Leigh v. Westervelt.

fendants, in the exercise of their discretion, and that discretion. cannot be made subservient, or subordinate to, the discretion of the courts. The court cannot restrain them from granting any licenses, for the simple reason that while courts, acting within the scope of these powers, enforce the law, they do so by acting in obedience to it, and not by assuming an authority paramount to it. The statute declares, that they may grant licenses, and that authority the courts cannot abrogate or restrain.

The court cannot interfere under the idea that the license system is a nuisance; whatever is permitted by a statute which the legislature is constitutionally competent to enact, is not, in judgment of law, a nuisance.

With the wisdom or expediency of a law, the courts have nothing to do. They are bound to administer the laws as they find them; and would be derelict in duty if they failed to do so in any case, on the ground that they deemed them unwise and inexpedient; nor are they at liberty to arrest the action of public officers, charged by statute with a public trust, and authorized to act according to their judgment and discretion, because the courts may think the statute conferring the authority pernicious in its consequences, and one that ought to be modified or repealed.

If the acts under which licenses are granted, are violated, the offenders subject themselves to a penalty, also to fine and imprisonment (§ 2, id.).

The injurious consequences alleged to result from the system and licenses granted, so far as the complaint shows, produce no pecuniary injury to the plaintiffs, differing in its character from that inflicted on every resident and tax-payer of the ninth ward. It is, of itself, a reason why the court could not interfere at the suit of an individual, to restrain a nuisance, when there is no ground for interfering, except that which is common to all the inhabitants of the ward.

While the statute continues in force, the only remedy any citizen has is to prosecute, when such cases occur, for a violation of duty in granting licenses, or for violations of the provisions of the act, by those to whom licenses inay be granted.

I consider it entirely clear, that the court has no jurisdiction

Smith v. Riggs.

in the matter. The motion must therefore be denied, with ten dollars costs,

Culver & Parker, for plaintiffs.

R. J. Dillon, for defendants.

Approved, on consultation.

SMITH V. RIGGS.

The question of title to lands is, in all cases, a question of ownership.

The question does not arise in an action to recover damages for the breach of an agreement to convey lands, when the only issue made by the pleadings is, whether an inchoate right of dower in the wife of the defendant was a subsisting encumbrance.

In such an action, if the plaintiff recovers only nominal damages, the defendant is entitled to full costs.

(General Term. Before OAKLEY, Ch. J., DUER, CAMPBELL, and BOSWORTH, JJ,) May, 1853.

THIS was an action to recover damages for the breach of a covenant, by which the defendant bound himself to convey to the plaintiff, on or before a certain day, a house and lot in the city of New York, "by a good and sufficient deed, free from encumbrances." The cause was tried before Mr. Justice DUER, at special term, by the consent of the parties, without a jury.

It was proved that the defendant had tendered to the plaintiff, on the day mentioned in the agreement, a conveyance in fee of the house and lot in question, and that the plaintiff had refused to accept the deed, on the ground, that it was not signed and acknowledged by the defendant's wife, so as to bar her dower. The court held, that he was justified in this refusal, and that the defendant, by not having procured and tendered a release of dower, had broken his covenant; but as it appeared that the sum, which the plaintiff had agreed to pay for the

Smith v. Riggs.

house and lot exceeded its market value, a judgment was rendered in his favor for only six cents damages. The propriety of the decision was not disputed, but the question which arose upon this appeal, was to which of the parties costs should be allowed. The judge, at special term, had affirmed the decision of the clerk, allowing full costs to the defendants, and the plaintiff appealed from the order.

G. Clarke, for the plaintiff, insisted on the following points.

I. The complaint alleges, that defendant was seized of the house and lot; that he contracted to sell to the plaintiff, and to give him a title free of encumbrance; and that the title offered was not a good and valid title, free of encumbrance, but on the contrary was defective. These positions were controverted by the defendant, and thus an issue was raised involving a question of title, and one which a justice of the peace could not try. Therefore, under section 304 of the Code, the plaintiff is entitled to costs.

II. If the plaintiff is not absolutely entitled to costs as of course under section 304, then it is a case coming within section 306, where the giving of costs is discretionary with the court, 1. It was an equity cause of action, and the plaintiff could have proceeded in equity to enforce performance of the contract (see note to section 306 of the Code); and had he done so, he would of course have been entitled to costs, as the court has decided the question of law in his favor. 2. If then he would have been absolutely entitled to costs if he had pursued that course, will not the court in the exercise of its discretion give the plaintiff costs when he has pursued the other course allowed by the law, on the same state of facts that would have given him costs in an equity suit? I cannot see why a court of law should deprive the plaintiff of costs, when, if he had proceeded before the same court in equity, on the same state of facts, he would have recovered costs, as of course. 3. The defendant was the party in fault; he broke his contract; the court has so decided, and nothing prevented the court from giving the damages claimed but the peculiar agreement made by the plaintiff with a third party. This ought not to avail the defendant, to screen

Smith v. Riggs.

him from costs. That circumstance did not render his conduct less objectionable. He and his wife evidently acted in bad faith; and they made use of a mere contrivance to avoid the fulfilment of the agreement. The plaintiff, therefore, on every consideration, is entitled to the exercise of the discretion of the court in his favor, as to the costs.

T. B. Scoles, for the defendant.

I. The defendant is entitled to costs, as a matter of course, by sections 304 and 305 of the Code of Procedure. This was an action for the recovery of money, where the plaintiff did not recover fifty dollars. It was a common law action for dam ages, not an equity suit for a specific performance. There was no prayer for alternate relief. The plaintiff did not even demand judgment for damages generally, but for a special and specific injury only, of which he gave no proof. In a common law action for damages, there is no judicial discretion as to costs. The matter is fixed by statute.

II. No question of title to land is presented by the pleadings, or came up on the trial. It was admitted by the pleadings that the defendant had title to the land; that his wife was dowerable; and that no release of dower was tendered to the plaintiff. The only questions raised, were, whether the plaintiff had performed the contract of sale on his part; if so, whether the defendant had performed it on his, and if he had not, what damage had the plaintiff proved. The defendant's title to the land was not at all in dispute; neither directly nor collaterally.

III. A justice of the peace could have tried this action just as he could any other action for an alleged breach of contract, for the simple reason, that no title to land came in question. He could construe the agreement, and assess the damages. There was nothing to oust him of jurisdiction. Had the plaintiff been willing to take his chance of recovering one hundred dollars or less, he might have tried this case in a justice's court as well as in any higher court. He claimed heavier damages, and went into a higher court: therefore he assumed the risk of costs, if he failed to recover an amount sufficient to carry costs in that court.

Smith v. Riggs.

IV. Actions of this kind have frequently been brought, and nominal damages given; and it never was pretended before that the plaintiff was entitled to costs on the ground that the title to land came in question. In examining the various decisions upon the point, what constitutes a claim of title, not a single case will be found, in which it was contended, that in an action like this for a breach of contract of sale of land, title came in question. The absence of any such precedent, is all but conclusive against the plaintiff. In many cases where the title much more nearly came in question than in a case like the present, it has been decided, that title did not come in question. We refer to a few of them in illustration of the principle. "An answer setting up an entry and claim to land under a contract for sale, does not constitute a claim of title." (Doolittle v. Eddy, 7 Barb. S. C. R. 75.) "Title does not come in question where the defendant admits title, and claims under a contract." (O'Reilly v. Davies, 4 Sandf. S. C. R. 722.) "Where the plaintiff offered to show title, which was not done because admitted by the defendant, title did not come in question." (Brown v. Myors et al., 7 Wend. 495.) "Where a plea of liberum tenementum had been put in, yet where the title was admitted so that an inquiry into the title was unnecessary, title did not come in question." (La Farge v. Eames, 1 Wend. 100.) "Even in trespass quare clausum fregit, where a license to cross the plaintiff's land was the subject of controversy at the trial, upon which there was conflicting evidence, it was decided that title did not come in question." (Ex parte Coburn, 1 Cow. 578; 3 Johns. A. 450.) "An issue on a license to do or act on real estate, which would otherwise be a trespass, is not a claim of title." (Launitz v. Barnum, 4 Sand. S. C. R. 637; 18 Wend. 579.)

BY THE COURT.-This is plainly an action at common law, in which the allowance of costs does not rest at all in the discretion of the court. Under sections 304 and 305 of the Code, either the plaintiff, or the defendant, must be entitled to full costs, and, unless the question of title was involved, they must be given to the defendant.

It is not necessary to affirm, that in an action like the present, D.-II.

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