles named in the 5th chapter are: 1st, in ejectment; 2d, proceedings to compel the determination of claims to real property; 3d, partition; 4th nuisance; 5th, waste; 6th, trespass on lands; 1th, general provisions; 8th, proceedings to discover the death of persons. Section 455 applies the provisions of the Revised Statutes to all actions for the recovery of real estate, brought under the Code ; section 448 applies them to actions for partition; section 449 declares “ that proceedings to compel the determination of claims
So also subdivision 3 of section 3 of title 1 of chapter 10 of part 3 of the Revised Statutes, before quoted, (2 R. S'., 613,) gives costs of course in suits and proceedings upon writs of scire facias, and a general prohibition or information in the relation of a quo warranto. The Code, (§ 428 to 447,) retains the beneficial remedies sought under these proceedings, but directs them to be brought in the form of an action under the Code. But I do not see that it gives costs of course, unless the sections of
From this review of the legislation which has been had upon this subject, it is seen that the subject is involved in much doubt and confusion, and there would seem to be a necessity for some explicit legislation regulating it. In the absence of such legislation, I deem it very questionable whether the section of the Revised Statutes giving costs in a case like the present has been repealed by the Code ; and if we follow the spirit of the decision in Bartle agt. Gilman, above cited, I think we should hold it is not.
It is true it may be claimed that several of these actions are provided for, as it is barely possible they were intended to be, by section 306 of the Code, which provides that “ in other actions costs may be allowed in the discretion of the court.” But this is fatal to the defendant, as the court has exercised it-s discretion (if any existed) in this case, by awarding costs in favor of the plaintiff.
II. On the other branch of this case, to wit: whether a claim of title to real property arises on the pleadings, (see sec. 304 of the Code,) I am of opinion it does not. So far as I can comprehend the answer, its object and effect is : 1st, to disclaim all title to the land in question ,• 2d, to show that the trespass was casual and involnntary, and that the defendant had probable cause to believe that the land was his own; 3d, to show that the supposed trespass was committed with the license of the plaintiff.
It is true the defendant says, “ the parties agreed to and did straighten the line between them, and the plaintiff permitted defendant to occupy to the straightened line, and that some of the timber was cut on the part so set apart (to defendant) by plaintiff, and that afterwards by consent of the parties a straight line was run by a surveyor, and defendant did cut up to that line as he
But, upon the ground first discussed, I conclude, though with some hesitation, that the plaintiff was entitled to costs, and therefore the order of the special term should be affirmed, with $10 costs.