
    Wilkins v. Williams et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    1. Courts—Jurisdiction of County Court—Title to Land—Costs.
    Under Code Civil Proo. N. Y. § 340, defining the jurisdiction of the county court, and containing no provision conferring jurisdiction of actions to determine the right to possession of realty, that court has no jurisdiction to try an issue on such right; and so much of a judgment as purports to determine plaintiff’s right to such possession is void, and affords no support for an award of costs in his favor.
    2. Same—Action for Chattels.
    But where the action is also to recover possession of personal property, and plaintiff’s title and right of possession are estimated by the verdict, and his damages are assessed at $24, plaintiff is entitled to costs to an amount to the value of all the chattels as fixed by the verdict, together with damages for their detention, under section 3228, providing that plaintiff is entitled to recover costs of course on final judgment in his favor in an action to recover a chattel, but limiting the amount to the amount of the value and damages for detention, when such amount is less than $50.
    
      3. Same—Failure to Object to Jurisdiction at Trial.
    Jurisdiction is not conferred by failure to raise the question at the trial.
    4. Pleading—Pleading and Proof—Issues Raised.
    Plaintiff's right of possession is put in issue by a complaint alleging that he is entitled to immediate possession by virtue of a lease from a person named, and an answer denying such allegations.
    Appeal from Cattaraugus county court.
    Action in the county court of Cattaraugus county to recover possession of real property, which plaintiff claimed under a lease from the owner, and also to recover possession of blacksmith’s tools belonging to plaintiff, with damages for detention of both. The jury found that “plaintiff is entitled to the possession of the property in dispute; that the value of its use or the rental value per month is $18; that the plaintiff is entitled to recover $24,” and they fixed his damages at that sum; “that the plaintiff’s interest in said premises is a special leasehold interest, and is of $9 value. ” Costs were taxed in plaintiff’s favor for $106.79. and it was adjudged that he “recover of the defendants * * * the possession of the premises and property described in the complaint, * * * and, further, that lie recover of the defendants the sum of $24 for the withholding thereof, and $106.79 costs of this action.” Defendants moved to set aside the taxation, and for leave to tax costs in their favor. The motion was denied, and defendants appealed.
    The following sections are from Code Civil Proc. isl". Y.: See. 340. “The jurisdiction of each county court extends to the following actions and special proceedings, in addition to the jurisdiction, power, and authority conferred upon a county court, in a particular case, by special statutory provisions; (1) To an action for the partition of real property; for dower; for the foreclosure," redemption, or satisfaction of a mortgage upon real property; or to procure a judgment requiring a specific performance of a contract relating to real property, where the real property to which the action relates is situated within the county; or to foreclose a lien upon a chattel, in a case specified in section seventeen hundred and thirty-seven of this act, where the lien does not exceed one thousand dollars in amount, and the chattel is found •within the county. (2) To an action in favor of the executor, administrator, ■or assignee of a judgment creditor, or, in a proper case, in favor of the judgment creditor, to recover a judgment for money remaining due upon a judgment rendered in the same court. (3) To an action for any other cause, where the defendant is, or, if there are two or more defendants, where all of them are, at the time of the commencement of the action, residents of the county, and wherein the complaint demands judgment for a sum of money only, not exceeding one thousand dollars; to recover one or more chattels, the aggregate value of which does not exceed one thousand dollars, with or without damages for the taking or detention thereof. (4) To the custody of the person and the care of the property, concurrently with the supreme court, of a resident of the county who is incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness; and to every special proceeding, which the supreme court has jurisdiction to entertain, for the appointment of a committee of the person or of the property of such an incompetent person; or for the sale or other disposition of the real property, situated within the county, of a person, wherever resident, who is so incompetent, for either of the causes aforesaid, or who is an infant; or for the sale or other disposition of the real property, situated within the county, of a domestic religious corporation.” Sec. 3228. “The plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor, in either of the following actions: * * * (2) An action to recover a chattel; but if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. * * *”
    
      Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      J. U. c6 M. B. Jewell, for appellants. Corbin & Tates, for respondent.
   Barker, P. J.

By the record it appears that the title to real estate was put in issue by the pleadings, and that question was tried, and determined "in plaintiff’s favor. The complaint alleges that the plaintiff is rightly entitled to the immediate possession of a parcel of land under and by virtue of a written lease from the owner, naming him. These averments are denied by the answer. The right of possession was thus put in issue by the pleadings. Powers v. Conroy, 47 How. Pr. 84, and the cases there collated.

The county court had no jurisdiction to try the issue as to the right of the plaintiff to the possession of the real estate described; and so much of the judgment as relates to that issue is void, and affords no support for the award ■of costs in the plaintiff’s favor. Code Civil Proe. § 340. It does not appear from the papers presented that the question of jurisdiction was raised upon the trial, but consent of parties never confers jurisdiction. The defendants might be entitled to costs in their favor if the question of title to the premises was the only issue raised by the pleadings, and passed upon by the verdict and judgment. The action was to recover possession of personal property also; and the plaintiff’s title thereto, and the right of possession thereof, were ■estimated by the verdict. Under the provisions of section 3228, the plaintiff is entitled to recover costs to an amount equal to the value of all chattels as fixed by the verdict, together with damages awarded for their detention. On ■this appeal we do not consider the question whether the judgment follows the verdict or not, relative to the personal property; nor whether the value of the same, and the damages for defendants’ detention, are by the verdict separately assessed from the value of the use of the freehold estate. We only determine, in disposing of this appeal, that upon the verdict the defendants are not entitled to costs, and the plaintiff is entitled to costs not exceeding the value of the personal property, and the damages for defendants’ detention as ■fixed by the verdict.

Order appealed from reversed, and retaxation ordered, without costs of this appeal to either party. All concur.  