Browning v. New York, L. E. & W. R.

Per Curiam. This appeal must be governed by the decision of this court made in the ease of Burns v. Railroad Co., 17 N. Y. Supp. 415, where it was stated, in the opinion of Mr. Justice Macomber, that the meaning of the word “recovers,” used in this section, clearly contemplates a decision upon a' question of fact, which, if allowed to remain unreversed, is conclusive upon the parties in respect to the issues there presented. In the case now before us three causes of action were stated in the complaint, each one of which was controverted in the answer. The first cause of action consisted of the allegation that the defendant so carelessly and negligently managed its locomotives and cars as to set fire to a division fence, owned by the plaintiff, between two of plaintiff’s lots of land adjacent to the railroad; that by reason thereof seven head of cattle, of the value of $170, were destroyed, for which a recovery was sought. The second cause of action was that, at a time stated, two cows of tlie plaintiff, of the.value of $25 each, escaped from the plaintiff’s lands, through a defective fence, which it was the duty of the defendant to maintain, and entered upon the lands and railroad of the defendant, and were run over and killed by the defendant’s locomotive. • The third cause of action is unimportant to the consideration of any question arising upon this appeal. The learned justice at the trial ruled that he should instruct the jury, which he accordingly did, that upon the first cause of action the jury should render a verdict for the defendant, upon the ground, as appears from the moving affidavits, which are not contradicted, that, by an ancient deed of the lands pertaining to the first cause of action, there was a covenant which ran with the lands, which required the owner of the adjacent property to maintain fences, and for that reason no recovery could be had against this defendant. It will thus be seen that the defendant •succeeded, upon a question of fact, against the plaintiff upon the first cause of action. Upon the second cause of action the jury rendered a verdict for the value of the two cows, namely, $50, and interest from the time of the killing. Under these circumstances, inasmuch as the causes of action were separately stated and issues of fact were taken upon each of them, and a decision in favor of the defendant upon the first cause of action and in favor of the plaintiff upon the second cause of action was rendered, all the provisions for correlative bills of costs, contained in the section above mentioned, must be applied; for in regard to each of such causes of action there was a decision, by a proper tribunal, of a question of fact, which, as long as it remained unreversed, was conclusive upon the parties to this action. It is clear, therefore, that the plaintiff had a “recovery” upon the second cause of action, and it is equally clear that the defendant liad a “recovery” upon the first cause of action. This, it seems to us, is the precise case contemplated by this provision of the Code; and it follows that the order appealed from should be reversed, and the bill of costs of the defendant, arising upon the first cause of action, should be taxed in defendant’s favor. Order appealed from reversed, with $10 costs and disbursements, and the defendant’s motion granted, with $10 costs.