
    Mary B. Horton, Resp’t, v. Joseph V. Jordan, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Costs — Title to real estate.
    Where the complaint in an action for trespass in cutting ice from a pond alleges ownership by plaintiff, and the answer is a denial, and where evidence of title is given on the trial, but the question of title is decided adversely to plaintiff and he succeeds on proof of possession, the title to real estate is brought into question, and plaintiff is entitled to costs, although he recovers less than fifty dollars.
    Appeal from order denying motion to vacate and set aside a certificate that the title to real estate came into question on the trial, the taxation of costs and judgment.
    The respondent brought this action against the appellant to-recover damages from the appellant by reason of his wrongful acts in entering upon the lands of the respondent and removing and converting to his own use large quantities of ice which was on respondent’s pond, on her lands.
    Respondent’s complaint, among other things, contained an allegation that she was the owner of premises upon which was a pond known as Horton’s pond.
    Appellant’s answer was a general denial.
    Plaintiff, on the trial, put title deeds in evidence.
    
      At the close of plaintiff’s case, the court, on defendant’s motion to dismiss the complaint, decided: (1) That plaintiff had failed to show title in her ; (2) that plaintiff had shown prima facie possession ; (3) that defendant could not go into the question of title and must go the jury only upon the question of possession, in the following words:
    “ I am strongly inclined to think that the deed does not convey the pond; that, under the will, the title of the pond remaining in Coert Horton, passed to his residuary devisee.
    “I am not going to allow the defendant to go into any question as to the title, because I hold against - the plaintiff on this question of title, not that the plaintiff’s ancestors did not have title, they did have title, but when the title got down to Coert Horton, •although he may have attempted and may have intended to convey it to this plaintiff, or to this plaintiff’s immediate grantors, I think that he did not do so, and that it went under the residuary «clause of his will, as it turns out, to other people. That leaves the only question for the consideration of the jury, the question of possession in the plaintiff, sufficient possession to maintain the action. That is the only question I am going to leave to them. I have said that, construing the testimony most favorably to the plaintiff, I thought that it did establish a sufficient possession. Row it is for you to controvert, or contradict, or refute that testimony.”
    The jury rendered a verdict of $7.50 for the plaintiff.
    The trial justice subsequently made this certificate, “ I certify that upon the trial of this action a claim of title to real property came in question.”
    
      Herrick & Losey, for app’lt; Thompson & Town, for resp’t.
   Dykman, J.

This is an appeal from an order made at special term, denying a motion of the defendant to vacate and set aside a certificate of the trial judge that the title to real property came in question upon the trial of this action.

An examination of the pleadings and the proceedings upon the trial renders it entirely plain that the title to real property was brought in question upon the trial

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.  