It is clear that the plaintiff in this case ought to have had a verdict for nominal damages, notwithstanding the jury found against him on all the contested trespasses. But forty-five years ago, in Cady v. Fairchild and wife (18 Johns., 129), which was a case similar in its nature, and presenting the precise question involved in this, the Supreme Court of this State said: "This is strictly a verdict contrary to evidence; but as no more than nominal damages ought to have been given, no material injustice has been done; and we ought to apply the rule which has been settled in regard to new trials. In Barlow v. Thompson (2 Burr., 664), Lord MANSFIELD said, "it does not follow, by necessary consequence, *Page 353 that there must be a new trial granted in all cases whatever, where the verdict is contrary to evidence," as "where there is no real damage, and where the injury is so trivial as not to deserve above half a crown compensation;" and a new trial was denied in that case though it was admitted the verdict was directly contrary to evidence. Though there is ground for a distinction between granting a new trial and reversing a judgment on return to a certiorari, yet, where the object of the plaintiff in error is merely costs and to vex the defendant, we are justified in refusing to reverse the judgment. The judgment must, therefore, be affirmed."
Notwithstanding the criticism to which this decision may be exposed on grounds of principle, it cannot be doubted that for nearly half a century it has operated effectively to prevent useless litigation, where nothing was really involved but mere questions of costs. The General Term, by a divided court, have followed Cady v. Fairchild; but have sent the present case here doubtless with a view to a final adjudication whether the rule of that case shall continue to be followed as the law of the State. In my judgment, the rule adopted by Cady v. Fairchild, as applied to justices' courts, is a salutary one to the public interests, and not really prejudicial in its effects to the best interests of litigants in those courts, and ought, therefore, to be adhered to on the ground of stare decisis.
The cases cited by the appellant's counsel are not in conflict with the rule. They are cases in which an error of the court crept in to control the verdict, or in which some question of permanent right was involved, as in Herrick v. Stone (5 Wend., 586); or in which the plaintiff, upon undisputed evidence, was entitled to a verdict for damages, to be assessed upon testimony showing the injuries sustained by breach of contract, as in Rathbone v. Stanton (6 Barb., 144); or for the the value of property destroyed, as in Fish v. Skut (21 Barb., 333).
In Wiley v. Slater (22 Barb., 106), the plaintiff recovered a verdict for $25, and the Supreme Court reversed the judgment on the ground that there was no evidence to show any *Page 354 legal right in the plaintiff to recover any verdict. Neither of these cases can be said to have disturbed the rule in Cady v.Fairchild.
I think the judgment in this case should be affirmed.
All the judges concurring, the judgment was affirmed. *Page 355