To defendants.

Code took effect, but tried afterward, are to be governed as respects costs by the previous statutes. But costs of the proceedings, subsequent to the verdict, are governed by the provisions of the Code. McMasters v. Vernon, 4 Duer, 625; S. C., 1 Abb. 179; Fitch v. Livingston, 4 Sandf. 712; Rich v. Husson, 1 Duer, 617; S. C., 11 N. Y. Leg. Obs. 119.

i. To defendants. It is provided, by section 305 of the Code, that costs shall be allowed of course to the defendant in the actions mentioned in section 304, unless the plaintiff be entitled to costs therein.

On the dismissal of an action, the defendant is, prima facie, entitled to costs; and, if the plaintiff would escape the operation of the general rule, he must bring himself within some one of the exceptions to it. Banta v. Marcellus, 2 Barb. 373.

The object and design of the above section is to indemnify each defendant who shall be unjustly brought into court, and compelled to defend himself against an unfounded claim. Hence, in an action for a tort, where a verdict is rendered in favor of certain of the defendants and against others, the defendants prevailing are entitled, of course, to costs, under section 305, although all the defendants had joined in a single answer. Daniels v. Lyon et al., 9 N. Y. (5 Seld.) 549; Decker v. Gardiner, 8 N. Y. (4 Seld.) 29. See Hinds v. Myers, 4 How. 356; S. C., 3 Code R.48; Brown v. Bowen, 16 How. 544; Contra, Bulkley v. Smith, 1 Duer, 704. And the same rule has been held to be applicable as to costs in actions on contracts. Corbett v. Ward, 3 Bosw. 632. See Bridgeport Fire & Marine Ins. Co. v. Wilson, 20 How. 511; S. C., 7 Bosw. 699; 12 Abb. 209. But where two defendants, sued on the same instrument, both appear by the same attorney, and interpose substantially the same defense, although by separate answers, only one bill of costs can be allowed on their prevailing in the action. Atkins v. Lefever, 5 Abb. N. S. 221.

Where the defense of infancy is set up by one of several defendants, the plaintiff may, as to him, discontinue the action without costs, on application to the court before trial. But, if the infant is obliged to establish his infancy, he is entitled to costs. Cuyler v. Coats, 10 How. 141. And where two defendants are jointly liable, and process has been served only upon one, if the one not served moves that the plaintiff be compelled to receive his answer, which sets up the sole defense of infancy,

To defendants.

the plaintiff should be allowed to discontinue without costs as to such defendant, except the costs of the motion. Wellington v. Classon, 9 Abb. 175; S. C., 18 How. 10; Waterbury Manufacturing Co. v. Krause, 1 Hilt. 560; S. C., 9 Abb. 175, n.

Neither party to an action is entitled to costs, where the plaintiff recovers less than $50, although he extinguishes a counterclaim set up in the answer which exceeds that amount. Kalt v. Lignot, 3 Abb. 190; affirming S. C., id. 33; 12 How. 535. See Landsberger v. The Magnetic Telegraph Co., 8 Abb. 35; Boston Mills v. Eull, 6 Abb. N. S. 319; S. C., 37 How. 299; 1 Sweeny, 359. If, however, the action is one of which a justice of the peace has no jurisdiction, the plaintiff may recover costs, although his verdict is for less than $50 after extinguishing a setoff. Ib. See Contra, Crane v. Holcomb, 8 Abb. 35, 36; S. C. affirmed, 2 Hilt. 269; and see Griffin v. Brown, 35 How. 372; S. C., 53 Barb. 428.

Section 305 of the Code is confined to the actions mentioned in section 304, which has no application to foreclosure suits; and where the plaintiff discontinues an action for the foreclosure of a mortgage before judgment, the allowance of costs to the defendants would seem to rest in the discretion of the court. Gallagher v. Egan, 2 Sandf. 742; Pratt v. Ramsdell, 16 How. 59; S. C., 7 Abb. 340, n; S. C. affirmed, 16 How. 62, n; Bartow v. Cleveland, 7 Abb. 339; S. C., 16 How. 364.

CHAPTER II.

WHAT COSTS ALLOWED ON ENTRY OF JUDGMENT.

ARTICLE I.

WHEN ALLOWED, AND THE AMOUNT.

Section 1. Costs when title to land is in question.

a. In general. Full costs shall be allowed, of course, to the plaintiff, upon a recovery in an action for the recovery of real property, or 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. Code, § 304, subd. 1.

The term title, as used in this section of the Code, means right of possession and not possession in fact, nor mere right of property; and where actual possession is sufficient to maintain the action, evidence in regard to such actual possession does not draw the title in question. Muller v. Bayard, 15 Abb. 449. And it has been held, that no question as to title arises in an action to recover damages for the breach of an agreement to convey lands, where the only issue raised is as to whether there was an incumbrance resting upon the lands; as, for example, a right of dower, etc. Smith v. Riggs, 2 Duer, 622. Neither is the question as to whether certain fixtures are part of the realty, a question of title within the meaning of the above section. Burnet v. Kelly, 10 How. 406; nor is a question (incidentally raised), as to the ownership of land by a third party, a question of title under the statute as to costs. The statute means a contested title as to some particular lands to which the plaintiff claims title. Ib.

And the claim of title must be one which is in controversy between the parties, and not a claim the justice of which is conceded by the defendant. O'Reilly v. Davies, 4 Sandf. 722. See Rathbone v. McConnell, 21 N. Y. (7 Smith) 466; S. C., 20 Barb. 311.

Where the issue is not raised by the pleadings, the only proper evidence that can be received, as to whether or not the title came in question at the trial, is the certificate of the judge who tried the cause. Niles v. Lindsley, 1 Duer, 610; S. C., 8 How. 131; Utter v. Gifford, 25 id. 289. See Burnet v. Kelly, 10 How. 406;

When title arises on the pleadings.

Blake v. James, 19 id. 321. The certificate of a referee that the title to land came in question is of no avail, where, from the pleadings, the court can see that it did not. Squires v. Seward, 16 How. 478.

Although the plaintiff may recover a verdict in the action, yet if he fails on the issue of title, it is not a recovery within the meaning of the statute, and he is not entitled to costs under its provisions. Burhans v. Tibbits, 7 How. 74. See Alexander v. Hard, 42 How. 131; id. 384.

b. When title arises on the pleadings. To bring an action within the provisions of section 305, there must be a real issue upon the question of title. An immaterial issue is insufficient for this purpose, even though title is alleged in the complaint and denied in the answer. Rathbone v. McConnell, 20 Barb. 311; S. C. affirmed, 21 N. Y. (7 Smith) 466.

Where an action is, in substance, the former action of waste, the complaint alleging a forfeiture and praying for a recovery of possession, the plaintiff's title is material. Snyder v. Beyer, 3 E. D. Smith, 235. And so a claim of title to growing trees or shrubbery raises an issue of title to land. Powell v. Rust, 8 Barb. 567; S. C., 1 Code R. N. S. 172.

A mere license is not an interest in lands, such as to draw the title in question. Turner v. Van Riper, 43 How. 33; Doolittle v. Eddy, 7 Barb. 74. Hence, a defense of leave and license does not raise a question of title. Rathbone v. McConnell, 20 Barb. 311; S. C. affirmed, 21 N. Y. (7 Smith) 466; People v. New York Common Pleas, 18 Wend. 579; Wickham v. Seely, id. 649; Launitz v. Barnum, 4 Sandf. 637; Muller v. Bayard, 15 Abb. 449; Utter v. Gifford, 25 How. 289.

In an action for damages inflicted by the defendant's dog, an answer alleging that the dog was, at the time, on the defendant's premises, and that the plaintiff had no right to be there, does not put in issue a claim of title, so as to entitle the plaintiff to costs under the provisions of the statute. Pierret v. Miller, 3 E. D. Smith, 574.

But, in an action for an assault, where the answer states that the place where the trespass is alleged to have been committed is a public highway, a denial of the allegation will bring the title to lands in question. Dinehart v. Wells, 2 Barb. 432; Heath v. Barmour, 35 How. 1; S. C., 53 Barb. 444; Hall v. Hodskins, 30 How. 15. In an action for a trespass upon lands, title is not

When title arises on the evidence.

a material issue, unless it appears upon the face of the pleadings that the plaintiff is not in possession. Squires v. Seward, 16 How. 478; Miller v. Decker, 40 Barb. 228; Rathbone v. McConnell, 21 N. Y. (7 Smith) 466; S. C., 20 Barb. 311. But where it appears, from the face of the pleadings, that the plaintiff is not in possession, the actual title is in issue, if title is denied. Niles v. Lindsley, 1 Duer, 610; S. C., 8 How. 131. The rule is otherwise, however, if title is admitted by the answer. Wickham v. Seely, 18 Wend. 649. In that case the right of the plaintiff to recover costs depends upon the amount of the recovery, and is determined by the fourth subdivision of section 304 of the Code. Turner v. Van Riper, 43 How. 33.

It was a rule under the Revised Statutes, and in the earlier decisions of the courts, that a claim to an easement, by prescription or grant, was sufficient to raise a question of title, if disputed. Heaton v. Ferris, 1 Johns. 146; Eustace v. Tuthill, 2 id. 185; Tunicliff v. Lawyer, 3 Cow. 382; Striker v. Mott, 6 Wend. 465; Radley v. Brice, id. 539. And the same rule seems to be still recognized under the Code. See Rathbone v. McConnell, 21 N. Y. (7 Smith) 466; Utter v. Gifford, 25 How. 289; Heath v. Barmour, 35 id. 1; S. C., 53 Barb. 444.

c. When title arises on the evidence. Under the former system of pleading, by pleading the general issue a defendant in trespass put in issue the right of possession, as well as the fact of possession; and, because the right was thus put in issue, the title to the land was in question. But, under the present system, nothing is in issue but what the answer puts in issue; and, if it does not put in issue the right to the possession, but only the fact of the possession, the title to the land is not in question. If the answer does not raise the question, the proofs cannot; unless, from the circumstances of the case, the fact of possession could not be proved without proving a right to the possession. It hence follows that, if the title is not put in issue by the pleadings, or is not necessarily proved at the trial, no issue is raised such as to entitle the plaintiff to costs, under the provisions of the Code, section 304, subd. 1. Burnet v. Kelly, 10 How. 406. When costs are claimed on the ground that the question of title arises on the evidence, a certificate must be procured, from the judge or referee who tried the cause, of the fact that the title was so in question, and that the plaintiff proved his title. Code, §304. See Squires v. Seward, 16 How. 478; Turner v. Van Riper,