Mr. Justice Terry concurred.
This was an action in the Court below for damages for flooding a mining claim with water. The jury found a verdict of fifty dollars and costs for the plaintiff. All the errors are waived by the appellants, except as to the judgment for costs.
By the 498th section of the Practice Act, it is provided that no costs shall be allowed in an action for money or damages, when the plaintiff recovers less than §200. The recovery spoken of means the damages assessed by the jury eo nomine, exclusive of the costs which they may arbitrarily find. Van Horne v. Petrie et al, 2 Caine’s Repts., p. 213, and The Supervisors of Onondaga v. Briggs, 3 Denio, p. 173. Costs are an incident to the judgment, to be taxed by the clerk or Court, and cannot he given by the jury by way of damages.
So much of the judgment of the Court below, as allows costs to the plaintiffs, is reversed, and the Court is directed to modify it in conformity with this opinion.