
    John Shaffer, Respondent, v. Anna Shaffer and Philo Shaffer, Appellants.
    Fourth Department,
    January 10, 1906.
    Costs—when defendant entitled to costs in action for trespass on non-suit of plaintiff.
    When an action in a Justice’s Court for trespass has been discontinued on the ground that the title to real property is involved, and in a subsequent action a nonsuit is granted on the failure of the plaintiff to show any trespass, the defendant is entitled to costs. As the plaintiff has failed to establish a case, .there has been no trial of an issue of fact ” as contemplated by section 3335 of the Code of Civil Procedure.
    Appeal by the defendants, Anna Shaffer and another, from an order of the County Court of Cattaraugus county, entered in the office of the clerk of said county on the 14th day of ¡November, 1905.
    The plaintiff commenced an action for trespass in Justice’s Court. The defendants interposed an answer in due form, setting forth, among other defenses, facts showing that the title to real property would come in question upon the trial, and delivered to the justice an undertaking conformably to section 2952 of the Code of Civil Procedure, and the action was thereupon discontinued.' Subsequently the present action was commenced for the same cause, and the defendants answered.
    Upon the trial the plaintiff failed to show any trespass by the defendants, and, at the suggestion of the trial judge, a motion for nonsuit was made and granted. Each side appeared before the clerk upon the taxation of cysts and they were taxed for the defendants and judgment therefor upon the nonsuit was entered. The County Court • ordered a retaxation of the costs in favor of the . plaintiff and disallowed the taxation made by the clerk in favor of the defendants and the- appeal is from the order of that court.
    
      Henry' Donnelly, for the appellants.
    
      M. D. Jewell and Frank J. Shaffer, for the respondent.
   Spring, J. :

We do not-agree with'the learned county, judge. Section 3235 . of the Code of- Civil Procedure regulates the costs in the new. action-commenced after the discontinuance of thé one in Justice’s Court. It provides that “the party, in whose-favor final judgment is rendered in the new action, is entitled to' cost's; except that, where, final judgment- is. rendered therein,'in favor of the defendant, upon the trial of an issue of fact, the plaintiff is entitled to costs; unless : it is certified that the title to real property came in question on- the. trial.-” - ' ■

■ There' are, therefore, two contingencies provided for in this' section e— the first in harmony with the general rule that costs follow the final judgment. The se’cond, that the defendant, even though he may Succeed upon-the question of fact, is -not, entitled, to costs Unless he presents a certificate that title, to real property came in question on the trial. . Failing in this, the plaintiff is entitled 'to-costs, By the latter provision, if the. defendant ousts the justice of jurisdiction, he must prove on the trial of the. new- action that the title to the premises Is in controversy,, of pay the penalty by having the costs of the action imposed upon him if there is a. verdict or a trial o'f the question of fact.

In the present case the plaintiff had no cause of ,action at all. The defendants could not rely upon .the plaintiff failing to make a 'prima facie case. Their only safety was in alleging that- they, Or one of them, were the owners of the fee of the premises, if the. title to real property was really involved." The plaintiff, however, is not entitled to costs where the defendant -has succeeded unless -there has been a “trial- of an issue of fact.” There was-no issue of fact tried. ■ The casé did not raise an issue of that bind. As matter .of ■ Jaw he was defeated. He is in .the sa,me position as if - the-facts, actually proven had been stated by the counsel for the plaintiff in ' his opening address to the jury and a dismissal had been- made thereoa. A trial fee would have been allowed, but no issue of fact would have been tried. A judgment of non-suit upon an appeal involves purely and simply a question of law, and is no bar to another action for the same cause of action alleged in the complaint. The issues of fact signified by the provisions of the Code imply a controversy involving conflicting evidence.

The authorities support this contention. In Gates v. Canfield (28 Hun, 12) the question was trespass in Justice’s Court, and a plea of title was interposed, the action discontinued and a new action for the same cause commenced in Supreme Court. The printed record in that case shows that testimony was given on behalf of the plaintiff upon the trial but not of the trespass alleged. A nonsuit was granted and a certificate given by the trial .judge that the title to real property did not come in question on the trial. Costs were taxed for plaintiff by the clerk, and the Special Term declined to' set aside the taxation. Upon appeal to the General Term the order of the Special Term was reversed and defendant’s motion for taxation of costs was granted. The court held distinctly that although testimony was given for the plaintiff, there was no trial of an issue of fact. This case has been followed in Saunders v. Goldthrite (41 Hun, 242) and Taylor v. Wright (36 App. Div. 568).

Any other rule would work manifest injustice. The plaintiff, if not ready for trial or doubtful of success, might conclude to give no testimony or insufficient to make a case, and upon a nonsuit or dismissal of the Complaint recover his costs against the defendant, and at a more opportune time make another experiment. Failure to establish his cause of action in every instance might be equivalent to a victory and certainly preferable to running the risk of a verdict in a doubtfiil action. As.there was no question of fact involved, the general rule set forth in the section quoted applies, that the party in whose favor final judgment is rendered is entitled to costs.

All concurred; Hiscock, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion of plaintiff for retaxation of costs denied, with ten dollars costs.  