
    Morris Wilkins, Resp’t, v. John M. Williams and Fred Wisner, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Costs—Title to real estate when ptjt'in issue by the pleadings.
    Where the complaint alleged that the plaintiff was rightfully entitled to the immediate possession of a parcel of land, under and by virtue of a -written lease from the owner (naming him), and these averments were denied by the answer, Held, that the right of possession was thus put in issue by the pleadings.
    2. Same—County court—Jurisdiction.
    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.
    3. Same—Action to recover possession op personal property—Code Civ Pro., § 3228.
    Where the action was to recover possession of personal property also, and the plaintiff’s title thereto, and the right to possession thereof was estimated by the verdict. Held, that under the provisions of section 3228, Code Civil Procedure, the plaintiff was entitled to recover costs to the amount equal to the value of all chattels as fixed by the verdict, together with damages awarded for their detention.
    4. Same—Verdict—As affecting costs.
    The action was commenced in the county court, and the jury rendered a special verdict in form and substance, viz.: “That the plaintiff is entitled to the possession of the property in dispute, that the value of the use or the rental value per month is $18- that the plaintiff is entitled to recover $24, and fix his damages at that sum; that the plaintiff’s interest in said property is a special leasehold interest, and is of the value of nine dollars. " Held, that upon the verdict the defendants are not entitled to costs, and the plaintiff is entitled to costs not exceeeding the value of the personal property and the damages for defendant’s detention as fixed by the verdict.
    Appeal by the defendants from an order of the Cattaraugus county court denying their motion to set aside the taxation of costs in the plaintiff’s favor and for leave to tax their own costs in the action, and insert the same in the judgment-roll with directions that they be paid by the plaintiff.
    The action was commenced in the county court and the jury rendered a special verdict in form and substance, viz.: “That the plaintiff is entitled to the possession of the property in dispute; that the value of the use or the rental value per month, is eighteen dollars; that the plaintiff is entitled to recover twenty-four dollars and fix his damages . at that sum; that the plaintiff’s interest in said property is a special leasehold interest and is of the value of nine dollars.”
    Upon this verdict the plaintiff’s costs were taxed at $106.97.
    The complaint alleged among other facts that John Boardman was in the actual possession and the owner of a parcel of land with the buildings thereon, situated on the east side of Union street in the village of Olean; that by an instrument in writing, Boardman demised the same to the plaintiff, for the period of one year, and upon the execution of such lease, he entered into the actual possession of the premises; that the defendants thereafter wrongfully and unlawfully acquired possession of the premises and refused to deliver the same to the plaintiff. The complaint contained other averments asserting title to certain mechanical tools and implements and demanded a return' thereof from the defendants, with damages for their detention. The plaintiff demanded possession of both real and personal property and $600 as damages for the detention of the same.
    The answer denied the plaintiff’s claim of title and the execution of the lease by John Boardman, and averred that John Boardman was the owner of and had conveyed the property to them, and that they were entitled bo the possession of the same.
    By the judgment it is adjudged that the plaintiff is entitled to recover from the defendants, the premises described in the complaint, which are in the judgment-roll, described by metes and bounds.
    Neither the judgment nor the verdict have been set aside or reversed. The defendants claim that they are entitled to costs because the plaintiff recovered less than fifty dollars damages. They also contend that the title to real estate was not put in issue by the pleadings and did not come in question on the trial.
    
      J. R. & M, B. Jewell, for app’lts; Corbin & Yates, for resp’t.
   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 the plaintiff’s favor. The complaint alleges that the plaintiff is rightfully 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 of Civil Procedure, § 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 to possession thereof was estimated by the verdict. Under the provisions of section 3228, the plaintiff is entitled to recover costs to the 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 a verdict or not relative to the personal property. Nor whether the value of the same, and the damages for defendant’s 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 defendant’s detention as fixed by the verdict.

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

All concur.  