Rumsey v. New York & New England Railroad ( 1892 )

DYKMAN, J.

This action was commenced for the recovery of ■damages resulting from the obstruction of the approach to the plaintiffs’ upland from the Hudson river, and for an injunction. Upon the trial the plaintiffs recovered a verdict of six cents damages. The judge who held the circuit refused to give a certificate that title to land came in question, but the clerk, notwithstanding such refusal, allowed and faxed a full bill of costs to the plaintiffs. Upon the motion of the defendant the court at special term vacated the taxation, and ordered the clerk to tax costs in favor of the defendant. From that order we have this appeal.

There was no claim in the complaint in this action for an invasion of the possession of the plaintiffs, or for any injury to the freehold, and it- was therefore unnecessary for them either to allege or prove their title. It follows that no question of title arose either upon the plead-" ing or upon the trial, and the plaintiffs can recover full costs upon no other ground. The order should be affirmed, with $10 costs and disbursements.