
    Saunders v. Goldthrite and another.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed July 1, 1886.)
    
    Practice—Discontinuance in justice court on plea of title—When DEFENDANT IS ENTITLED TO COSTS—CODE ClVIL PROCEDURE, § 3235.
    The plaintiff discontinued an action brought in justice’s court upon a plea of title being interposed by answer. Thereafter he t rought this action in the supreme court for the same cause, and the same defense was interposed. Upon the cause being reached on the calendar at the circuit, apd the plaintiff not appearing, the complaint was dismissed, with costs. Reid, that there was no “trial of an issue of fact,” and that it was not necessary in such cases to have the judge’s certificate that the title to real property came in question upon the trust; and that defendant was entitled to costs under section 3235 of the Code of Civil Procedure.
    Appeal by plaintiff from an order made by the Jefferson special term, February 13, 1886, denying plaintiff’s application to have defendants’ costs stricken from the judgment entered in this action.
    The action was originally commenced in justice’s court to recover in trover for the conversion of a quantity of hay. The defendants answered before the justice that the hay in question grew upon premises which formerly belonged to one Otis, under whom plaintiff claimed to hold possession. That before plaintiff obtained such possession the title had become vested in one Winslow as receiver of Otis, who had sold the hay to defendants.
    The defendants gave the undertaking required by the Code, § 2952.. Thereupon the action was discontinued before the justice and a new action commenced for the same cause in the supreme court. The defendants served an answer in accordance with their undertaking, setting up substantially the same defenses as the answer before the justice. Issue having been joined the cause was placed upon the calendar of the court and the plaintiff not appearing when it was reached, the complaint was dismissed, with costs upon his default.
    The defendants having entered judgment for costs the plaintiff applied at special term to have the costs stricken from the judgment, on the ground that plaintiff and not defendants was entitled to costs, and because the certificate of the judge presiding at the trial, as required by Code Civil Procedure, • § 3248, was not presented to the clerk on the taxation of the costs or for a retaxation thereof. The court flfinip.rl the application to have the defendants’ costs stricken from the judgement but directed a retaxation and that certain items of disbursements be stricken out by the clerk.
    From this order plaintiff appeals.
    
      
      A. F. & T. F. Saunders, for appellant.
    
      O'Brien, Emerson & Ward, for respondent.
   Boardman, J.

In this action, originally brought in justices’ court, a plea of title was interposed by defendant, so that the justice was ousted of jurisdiction. The plaintiff thereupon began this action in the supreme court for the same cause of action and the same defense was interposed! After issue was so joined the cause was placed upon the calendar at the circuit, and the plaintiff not appearing when it was reached, the complaint was dismissed, with costs, by reason of such default.

A motion to set aside the judgment for costs in favor of the defendant and for a retaxation of costs was made by plaintiff. The costs were readjusted, but the court refused to set aside the judgment. An appeal is taken from such order, and the plaintiff contends that he is entitled to costs under section" 3235 of the Code of Civil Procedure, because it has not been certified that the title to real property came in question upon the trial.

The claim of the plaintiff must be rejected upon reason as well as authority. If sustained, it would work gross injustice upon the defendant in similar cases. The defendant could not compel the trial of the issue of fact, and hence he would be punished by a judgment for costs whenever the plaintiff saw fit to suffer a default. No such injustice could have been intended. The precise question, however, is settled by authority in Gates v. Canfield (23 Hun, 12), wherein the learned presiding justice construes the above section of the Code, and in precisely such a case holds that the defendant is entitled to recover costs. We accept his views' as just and satisfactory.

No other question is presented by appellant’s brief.

The order is affirmed, with ten dollars costs and printing disbursements.

Hardin and Follett, JJ., concur.  