#### Hannah L. Smith, Resp’t, *v.*John Bingham, App’lt.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

1. New tbial-t-When will be gbanted.

Where the admitted acts of the defendant are such that plaintiff’s action should not he called vexatious, and the verdict in defendant’s favor is groundless, a new trial may he granted, even though plaintiff may he entitled to only nominal damages

2, Tbespass—Evidence.

Inan'actionfor trespass where no undertaking pursuant to § 2952 of tne Code is given, and the question is simply one of possession, evidence as to the extent of occupancy by prior occupants of defendant’s premises is immaterial.

Appeal from a judgment of the county court of Otsego county, entered December 23, 1887, reversing a judgment of a justice’s court entered May 14, 1887, upon the verdict of a jury against the plaintiff of no cause of action.

Action for trespass upon lands in possession of plaintiff. Defense, general denial and that the defendant was the owner of a portion of the premises upon which trespasses as claimed by plaintiff were committed. Ho undertaking was given as required by § 2952 of the Code Civ. Pro.

*A. P.*Barber, for app’lt; *Charles A.*Bourne, for resp’t.

Merwin, J.

It seems to be conceded by the counsel of the defendant that the plaintiff was entitled to a verdict for nominal damages, but it is said that a new trial should not have been granted on that ground, under the rule laid down in *Stephens*v. Wider, 32 N. Y., 351. That was an action brought before a justice to recover damages for trespasses committed by defendant’s cattle on plaintiff’s lands. Some of the acts were disputed and some not, but as to the undisputed' trespasses there was no proof of damages given that would have justified the jiu-y in giving more than nominal damages. The jury gave a verdict for the defendant and this was sustained by the court of appeals, the theory being adopted by the court that where the object of the plaintiff is merely costs and to vex the defendant, the appellate court is justified in refusing to reverse the judgment. There are some exceptions to this rule. They are referred to in *Countryman*v. *Light-hill,*24 Hun, 407, where the rule is stated by Justice J. C. Smith that a plaintiff may have a new trial or reverse an erroneous judgment, when a principle, or a right, or its extent is involved, although he is entitled to only nominal damages and the suit is vexatious. In that case a judgment for nominal damages was set .aside, it being said to be both groundless and vexatious.

*613In the present case, the admitted acts of the defendant were such that the plaintiff’s action should not be called vexatious and as the verdict in favor of the defendant was groundless the principle of the *Countryman*case would go towards sustaining the decision of the county court There is besides, in the case, uncontradicted evidence on the part of the plaintiff showing damages more than nominal, not to a large amount it is true, but such as the plaintiff would have a right to have considered.

The defendant occupied a store adjoining plaintiff’s lot The plaintiff claimed to occupy up to the store. This the defendant denied, and in his answer he set up that he owned a space of three feet beyond the store. As the defendant did not perfect his plea of title by giving :the proper undertaking, he was precluded from drawing the title in question. Code, § 2955. That left the question to be over the possession in fact during the time of the committing of the alleged trespasses. Upon this subject the defendant was allowed to give evidence of the extent of the occupancy of prior occupants of the store. This was not material on the issue to be tried, and its reception was likely to influence the jury. The rights of the plaintiff in regard to this evidence were preserved by objection and motion to strike out

The decision of the county court should not be disturbed. Judgment of the county court of Otsego county affirmed, with costs.

Hardin, P. J., and Martin, J., concur.