Risley v. Squire

By the Court, Clerke, P. J. The findings of fact cannot be disturbed by us. There is not only some evidence tending to support them, but the referee would have clearly erred, if he had come to any other conclusion. He finds that the plaintiff was the owner of the five bags of chiccory; that possession was demanded from the defendants and all legal charges were tendered; that they refused to surrender these bags, .and that they had no right to charge four cents, and were only entitled to three cents per month. - The only question in the case, in which there was room for any reasonable doubt, is that arising from the pendency of another action. Certainly, the law is opposed to circuity of action; that is, opposed to any attempt to obtain indirectly by means of a subsequent action, a result which maybe reached in an action already pending. But, when the first action, the pendeney of which the defendants set up, was commenced, it was not known to any of the parties that the defendants bad custody of the five bags, for which this action was brought. The plaintiff’s right to 640 bags was not disclosed; evidently, therefore, the second action was not commenced for the purpose of obtaining,.indirectly, by means of it, a result which might have been reached in an action already pending. I think, therefore, that the findings of fact and law on the issues are correct. But the sum paid to the sheriff for services and expenses, cannot be allowed to the plaintiff [285] as damages. If they are chargeable at all, they should be charged as costs or disbursements, and taxed by the clerk on due proof of their nature and character. New York General Term, January 4, 1869. I advise that the judgment should be affirmed, without costs, provided the plaintiff shall consent to deduct those damages from the judgment, reserving to him the right, if he should do so, to have his costs retaxed. If he refuse to deduct those damages the judgment should be reversed, with, costs. The same disposition should be made of case Ho. 1, between the same parties. The same error was committed by the referee in allowing the plaintiff, as damages, the sum of $103, paid to the sheriff*. Clerke, Sutherland and .Geo Q, Barnard, Justices.]