Charles A. Langdon, Respondent, v. Rosealgine A. Guy, Appellant

Charles A. Langdon, Respondent, v. Rosealgine A. Guy, Appellant. (Argued January 30, 1883 ; decided February 9, 1883.) This was an appeal from an order of General Term affirming an order of Special Term, which directed a readjustment of plaintiff’s costs and an allowance of full costs on the ground that the title to lands was put in issue by the pleadings. The action was for assault and battery. The complaint alleged that “ defendant wrongfully and unlawfully entered upon the premises of the plaintiff and into his dwelling-house,” and there committed the assault and battery complained of. The defendant’s answer was: First, a general denial; Second, an averment that Henry D. Langdon owned the premises; that plaintiff wrongfully and unlawfully entered the house and assaulted said Langdon, and thereupon defendant, the servant of said Langdon, under his orders, resisted the assault and removed plaintiff from the house; and Third, that defendant was deputy sheriff, and as such in defense of said Langdon, and in resisting an assault upon him by defendant, removed him from the house as aforesaid, which was the act complained of. Plaintiff recovered a judgment for $25, and his costs were taxed at that sum. The court here say: “We think title to land is not brought in question by the pleadings. No injury to the freehold is alleged in the complaint, nor are damages claimed for entering upon the premises. The injury for which indemnity is sought was to the person, and the defense set up was that the acts complained of were committed in defense of certain parties, who, being first assaulted by the plaintiff, requested the assistance of the defendant, as their servant. Upon the face of the papers nothing more appears than a simple assault and battery, and justification, and as no certificate was given that the title to lands came in question upon the trial, and the recovery was less than $50, we think the plaintiff was entitled to no more costs than damages. (Code, § 3228, sub. 1 and 3.) It is true the complaint alleges that the defendant wrongfully entered the plaintiff’s grounds and house and there committed the assault, and the answer, besides a general denial, avers that one Henry D. Langdon was the owner of the house, but these allegations seem mere matters of description, and not facts upon which the right of either party depends. The violence of neither was exerted to obtain or defend possession or title.” L. H. Forthrup for appellant. U. O. Petáis for respondent. [MAJORITY — Danforth, J.,] Danforth, J., reads for reversal of orders of General and Special Term and for denial of motion. All concur. Ordered accordingly.