
    SUPREME COURT.
    Siphorus Gates, respondent, agt. Milo Canfield, appellant.
    
      (lode of Oml Procedure, section 3335— Oonstruction of this section— Who entitled to costs—What is the trial of an issue of fact within the meaning of this section.
    
    Where the plaintiff commenced an action against the defendant in á justice’s court, for a trespass on lands, and the same having been 'discontinued. by a nlea of title, the plaintiff brought the present action.in. this court for the same cause, and the like defense was interposed here. The plea of title was accompanied in eabh court by a general denial. At the trial at the circuit, the plaintiff gave no evidence tending to the trespass alleged in the complaint, and thereupon the court, on motion of the defendant dismissed the complaint, no evidence whatever having been offered by the defendant:
    
      Held, that the trial at the circuit was not the trial of an issue of fact, within the meaning of section 3235 of the Code of Civil Procedure, and the case is not within the exception made by this section, and the defendant and not the plaintiff is entitled to costs.
    
      Fourth Department, General Term, October, 1882.
    
      Before Smith, P. J., Hardin and Haight, JJ.
    
    Appeal from an order of the Steuben Special Term, denying a motion to set aside a taxation of costs for the plaintiff, and to direct the clerk to tax costs for the defendant.
    The complaint in this action is for a single act of trespass alleged to have been committed by the defendant on the 22d day of April, 1880, upon lands situated in the town of Fremont, Steuben county, Hew York. . The answer is a general denial, alleges that the defendant is the owner in fee of the lands described in the complaint. The' defendant had the right to assert his ownership in fee, in answer to plaintiff’s allegation of possession, and was not bound to a simple issue of possession, which determined nothing to the parties of any consequence. The important issue upon which the defendant relied, and desired to have determined, and which he was prepared to try, was that of title, to the locus in quo, and had •the plaintiff given any evidence, tending to prove the alleged trespass, or any trespass, alleged in his complaint, the defendant for answer was prepared to give evidence of his title. The trial judge held that the plaintiff had given no evidence 'tending to prove the act of trespass alleged in the complaint, -or any trespass having been committed by the defendant, prior to the commencement of this action, and that the plain* stiff had made no issue which defendant was called to answer. There being no issue of fact, the judge, as matter of law, dismissed the complaint. The effect of this decision precluded the defendant from giving his proofs. This result was unavoidable under the circumstances, and this question is one to be answered in determining which party is entitled to costs.
    
      Holliday & Bingham, for appellants.
    I. The defendant in this action is entitled to recover costs in his favor against the plaintiff. Section 3235 of the Code of Civil Procedure provides that the party in whose favor ■final judgment is rendered is entitled to costs; except where final judgment is rendered 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.” This section takes the place of sections 60 and 61 of the old Code, and is evidently not intended to change the rule there provided. Section 61 provided as follows: If the judgment in the supreme court be for the plaintiff, he shall recover costs. If it be for the defendant, he shall recover costs; except that upon a verdict he shall pay costs, to the plaintiff, unless the judge certify, &c. Changing the words “ upon a verdict,” and substituting “ upon the trial of an issue of fact,” was evidently intended to cover a case where trial was by court or referee, and only contemplated the recovery by plaintiff when the decision was against him,, in cases where a trial on the merits took place, and it was found no question of title was necessary for the defendant’s defense. A trial of a cause of action, brought to a close by a motion for a nonsuit, is not the trial of a question of fact. What is a nonsuit ? It is the relinquishment of a cause of action on the part of the plaintiff at the trial, either voluntarily or by order of the court; a failure to follow up a cause. An order or award of the court granted at the trial compelling the plaintiff to abandon the further prosecution of the action (Burrill's Law Dic. 2d vol., p. 755). The plaintiff may submit to a nonsuit voluntarily, or may be ordered to do so by tlie court. The construction contended for by the plaintiff’s Attorney would render the trial of an issue in the supreme court a mere trap. The' plaintiff might bring his action in such a case, and under such circumstances as to compel a defendant to plead title, and in a case where, if the trial of an issue of fact was actually tried, he could show the title did come in question, the plaintiff will have it in his power, at all times, to obtain a bill of costs, and be substantially successful by simply submitting to a nonsuit. He may call a witness and ask, “ Where do you live?” and then say, “ I rest,” and upon a nonsuit claim a bill of costs, which is usually the principal bone of contention in these cases. In this case there has been no “ trial of an issue of fact,” within the meaning of this section. Ho evidence has been given to establish the cause of action set out in the complaint, or any trespass before the beginning of the action. The defendant, by reason of this omission, has not given any evidence, and could, not. The judgment of nonsuit is no bar to a subsequent suit for the same cause of action (Audaubon agt. Excelsior Ins. Co., 27 N. Y., 216). The dismissal of the complaint is equivalent to a nonsuit (6 How., 618; 26 How., 15; 33 Barb., 357), Hence it is not, within the meaning of section 3235, a final judgment. That section being evidently intended to apply-to-a case where a real issue of fact is actually tried. The order - that the plaintiff be nonsuited passes on no question of fact, and is made upon the.ground that there is no question of fact to be passed upon ; hence there has been no trial of an issue of fact.
    II. The ■ order at special term should be reversed and an order entered directing the clerk of Steuben county to tax and adjust the- defendant’s costs and disbursements in this action.
    
      J. H. & C. W. Stevens, for respondent.
   Smith, P. J.

The plaintiff commenced an action against the defendant in a justice’s court for trespass on lands; and the same having been discontinued by a plea of title the plaintiff brought the present action in this court for the same cause, and the like defense was interposed here. The plea of title was accompanied in each court by a general denial. At the trial at the circuit the plaintiff gave no evidence tending to prove the trespass alleged in the complaint, and thereupoh - the court, on motion of the defendant; dismissed the complaint, no evidence whatever having been offered by the defendant. Upon these facts the plaintiff claims that he is entitled to costs and that the defendant is not, and the special - term has so held. The only question is whether that position is correct.

The question depends upon the construction to be given to certain words contained in section 3235 of the Code of Civil ’ Procedure. So much of that section as is material to the question is as follows: Section 3235. i( Where an action is brought before a justice of the peace * * * and has been discontinued as prescribed by law upon the delivery of an answer showing that title to real property will come in question, and a new action for the same cause has been commenced ' in the proper court, the party in whose favor final judgment is rendered in the new action is entitled to costs, 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.” Of course in this case there has been no such certificate. The question comes down to this: Was the trial at the circuit the trial of an issue of fact within the meaning of ■ the section above transcribed ? True, issues of fact had been joined by the pleadings, and such issues had been noticed and placed on the calendar and moved for trial, so that probably the party recovering costs of the action would be entitled to fee given for the trial of an issue of fact by section 3251 of the Code. But those considerations do not determine the present question, for when the plaintiff’s evidence was out it was apparent that there was no issue of fact to be tried, and the presiding judge, thereupon, withheld the case from the jury and disposed of it upon a question of law. The defendant’s motion to dismiss the' complaint for the want of evidence to support it was analogous to a demurrer to the evidence; and as the motion prevailed the case was disposed of upon an issue of law without any issue of fact being tried. Section 3235 of the present Code is a substitute for section 61 of the Code of Procedure. That section provided as follows: If the judgment in the supreme court be for the plaintiff he shall recover costs. If it be for the defendant he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff unless the judge certify,” &c.

We do not think the change of verbiage from the words “ upon a verdict ” to the words “ upon the trial of an issue of fact ” was intended to work the consequence contended for by the plaintiff, but it was designed' merely to include the case of a trial by the court or a referee as well as that of a trial by a jury. The construction contended for by the respondent is contrary to the general policy of the statute as to costs, and if adopted would enable the plaintiff in every like case to work a fraud on the defendant by withholding his evidence at the trial of a new action.

If we are right in these views there has been no trial of an issue of fact within the meaning of the statute under consideration, and consequently the case is "not within the exception made by the section, and the defendant and not the plaintiff is entitled to costs.

The order of the special term should be reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with ten dollars costs.

Hardin and Haight, JJ., concur.

So ordered.  