
    Joseph B. Bloomingdale et al., Respondents, v. Henry Steubing, Appellant.
    (City Court of New York — General Term,
    March, 1895.)
    Where the complaint in an action of trespass alleges that plaintiffs are the lessees and entitled to full possession of the premises and the answer denies that plaintiffs are entitled to full possession thereof, the title of plaintiffs to an interest in real property is involved in the action, and they are entitled to a full bill of costs although the recovery is only for a nominal sum.
    Appeal by the defendant from an order directing taxation of costs against him.
    The following is the opinion of the court at Special Term:
   Fitzsimons, J.

This is an action for trespass. The complaint alleges that the plaintiffs were the lessees and entitled to full possession of the demised premises.

The answer denies that plaintiffs were entitled to full possession of the demised premises. The answer denies that plaintiffs were entitled to full possession of the said premises.

The plaintiffs, under the pleadings, were required to and did prove upon the trial their right of possession to said premises.

The pleadings and the proof deduced upon the trial show that plaintiffs’ right of possession to the demised premises was in question, and, therefore, their title to an interest in real property was involved (Dunster v. Kelly, 110 N. Y. 561), and although the verdict in plaintiff’s favor was only for six cents, yet under section 3228, subdivision 1 of the Code, they are entitled to recover a full bill of costs and disbursements.

Moses Weinman, for appellant.

Charles J. Hardy, for respondents.

My attention has been especially called by defendant’s attorneys to Dunster v. Kelly, above referred to; That case (contrary to defendant’s contention) shows that title to real property or any interest therein was not involved ; therefore, was not like this case.

As above mentioned, the judgment was in plaintiffs’ favor for six cents. They deemed that sum insufficient and moved fo'r a new trial. The trial justice agreed with them and ordered a new trial. An order to that effect was entered, and from that order defendant appealed, and the General Term reversed the said order, with costs to appellants.

Under the order of the General Term the defendant is entitled, under section 3251, subdivision 4, to the following costs :

Before argument................................ $20
For argument.................................. 40
Term fee... .................................... 10
(As’ a case had to be made under subdivision 3)...... 20
And as containing more than fifty folios (four in
addition)..........■........................... 10
’ In all..................................... $100

And also any disbursements.

Clerk’s taxation of costs must be made to conform to these views.

Per Curiam.

Order affirmed on opinion of Fitzsimons, J., at Special Term.

Present: Ehrlich Ch. J., Newburger and Van Wyok, JJ.

Order affirmed.  