
    John Leprell and Theresa Leprell, Resp’ts, v. Barbara Kleinschmidt, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23,1888.)
    
    
      1 Ejectment—When maintainable—Character of the injury—Projection OF THE EAVES OF A BUILDING.
    By the common law ejectment will not lie for anything whereon entry cannot be made or by which the. sheriff cannot give possession. The injury or wrong for which the action can be maintained must, in fact or in law, amount to an ouster or dispossession of the plaintiff. The projection of the eaves or gutters of a building over another’s land is not an entry upon which an action of ejectment can be based.
    .2 Same—Costs—Who entitled to—Construction of complaint—Code Crv. Pro., § 3228.
    The complaint alleged that the plaintiffs are the owners and are entitled to the immediate possession of a parcel of land, describing it by metes and bounds. It then alleges that the defendant is the owner of the premises next adjacent to the premises described. It then alleges that defendant has erected certain buildings, the eaves of which project over the division line between the premises of plaintiffs’ and defendant; that plaintiff now demands the removal of said eaves, as they are a great nuisance and damage to their property. The prayer for relief being that plaintiffs have judgment for the full possession of the premises entered upon, and for .damages and costs of the action. After trial the verdict of the jury was, “ that they find for the plaintiff, and say ‘that they find the true line to be, according to the Mann & Young survey, three-tenths of a foot north of the north face of the foundation wall of defendant’s house.” Reid, that upon this verdict the plaintiffs are not entitled to costs as against the defendant.
    
      Appeal from an order of the Erie county special term denying the defendant’s motion to set aside the taxation of a bill of costs taxed in the plaintiff’s favor at the sum of $137.15. The action was tried at the Erie circuit, and the costs were taxed on the plaintiff’s application before the entry of judgment upon the verdict.
    
      Baker & Schwartz, for app’lt; Frank Loomis, for resp’ts.
   Barker, P. J.

The question presented demands, that a construction be placed on the plaintiff’s complaint, as to the nature and character of the cause of action set forth therein. The plaintiff contends that the action is ejectment for the recovery of the possession of a parcel of land, and damages for its detention by the defendant. This is disputed by the defendant, who claims that the alleged cause of action is for trespass, and entitles the plaintiff to damages only. In defendant’s construction of the complaint, I concur.

The first averment is, that the plaintiffs are the owners, and are entitled to the immediate possession of a parcel of land, which is described by metes and bounds so that the same can be readily located. It is then alleged that the defendant is the owner of the premises next adjacent to, and south of the premises described. Thus it is plainly stated that the parties are adjacent land owners, the plaintiff’s south line being the defendant’s north boundary line. The tort charged upon the defendant, is founded on the facts alleged in a single paragraph of the complaint, as follows: “that during the year 1885, and before the commencement of this action, the said defendant, by her agent or agents, servant or servants, caused or suffered to be erected on the northerly line of her said property, three frame buildings, the first of which, the front building, projected about four and one-half inches, and the second and third buildings from about three inches to about fifteen inches over and on the said premises of the plaintiffs, and that the eaves of all said buildings projected therefrom, over the division line between the premises of the said plaintiffs and the said defendant, and on to the premises of the plaintiffs.” “ That at the time the said buildings were so erected as aforesaid, these plaintiffs protested against it, and have since demanded that the same be removed from off their said premises, and that said eaves be removed or shortened so as not to drop over thereon, but that the defendant refused, and still refuses, and neglects to so remove said buildings or shorten said eaves. That since the time the said buildings were so erected, they have never been removed, nor said eaves shortened, and have been, and are, a great nuisance and damage to the property of these plaintiffs.”

The prayer for relief is, that the plaintiff have judgment for the full possession of the premises entered upon by the said defendant as aforesaid, and for the sum of $500 damages and the costs' of the action. There is no direct averment of an entry by the defendant upon the lands and premises described in the complaint, or of any part thereof, or that she detains possession of the same from the plaintiffs. It cannot be determined by the papers before us, whether the action was tried at the circuit as one to recover the possession of lands, or for damages for a trespass thereon. A copy of the clerk’s minutes is set forth in the moving papers and the verdict of the jury as entered therein, is in the following words: “That they find for the plaintiff, and say, that they find the true line to be according to the Mann and Young survey, three-tenths of a foot north of the north face of the foundation wall of the defendant’s house.”

Upon this verdict the plaintiffs cannot enter judgment in their favor for the recovery of the whole or any part of the premises described in the complaint. From the verdict, read in connection with the allegation in the complaint, that the defendant erected buildings on the northerly line of her land, it is quite clear' that the defendant is not in the actual possession of any part of the premises described in the complaint.

The defendant by her answer expressly admits, that the plaintiffs were the owners in fee simple of the lands described and were entitled to the immediate posession thereof, but denied that either of the said buildings which the defendant erected projected upon or occupied any portion of the premises belonging to the plaintiffs, and ■ she also denied, that any part of the eaves in either of said buildings which she erected projected upon or over the division lines between the premises of the plaintiffs and the defendant as alleged in the complaint. On the issues thus joined, the most that can be claimed by the plaintiffs from the verdict is, that the jury have found that they aro the owners of the lands described and that the eaves of the buildings erected on the defendant’s lands project over the division line between the premises owned by the parties respectively. Therefore in any view that can be taken of the case, upon this verdict, the plaintiffs are not entitled to costs as against the defendant. It is well-settled that, if one erects buildings upon the linet of his own premises, so that the eaves or gutters project over the lands of his neighbor, this is not such an entry thereon, as will entitle the latter to maintain an action of ejectment. By the common law, ejectment will not lie for anything whereon entry cannot be made, or by which the sheriff cannot give possession. The injury or wrong for which the action can be maintained, must in fact or in law amount to an ouster • or dispossession of the plaintiff. Aiken & Ketchum v. Benedict, 39 Barb., 400; Vrooman v. Jackson, 6 Hun, 326.

As this is not an action to recover real property or any interest therein, the plaintiff is not entitled to costs under subdivision 1, of section 3,228 of the Code of Civil Procedure. Nor did the claim of title to real property arise upon the pleadings, nor is it certified that the same came in question upon the trial. Therefore, the plaintiff is not entitled to costs under the other provisions of the same section. Heintz v. Dellinger, 28 How. Pr., 39; Learn v. Currier, 15 Hun, 184; S. C. affirmed, 76 N. Y., 625.

The only question presented on this appeal is whether the plaintiff is entitled to costs upon the verdict, and we do not intimate the form or character of the judgment which the plaintiff is entitled to enter upon the verdict, if any.

The special finding that the division line is north of the foundation wall upon which the defendant’s buildings are erected, is inconsistent with the general verdict in the plaintiff’s favor, and is controlling and determines that the defendant is not in possession of any portion of the premises described in the complaint. Code, § 1188. Treating the action as one for a trespass upon lands, then it may be said that the jury have found that the defendant committed trespass as alleged, but they have not assessed the damages, and at the most the plaintiff could enter judgment only for nominal damages.

The order appealed from is reversed, with ten dollars costs and disbursements, and motion granted.

Haight, Bradley and Dwight, JJ., concur.  