Kirk v. Blashfield

By the Court. The plaintiff commenced an action in a justice’s court. The defendant objected to the jurisdiction on the ground that the accounts between the parties exceeded $400. The justice, after first overruling the objection, finally dismissed the action upon that same ground. The plaintiff then sued in this court, and recovered $38.50. On a motion at special term he was allowed costs. An appeal is taken from the judgment.

It is admitted that the justice was in error in his decision. But *510’ no appeal was taken from it, and it should be held conclusive on the parties. If an appeal had been taken, and thereupon the same decision had been made in this court, there would be no doubt that the matter would have been res adjudicata.

As the plaintiff rested satisfied with the decision which was made by the justice, and as that was made on the defendant’s objection, it must be taken as the settled rule of this present case. The special term was right in granting costs.

We have examined the question raised as to this order, because it has been argued by the parties. But, as a matter of practice, the defendant should have appealed from the order of the special term, granting the plaintiff costs, and not from the judgment. This case ’is therefore not to be considered a precedent as to the manner of reviewing such orders.

The judgment is affirmed.

Judgment affirmed.