
    Louisa J. Bruen, Resp’t, v. The Manhattan Railway Company et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 1, 1891.)
    
    Oosts—Allowance on course—Title to land—Code Civ. Peo., § 8838.
    This action was brought for damages to real estate by the construction and operation of an elevated railroad upon tlie street on which plaintiff’s property abutted, she alleging that she was the owner in fee and entitled to an easement in the street, and defendant denying any knowledge or information sufficient to form a belief as to the allegations of ownership. Held, that a claim of title arose on the pleadings and came in question upon the trial, and plaintiff was entitled to costs under Code Civil Procedure, § 333d.
    Appeals by the defendant from two orders made at special term: (1) An order setting aside defendant’s bill of costs and allowing costs to plaintiff; and (2), an order denying a motion to set aside a certificate of the trial justice as to claim of title, granted under paragraph 3228 of the Code of Civil Procedure.
    This was an application by plaintiff for a certificate from the judge who tried this cause, that a claim of title to real estate came in question on the trial, in order that plaintiff might tax full costs under Code Civ. Pro., § 3228, she having recovered but six cents damages; also for an order setting aside costs as taxed by defendant. The action was to recover damages for injury to the ease-ments in Amity or West Third street, appurtenant to the plaintiff’s premises Mo. 118, in said street.
    The following opinion was written at special term:
    Daly, Ch. J. —The complaint alleged that the plaintiff was the owner in fee of the house and lot 118 West Third (formerly Amity) street, and the owner of an easement in the street, to have the same kept open as a public street, and alleges the construction and operation of the elevated railroad upon said street, and interference with plaintiff’s easements. The defendants deny any knowledge or information sufficient to form a belief as to the allegations of ownership. Upon the trial the plaintiff proved her title by deed to the premises in question, and the opening of Amity street as a public street.
    A claim of title arises upon the pleadings, and comes in question upon the trial of such an action as the present. The sole ground of plaintiff’s claim is the interference with easements in the public street appurtenant to the lot which she owns. She must prove title to the lot to recover, if there were a defect in her title to the lot to recover. In Dean v. Metropolitan El. R. R. Co., 119 N. Y., 540 ; 30 N. Y. State Rep., 81, a new trial was ordered for want of proof of title in the plaintiff. That, like the present, was an action at law, to recover damages caused by" the construction and maintenance of the elevated railroad in front of plaintiff’s premises. It was “ an action to recover for an injury in the nature of a trespass.” The question litigated was as to plaintiff’s title and possession. He gave in evidence a deed of the premises executed to him after the commencement of the action, and there being no other evidence of title the recovery was set aside. As it was necessary, therefore, for the plaintiff, in order to recover for the injury to his freehold to allege and prove his title, the question of title arose upon the pleadings. Kelly v. N. Y. & Man. B. R. R. Co., 81 N. Y., 233.
    It is contended by the defendants that this case is governed by the decision in Rathbone v. McConnell, 21 N. Y., 466. That was an action for the diversion of water, the complaint alleging the plaintiff to be the owner and in possession of land, and entitled to the benefit of the stream which flowed upon it; and it was held that a denial of each and every allegation of the complaint did not present a claim of title; “ as the plaintiff need only prove possession, the defendant did not set up any title to the plaintiff’s close, and it was not to be presumed that the plaintiff would undertake to give any other evidence of title than that which he alleged, to wit, possession; or that any question of paper title1 would be litigated on the trial.” So far as it may be contended that this case is an authority for the proposition that no claim of title arises upon the pleadings, unless the defendant sets up title to some part of the property described in the complaint, the decision is fully explained by the ruling in the case of Kelly v. N. Y. & M. B. R. Co., above cited. The opinion in the latter case notices the contention, “ that inasmuch as title in the defendant was not set up, and proof of possession would have sufficed to maintain the action, the issue upon the question of title was immaterial ; ” and holds that “ the position might be sound, if the complaint claimed damages only for the invasion of plaintiff’s possession,” but not where damages to the freehold was claimed; and that to entitle him to recover for injury to the freehold it was necessary to allege and prove his title.
    It may be considered as settled that proof of naked possession alone is not sufficient to sustain the action, now so familiar to our courts, for interference with the enjoyment of easements in the street suffered by the owner or léssee of premises abutting on the streets in which the elevated railroads are constructed and operated. Proof of title to the premises being necessary to maintain the action, a claim of title to real property arises upon the pleadings whenever it is alleged in the- complaint and denied by the answer, and always comes in question upon the trial unless the title of the plaintiff is conceded. The case of Quinn v. Winter, 28 N. Y. State Rep., 178, relied upon by defendants, does not conflict with this view. The action was for an injunction, restraining the defendant from using an engine on his own premises, and creating dust and noise, rendering plaintiff’s premises uninhabitable. We held, in that case, that naked possession alone, without title, was sufficient to maintain such an action against a wrongdoer; that it was not for such wrongdoer to call in question the right of possession of any occupant of the house; and we held that claim of title did not arise upon the pleadings. A late decision of the superior court, special term, in the case of Jones v. Metropolitan El. R. R. Co., is cited as in conflict with the conclusions now arrived at. That decision is placed upon the ruling in Rathbone v. McConnell, above cited, but it does not appear that the case of Kelly v. N. Y. & M. B. R. R. Co., above referred to, was brought to the attention of the court.
    The application will be granted, without costs.
    
      Julien T. Davies and William R. Page, for def’ts; Stanley W. Dexter, for resp’t.
   Per Curiam.

—We do not consider it necessary to add anything to the opinion of Ch. Judge Daly at the special term. We regard the dicision rendered by that court as correct, and affirm the orders appealed from, with costs. ■

Allen, P. J., - Bischoff and Pryor, JJ., concur.  