
    Mary A. Hill, Respondent, v. Nicholas McMahon, Appellant.
    (No. 2.)
    
      Action for trespass on land and cutting timber thereon — verdict that defendant did not cut timber and that the plaintiff owned the land—it does not sustain a judgment that defendant be barred of all claim to the land and that plaintiff have costs — defendant is not entitled to a judgment of dismissal on the merits — it. is a mistrial. '
    
    The complaint in an action for a trespass on -land alleged that, since February 13, 1898, the plaintiff had been, and still was, the owner and in possession of such and, and that- between February 13,1898; and -August 1; 1901, on many and various days, the defendant wrongfully entered upon such premises and, without the plaintiff’s leave, cut down and carried away a number of trees of the value of $150, and damaged the plaintiff’s land to the extent of $25. A money judgment for treble damages, amounting to $525, was demanded. The answer contained a general denial and an allegation that the defendant was at all the times mentioned in the complaint the owner of, and in possession of, the premises in question.
    Upon the trial the following questions were submitted to the jury and answered as follows:
    “ Did the defendant cut timber on the disputed premises after February 3d, 1889? Ans. Ho.”
    “ If defendant so cut timber, what was its value? Ans. Hothing.”
    “Does the disputed premises belong to the plaintiff? Ans. Tes.”
    Ho verdict was rendered other than the answers to these interrogatories.
    
      Held, that the plaintiff was not entitled to enter a judgment adjudging that the defendant be forever barred from all claims to any estate in the premises mentioned in the complaint, as such a judgment was not consistent with the cause of action alleged in the'complaint, but would be appropriate only to an action to compel the determination of a claim to real property;
    That the plaintiff had no right to tax costs against the defendant;
    That the defendant was not entitled to have the judgment entered by the plaintiff amended so as to provide for the dismissal of the plaintiff’s claim on the merits with costs against the plaintiff, as the special verdict that the defendant did not cut timber on the disputed premises, after February 3, 1899, only covered a portion of the time, between February 13, 1898, and August 1, 1901, during which the trespass was alleged to have taken place;
    That there having been no verdict' for the plaintiff for any damages, and no general verdict for the defendant, there was a mistrial, and the judgment entered thereon should be vacated.
    Appeal by the defendant, Nicholas McMahon, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Washington on the '7th day of November, 1902, denying the defendant’s motion for an order amending the judgment theretofore entered herein by the plaintiff.
    
      Frederick Fraser, for the appellant.
    
      Abner Robertson, for the respondent.
   Chester, J.:

The action is for a trespass on land. The complaint is in the usual form. It alleges, first, that the plaintiff since the 13th day of February, 1898, has been and still is the owner and in possession of certain premises described therein, and second, that the defendant between the 13th day of February, 1898, and the 1st day of August, 1901, at many and various days wrongfully entered upon such premises and without the leave of plaintiff did cut down and carry away a, number of trees of the value of $150, and damaged plaintiff’s lands to the amount of $25. A money judgment for treble damages, $525, is demanded. The answer is a general denial and also an allegation that the defendant at all the times mentioned in the complaint was the owner and in possession of the land upon which the acts alleged as trespasses in the complaint' were' committed.

Upon the trial certain questions were submitted by the court to, the jury and answered as follows:

“ Did the defendant cut timber on the disputed premises after' February 3d, 1899 ? Ans. No.”
“ If defendant so cut timber what was its value ? Ans. Nothing.”
“Does the disputed premises belong to the plaintiff? Ans. Yes.”

There was no verdict other than the answers to these interrogatories.

Thereupon the plaintiff’s attorney entered with- the clerk a judgment that the defendant be forever barred from all claim to any estate in the- premises mentioned in the complaint, and for costs of the action in plaintiff’s, favor and against the defendant.

On taxation the clerk disallowed costs against the defendant. The plaintiff’s attorney then moved, at a Special Term held by the justice before whom the case was tried, for a retaxation of costs. A counter motion was made by the' defendant’s attorney to amend the judgment by inserting therein a clause adjudging that the plaintiff’s claim against the defendant for cutting timber on the disputed premises be dismissed ujxm the merits* and that .the defendant shall recover his costs against the plaintiff. Both motions were heard together. The court made an order denying the motion to amend the judgment and an order directing the clerk to tax full costs in favor of the plaintiff and against the defendant. . From .each of these orders the defendant has appealed.

The Code of Civil Procedure provides in section 3228- -that “the plaintiff is entitled to costs, of course, upon the rendering of a.final judgment in his favor in * * * an action triable by & jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings.”

The defendant not only denied the allegation of the complaint that plaintiff was the owner of the premises in question, but alleged affirmatively in his answer that he—the defendant—was the owner. It is clear, therefore, that a claim of title to real property arose on the pleadings. (Farrell v. Hill, 69 Hun, 455.) The action was also triable by jury. But these facts alone are not sufficient to carry costs. There must also be a final judgment in plaintiff’s favor to entitle her to costs. There is nothing here to justify such a judgment. The complaint simply states a cause of action to recover damages for an alleged trespass. The jury have not found that any trespass was committed, and there is no verdict for the plaintiff for any damages.

The plaintiff’s attorney has assumed that the answer of the jury that the disputed premises belong to the plaintiff was to be regarded as a verdict for the plaintiff, and has upon that alone entered the judgment in question. But she was entitled to no judgment inconsistent with the case made by the complaint and embraced within the issue. (Code Civ. Proc. § 1207.) The judgment entered is appropriate only to a cause of action to compel a determination of a claim to real property, but the complaint does not state such a cause of action (Id. § 1639), and the judgment is not consistent with the alleged cause of action for trespass.

I think, therefore, that the plaintiff’s attorney had no right to enter the judgment he did; that plaintiff, therefore, has no legal right to costs, and that the clerk correctly refused to tax her costs.

■ Nor do I think on this record that the defendant is entitled to have the judgment amended to provide for the dismissal of the plaintiff’s claim on the merits, with costs against the plaintiff. The special verdict is not sufficient to justify it, and there was no general verdict.for the defendant. A special verdict must contain all the facts necessary to sustain the judgment. (Casey v. Dwyre, 15 Hun, 153; People v. Williamsburgh Turnpike & Bridge Co, 47 N. Y. 586.) The only fact to support a judgment favorable to the defendant contained in the special verdict is that the defendant did not cut timber on the disputed premises after February 3, 1899. The complaint alleges that between the 13th day of February, 1898, and the 1st day of August, 1901, the defendant, on many and various days, wrongfully entered plaintiff’s premises and cut and carried away timber. The answer denies this and thus the issue is framed. The question answered by the jury covers only a portion of this time, so there is not sufficient in the special verdict to justify a judgment for the defendant dismissing the complaint, or the plaintiff’s claim, upon this issue.

There being no verdict for the plaintiff for any damages and no general verdict for the defendant, there was a mistrial and the judgment entered should be vacated.

Both orders appealed from should be reversed, without costs of appeal to Cither party, and with leave to either party to apply to the Special Term to vacate the judgment.

All concurred; Smith, J., not sitting.

Order reversed, without costs, and with leave to either party to apply to the Special Term to vacate the judgment.  