The action was for injuries received by the wife from a dog belonging to the defendant. The answer, after specifically denying all the allegations in the complaint, including the averment that the defendant owned the dog, admits that the" wife was bitten by the dog in the yard where he was i kept. It then alleges that the person bitten had no right in the' yard in question.
The jury rendered a verdict of $45. The parties appeared before one of the judges, I suppose by consent, to take his *576opinion upon the right of the plaintiffs to recover costs. From the judge’s certificate, I conclude that he awarded costs to the defendant upon the ground that the recovery against him amounted to less than $50, and decided that title to land did not come in question.
I cannot avoid condemning' this mode of submitting a question to a judge upon mere oral statements and then appealing to the general term, when it is impossible to present before the court, the motion as it was submitted "to the judge at special term. If counsel do not prepare their motions at the special term so that all that was submitted to the judge can be brought up on appeal, it must not be expected that the general term will sustain the appeal. It is neither just to the judge who makes the decision, nor to the parties themselves, to appeal from motions heard in this way.
I have looked into the pleadings submitted on this appeal, and can see nothing to warrant the conclusion that the title to land is put in issue by them. The allegation that the person bitten was in a yard where she had no right, does not raise a question as to the title. It had no proper place in the answer. It was no excuse to the defendant that the plaintiff went into a yard which did not belong to her and was there bitten. The defendant is as well liable if he keeps a dog on his own premises and suffers him to be loose, as if the dog was at the time in the highway. The place and other circumstances may be referred to on the question of damages, but no issue can arise upon it.
There is among the papers submitted no order of a judge directing or refusing costs, no certificate of title coming in question, nor any other paper which can be the subject of appeal, and we are somewhat at a loss to know what it is that forms the basis of the appeal. We have expressed above an opinion as to the pleadings, that nothing contained therein entitles the plaintiffs to recover costs upon the ground that the title to land was in question; yet, there is no propriety in obtaining from a judge at special term, as has been done in this case, an order directing that a question as to the right of a *577party to costs be heard at a general term, unless it has first been heard and decided at the special term. If an order allowing costs was entered below, and this was intended as an appeal therefrom, it might be sufficient to say that the order is not before us.
The plaintiffs are not entitled to full costs. The appeal, if any, is dismissed without costs.
Ordered accordingly.