
    MICHAEL E. DUNSTER, et al., Appellants v. PATRICK KELLY, Respondent.
    
      Costs—title to realty, when not involved in issue—Allegation of license and of party wall.
    
    Plaintiffs being owners of certain premises, brought action against defendant, the owner of adjoining premises, to recover damages caused by emission of smoke, dust and dirt upon their premises, through certain pipes inserted by defendant into the wall separating said premises. Defendant admitted the title of the premises to be as alleged in the complaint, but denied the damage. The jury found for plaintiffs in six cents damages.
    
      Held, that defendant was entitled to have his costs taxed; that no claim to title to real property was raised by the pleadings; that an allegation that the holes in the wall were there when it was built, and had been in use for more than twenty years, if intended to show a license in defendant, would not raise a question of title; that the allegation in the answer that the wall was a party wall was immaterial as affecting plaintiff’s cause of action, and did not in any event raise a question of title, under the admissions of the answer.
    Before Truax and Dugro, JJ.
    
      Decided March 6, 1888.
    Appeal from order.
    The plaintiffs were the owners of certain premises in the city of New York, and the defendant was the owner of the premises adjoining on the east. The plaintiffs brought their action to recover damages for injuries which they alleged they sustained, by reason of the emission of smoke, dust, and dirt upon their premises, through certain stove pipes which the defendant had inserted into the wall separating the plaintiffs’ premises from those of the defendant. The defendant admitted the title of the premises mentioned in the complaint to be as there alleged, but denied the allegations of damage. The defendant' further alleged as a defense, that the holes through which the stove pipes had been inserted, were built into the wall when the houses were erected, and had been in use for more than twenty years; that the wall was a party wall; and that the chimney was intended for the use of those occupying defendant’s premises. On the trial, the jury found a verdict for plaintiffs, and assessed the damages at six cents. Each party served a bill of costs. The clerk taxed the defendant’s bill, the plaintiffs objecting that a claim to title of real property was raised by the pleadings, and therefore they were entitled to costs.
    The plaintiffs then applied at special term for an order vacating and setting aside the taxation of the clerk, and directing him to tax the plaintiffs’ bill of costs. This motion was denied, and the plaintiffs appeal from the order.
    
      Herbert F. Andrews, for appellants:
    I. Plaintiffs claim damages for trespass committed by defendant in making use of the chimney belonging to them. The defendant alleges that the chimney belongs as much to him as to the plaintiffs. The entire right of recovery thus depends upon the title to the chimney. Anything built or erected upon the land is real property. 1 Washburn Real Prop., 5th ed. 6 ; 3 Kent Com. 401.
    II. Defendant in his answer claims a right by prescription and this also raises the question of title. Heaton v. Ferris, 1 Johns. 146; Eustace v. Tuthill, 2 Johns. 185; Randall v. Crandall, 6 Hill 342 ; Rathbone v. McConnell, 21 N. Y. 466; Dinehart v. Wells, 2 Barb. 432. The last case cited holds that if the question of title is raised by the pleadings, plaintiff, if the verdict be in his favor, is entitled to costs, no matter what the nature of the action may be, whether trespass, nuisance, waste or assault and battery, and further that a claim of easement, or anything that in any way affects the estate, puts the title in question.
    
      III. If the question of title arises upon the pleadings no certificate that it arose upon the trial is necessary to entitle plaintiff to costs. Kelly v. N. Y. & M. B. R R. Co., 81 N. Y. 233.
    
      William H. Sage, for respondent:
    I. The complaint and answer both admit the titles of the respective owners. The answer claims : 1. That the wall in question is a party wall; 2. That each party owns to the center of the wall; 3. That the stove holes aré all in the defendant’s half of the wall; 4. That those holes open into chimney flues that are a vacant space in the common wall. Therefore Kelly does not claim any part of Dunster’s wall, but only the right to use his own half, where the stove holes are, and no judgment for damages that could have been recovered would have affected in the least the title of either plaintiffs or defendant. Scully v. Sanders, 77 N. Y 598.
    II. As mere possession was sufficient to uphold the action for damages (if proved), an allegation of title does not entitle the plaintiff to costs. Muller v. Bayard, 15 Abb. Pr. 449; Squires v. Seward, 16 How. Pr. 478; Rathbone v. McConnell, 21 N. Y. 466.
    III. Even in an action for trespass (and this is merely an action for an alleged nuisance), where the boundary line between two adjoining lots is admitted, and the plaintiff claims that the defendant’s building, or any appurtenant thereof, trespasses on plaintiff’s property, the issue thus formed is one of location depending upon the accuracy of measurement, and does not involve any question of title. Heintz v. Dellinger, 28 How Pr. 39 ; Squires v. Seward, 16 Ib. 478; Burnet v. Kelly, 10 Ib. 406; Rathbone v. McConnell, 20 Barb. 311; Rathbone v. McConnell, 21 N. Y. 466; Muller v. Bayard, 15 Abb. Pr. 449; Smith v. Riggs, 2 Duer 622; Ehle v. Quackenbush, 6 Hill 537.
   By the Court.—Truax, J.

The only material issue raised by the pleadings was, were the plaintiffs injured by the acts of the defendant ? The allegation in the answer that the wall between plaintiffs’ premises and defendant’s premises was a party wall, was an allegation of an immaterial fact, because, if the allegation that the plaintiffs were injured by the emission of smoke, dust, and dirt, from the defendant’s premises, upon theirs, was true, it was no defense that such emissions were made from a party wall.

If the defendant by the allegation that the wall had been in use inore than twenty years, meant to allege that he had a license to do the acts complained of, that allegation would not raise a question of title. Rathbone v. McConnell, 21 N. Y. 466 ; Muller v. Bayard, 15 Abb. 449 ; Mechl v. Schwieckart, 67 Barb. 599.

But even if we consider the allegation, that the wall was a party wall, to be a material allegation, it did not put in issue the title to the wall, or to any part of plaintiffs’ premises, for it was admitted by the answer that the plaintiffs owned the premises claimed by them in the complaint, and that the defendant owned the premises adjoining the said premises of the plaintiffs,” and the premises were described in the complaint, and the description was admitted by the answer.

If plaintiffs had only the right of possession, they were entitled to recover damages for the injury that the evidence showed they had sustained to their right of possession. No damage to the freehold is alleged in the complaint.

In Kelly v. N. Y. & Man. B. R. R. Co., 81 N. Y 233, and Green v. The Village of Canandaigua, 30 Hun 306 (actions for trespass, quare, clausam fregit), the complaints alleged that the plaintiffs were owners of the property which, it was alleged, the defendants had injured, and the answers denied- tiffs allegation of ownership.

The order appealed from is affirmed with costs.

Dugro, J., concurred.  