
    SUPREME COURT.
    Margaret Boyle and others, respondents, agt. Sabra Lawton and others, appellants.
    • Costs — Action to reaov&i' damages f m' an alleged, ts'espass upon lands — When plaintiffs entitled to costs on the ground that title to real estate was put in issue ■ by the pleadings, although the recovery is but ten dollars — Complaint — Answer.
    
    In an action for damages for an alleged trespass upon lands, where the plaintiffs were M. B., the widow of P. B., deceased, and four infant children, and heirs of deceased, who sued by guardian, the complaint alleged that the widow had a dower interest in the premises in question, and that. the infants were owners of the premises as tenants in common, subject to the dower interest of the widow. It also alleged that all the plaintiffs were in possession of the premises at the time of the alleged trespasses. The answer contained a general denial of the allegations of the complaint, except as admitted, and alleges, for a further defense, that one of defendants was the lessee of certain promises in the same town as the premises claimed by the plaintiffs, and that the house mentioned in the complaint stood on the premises of the defendant, and that she removed it from her own premises, as she had a right to do.
    
      Meld, that the allegations thus referred to directly put in issue the title to the locus in quo, and entitled the plaintiffs to costs.
    Hot only does the complaint allege title in the infant plaintiffs, subject to the dower interest of the widow; but the answer takes issue with that allegation, first, by denying it, and, secondly, by alleging title in the defendant as lessee of the soil on which the house stood, the removal of which was-one of the trespasses alleged.
    
      Fifth Department, General Term,
    
    
      January, 1886.
    
      Before Smith, P. J, Bradley and Barker, JJ.
    
    Appeal from an order of tbe Cattaraugus special term denying defendants’ motion to set aside tbe taxation and allowance-of costs to tbe plaintiffs, and to tax and allow costs to tbe defendants.
    
      
      Johnson & Markham, for appellants.
    
      Ansley & Davie, for respondents.
   Smith, P. J.

The action is to recover damages for an -•alleged trespass upon lands. The plaintiffs recovered a verdict -of ten dollars. The plaintiffs claim to be entitled to costs 'on the ground that the title to real estate was put in issue by the pleadings, and that claim presents the only question in the case.

The plaintiffs are Margaret Boyle, the widow of Peter Boyle, ■deceased, and four infant children and heirs of said deceased, •who sue by guardian. The complaint alleges that the widow has a dower interest in the premises in question and that the infant plaintiffs are the owners of said premises, as tenants in •common, subject to the dower interest of the widow. It also alleges that all the plaintiffs were in possession of the premises -•■at the time of the alleged trespasses. It further alleges that the ■defendants entered upon the said premises, with force and arms, .-.and broke and tore down the fence around the same; pulled down and destroyed a certain house situate thereon; broke up and destroyed a large quantity of lumber, and destroyed the trees and shrubbery growing upon said premises, to plaintiffs’ •damage, &c. The answer contains a general denial of the alle•gations in the complaint, except as admitted, and alleges, for a further defense, that the defendant Sabra Lawton was the lessee ■ of certain premises in the same town as the premises claimed by the plaintiffs, and that the house mentioned in the complaint -.stood on the premises of the defendant, and that she removed it from her own premises, as she had a right to do.

The allegations thus referred to very distinctly put in issue •the title to the bous in quo. Not .only does the complaint allege title in the infant plaintiffs, subject to the dower interest ■of the widow, but the answer takes issue with that allegation, first, by denying it, and secondly, by alleging title in the defendant, Sabra Lawton, as lessee, of the soil on which the house ;stood, the removal of which was one of the trespasses alleged

Tbe counsel for tbe appellants contends that as tbe widow, as dowress, had no interest in tbe real estate, and could not recover-in tbe action, except, possibly, for injuries to tbe possession, and as tbe heirs joined with tbe widow as plaintiffs, they are-limited in tbeir right of recovery, to such grounds of action as they bad in common witb ber; that is, to injuries to the-possession.

It is true, that until assignment of ber dower, tbe widow could not recover for injuries to tbe inheritance. But tbe allegation of title in tbe infant plaintiffs, subject to the dower right of tbe widow, is not cut down or qualified by tbe fact that tbe • widow is joined witb them as a plaintiff. Tbe only conse-. quence at most is, that so far as injuries to tbe freehold are-concerned she was improperly joined. But tbe misjoinder was, not objected to by demurrer or answer, and was, therefore, waived (Code Civ. Pro., sec. 499).

Tbe defendants, by tbeir answer, compelled tbe infant plain-. tiffs to establish title in themselves in order to recover for tbe - alleged injuries to tbe freehold, beyond tbe infraction of tbeir • possessory rights.

Tbe order should be affirmed, witb ten dollars costs and dis-. bursements.

Barker and Bradley, JJ., concur; Haight, J., not sitting...

So ordered.  