
    Frank Manfredi, Respondent, v. Morris Wiederman et al., Appellants.
    (New York Common Pleas
    Additional General Term,
    November, 1895.)
    Where the answer of title in a District Court is in proper form a retention • by the justice of the undertaking is sufficient to oust him of jurisdiction. An allegation that the defendants are the owners in fee of the premises at - the time of the alleged trespass is sufficient to raise the question of title-to real property.
    Appeal from a judgment rendered in favor of the plaintiff, by the justice of the Eighth Judicial District Court.
    
      Eugene Sondheim, for appellants.
    
      James F. Higgins, for respondent.
   Bischoff, J.

To an action for damages, arising out of trespass by the defendants upon certain premises of which plaintiff was the occupant, an answer of title was interposed, and an undertaking given as required by sections 2951 and 2953-of the Code of Civil Procedure.

Ho objection to .the sureties was made, and the justice-retained the undertaking, but refused to discontinue the action, which refusal forms the appellants’ chief grievance-upon this appeal.

If the answer was in proper form the justice’s retention of" the undertaking sufficed to oust him of jurisdiction (Harding v. Ellston, 19 Civ. Proc. Rep. 252; Code Civ. Proc. § 2954 Consol. Act, § 1286, subd. 1), and, therefore, the judgment, must be reversed if compliance with'section 2954 of the Code,, as to the form of pleading, is disclosed.

The defendant is required by that section to set forth in. his answer “ facts showing that title to real property will come in question,” and “ title ” in- this connection means “ right of' possession.” Dunster v. Kelly, 110 N. Y. 561; Heintz v. Dellinger, 28 How. Pr. 39 ; Ehle v. Quackenboss, 6 Hill, 53Y..

The “ right of possession ” was certainly a material question in this action, and there being an allegation that defendants. were the “ owners in fee ” $f the premises at the time of the alleged trespass, the answer sufficiently raised an issue of “title” without further particularity as to surrounding circumstances. Abb. Trial Brief on Pleadings, §§ 356, 956, and cases cited.

It results that the judgment must be reversed, with costs, and the cause remanded to the court below for removal into the Supreme Court,

Giegeeich, J., concurs.

Judgment reversed, with costs, and cause remanded to the court below for removal to the Supreme Court.  