Lillis v. O'Conner

JBooKes, J.: The decision in Dinehart v. Wells (2 Barb., 432) seems entirely conclusive of the question presented on this appeal. According to that decision the provision of the Code which declares that in an action for assault and battery, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, does not nullify or affect the prior provision of the same section (304), which provides that costs shall be allowed of course to the plaintiff when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. True, the language of the Code is not precisely the same as that of the statutes under consideration in Dinehart v. Wells, but the intent and meaning were the same. The difference in the phraseology is but formal, and admits of no construction dissimilar in the one case from the other. That decision, being a General Term decision, should be adhered to until overruled in the appellate court. It is suggested that there is an important dissimilarity between the case cited and the one in hand, as regards the pleadings. In the case cited the action, like that here before us, was for assault and battery. The answer was the same in both cases, to wit: (1) general denial; (2) son assault demesne; (3) moliter manus imposuii in defense of defendant’s possession. In the case cited there was a reply to the third defense, alleging the locus in quo to be a public highway, and that the plaintiff was lawfully there when the injury complained of was inflicted. To this the defendant rejoined, denying that the locus in quo was a highway. Thus an issue was raised upon the third defense, and the court held that on,such issue the title to land [282] came in question on tbe pleadings. This line of pleading was admissible when the record in that case was made up by the parties, but now, under the Code, no reply to the defendant’s answer was admissible (Code, § 153), and the third defense was to be deemed controverted by the adverse party as upon denial or avoidance. (Sec. 168.) The two cases are therefore precisely alike as regards the pleading. Thus, in the case in hand, according to the decision in Dinehart v. Wells, and in legal logic, a claim of title to real property was raised on the pleadings. The defendant tendered the issue by his answer; a reply was inadmissible; but the new matter interposed as a defense was by the Code to be deemecl controverted, “ as upon a direct denial or avoidance.” (Sec. 168.) It seems also that the title to real property came in question on the trial. The judge so certified; and the papers before us show that evidence was given bearing on the question of title; and the judge charged the jury on the subject. A point is made that the certificate is by the judge and not by the court, but it does not appear, as it should to make this objection available, that it was raised before the taxing officer; and besides, for aught that appears, the certificate was made by the court. The county judge is the court when in session, and that court is always open for the transaction of any business, for which no notice is required to be given to the opposite party. (Sec. 31.) It should be added here,, perhaps, that the certificate was conclusive upon the taxing officer, that the title to land came in question on the trial. (Mumford v. Withey, 1 Wend., 279; Barney v. Keith, 6 Wend., 555; Burhans v. Tibbits, 7 How., 75, per Wright, J.; Niles v. Lindsley, 1 Duer, 610; Utter v. Gifford, 25 How., 297, per Hogeboom, J.) If improperly granted the certificate may be set aside on motion for that purpose. (Barney v. Keith, supra.) The order appealed from must be affirmed, with ten dollars costs and disbursements. LearNEd, P. J., and Boardmait, J., concurred. Order affirmed, with ten dollars costs and disbursements.