
    Gordon Peck, Plaintiff, v. The Haverstraw Water Supply Company, Defendant.
    (Supreme Court,
    Orange Special Term, June, 1913.)
    Costs — in action to recover real property — damages for unlawfully withholding possession of real property.
    Where, in an action to recover real property and damages for withholding same, plaintiff recovers judgment for the possession of the property and for six cents damages for the unlawful withholding of the same, defendant, who also recovered a verdict of six cents damages on a counterclaim for unlawful interference with its easement to maintain water-mains in the public highway adjacent to the premises sought to be recovered, is not entitled to costs, plaintiff having succeeded in the action.
    Action to recover possession of real property and for damages for withholding the same.
    
      A. H. F. Seeger, for plaintiff.
    Martin A. Driscoll, for defendant.
   Tompkins, J.

The plaintiff brought this action to recover possession of the real property described in the complaint, and for damages for the withholding of the same by the defendant. The answer set up a counterclaim for $1,500 damages for unlawful interference with its easement to maintain water-mains in the public highway adjacent to the said premises, which the plaintiff sought to recover.

At the trial, a verdict was rendered in favor of the plaintiff, awarding him the possession of the property described in the complaint, and for six cents damages for the unlawful withholding of the same by the defendant; and a verdict was also rendered in favor of the defendant against the plaintiff, upon the said counterclaim, for the sum of six cents damages. Both parties have entered judgment in accordance with the verdict, the defendant including in its judgment a full bill of costs against the plaintiff, which has been taxed by the county clerk.

This is a motion made by the plaintiff to modify the judgment entered in the defendant’s favor against the plaintiff, by striking therefrom the provision for costs; and the question now presented is whether the defendant, having recovered a verdict for six cents damages against the plaintiff, upon it's said counterclaim, is entitled to tax and include in the judgment a bill of costs against the plaintiff.

The plaintiff having succeeded in the action, which was to recover real property, is entitled, under subdivision one of section 3228 of the Code, to costs against the defendant as a matter of right; and section 503 of the Code, which provides that: “ Where a counterclaim is established, which equals the plaintiff’s demand, the judgment must be in favor of the defendant,” does not give defendant a right to costs, because the counterclaim established by the defendant did not equal the plaintiff’s demand, that having been not only for damages, but for the recovery and possession of the real property. The defendant’s recovery was for six cents damages only, and did not equal the plaintiff’s demand, nor did it equal the verdict awarded to the plaintiff, which was for the recovery of the land, as well as for damages.

Section 3229 of the Code provides that the defendant is entitled to costs as a matter of course, upon the rendering of a final judgment in an action specified in section 3228, unless the plaintiff is entitled to costs as therein prescribed, and the plaintiff in this action being entitled to costs, under subdivision 1 of section 3228, it follows that the defendant cannot have costs against the plaintiff.

Section 3234 provides: “ In an action specified in section 3228 of this act, wherein the plaintiff sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issnes, and the defendant upon the other or others, each party is entitled to costs against the adverse party. ” Under that section, the defendant is not entitled to costs, for the reason that the complaint did not set “ forth separately two or more causes of action, upon which issues of fact are joined.” Here there was only one cause of action, upon which the plaintiff recovered against the defendant, which, under subdivision one of section 3228, entitles him to costs against the defendant.

I can find no authority for costs in favor of the defendant against the plaintiff. It follows therefore that the plaintiff is entitled to have the defendant’s costs retaxed, and disallowed, and the judgment modified by striking therefrom the award of costs against the 'plaintiff.

Ordered accordingly.  