
    Thaddeus Munson, Resp’t, v. Melvin Curtis, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Juby—In actions on contbact mat not be instructed as to bight to COSTS.
    In actions on contract the amount of the recovery is to be determined on fixed principles applicable to the evidence in the case ; and it is error to instruct the jury in regard to the liability of the parties for costs.
    2. Justice’s coubt—Costs on appeal fbom judgment op—Code Civ.Pbo., § 3070, as amended by Laws 1885, chap. 522.
    The allowance and taxation of costs, upon an appeal from the judgment of a justice’s court, are regulated by Code Civ. Pro., § 3070, as amended by Laws 1885, chap. 522, in all actions where judgment on such appeal is rendered subsequent to the passage of that act.
    Appeal from a judgment entered on the verdict of a -jury in the Ontario county court on appeal from the judgment of a justice’s court and from an order denying a motion for a new trial.
    
      Spencer Gooding, for app’lt; L. C. Hall, for resp’t.
   Dwight, J.

The action was for compensation, at an. agreed price per pound, for drying and curing a quantity of hops.

The defendant set up a counter-claim for injury to bishops by the negligence and unskillfulness of the plaintiff in doing the work.

In the j'ustice’s court the plaintiff recovered $55.34 damages. The defendant appealed and had a new trial in the county court. On that trial, after the jury had retired for consultation, they returned into court and asked to be instructed in respect to the costs of the action. The court thereupon, under the objection of the defendant, instructed, the jury that if, by their verdict, the plaintiff’s recovery in the justice’s court was reduced at least ten dollars, then the-defendant would be entitled to costs; otherwise the plaintiff would have costs in addition to the amount of the verdict;, and the jury found for the plaintiff $44.91.

The defendant excepted to the instruction as given; and now assigns as grounds of the appeal to this court the error of the county judge: First, in giving any instructions to the jury on the subject of costs; second, in giving the particular instruction excepted to.

It was error to instruct the jury at all, in this case, on the question of costs. Lattimer v. Hill, 8 Hun, 171.

In actions in which punitive damages may be given, such instruction is proper, since the measure of such damages is in the discretion of the jury, and costs are themselves punitive. Waffle v. Dillenback, 38 N. Y., 53. But in actions on contract, the amount of the recovery is to be determined on fixed principles applicable to the evidence in the case and wholly independent of the question of costs; the jury have no discretion in fixing the amount, and they violate their duty if they suffer their judgment to be influenced by extraneous considerations.

Moreover, the instruction given was erroneous. This court has already held in this case, reviewing the allowance and taxation of costs herein, that the amendment of section 3070 of the Code of Civil Procedure, by the act of 1885 (chap. 522), was applicable to the case, and, accordingly, that the plaintiff was entitled to costs if he recovered any verdict against the defendant. Munger v. Curtis, 4 N. Y. State Rep., 847.

That the verdict was influenced by the instructions given cannot be doubted. It reduced the recovery in the justices’ court a few cents more than the ten dollars necessary under the rule, as stated, to give costs to the defendant. This result, in view of the instructions given, and, especially, of the fact that the jury had asked for the instruction, showing that they had had the question of costs under consideration, cannot be regarded as a mere coincidence. The amount of the verdict was evidently governed by the intention of the jury to give costs to the defendant.

And so, as we have reason to believe, the real questions of fact in the case have been ignored, the rules of law correctly laid down by the court have been disregarded, and the jury have devised a verdict which, by its effect on the award of costs, and by offsetting the defendant’s costs to the plaintiff’s recovery, will, as they think, balance up the “equities” between the parties.

. In such case we need not stop to inquire whether the verdict is more or less favorable to the party appealing than it would have been had the erroneous instruction not been given; such inquiry would be mainly speculative. It is enough if a verdict has been rendered on false grounds and in disregard of the evidence and the law applicable thereto.

The judgment should be reversed and a new trial granted.

Judgment and order reversed and new trial ordered, costs to abide event.

Barker, P. J.; Haight and Bradley, JJ., concur.  