
    Lyman G. Bloomingdale et al., Respondents, v. Henry Steubing, Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    An order of the City Court reversing the clerk’s taxation of costs .is one affecting a substantial right, and is appealable to the Court of Common Pleas.
    In an action for forcible entry and detention by a landlord, the pleadings conceded that he was allowed by the plaintiffs to enter and take possession and to try to find a tenant for the unexpired term, and the question submitted was whether he exceeded his authority by repairing for a subsequent term. The answer admitted plaintiffs’ title and right to possession, but denied an allegation of the complaint that they were entitled to full possession. Held, that such denial was only of a conclusion of law and raised no issue; that the case presented no claim of title to real property, and that plaintiffs, having recovered less than fifty dollars, were not entitled to costs.
    
      Bloomingdale v. Steubing, 11 Misc. Rep. 635, reversed.
    Appeal from an order of the General Term of the City . Court of New York, which affirmed añ order reversing the clerk’s taxation of costs.
    Action to recover damages for trespass to real property.
    
      Moses Weinman, for appellant.
    
      Chas. J. Mardy, for respondents.
   BisenoFF, J.

The order affects a substantial right and is, therefore, appéalable to this court. McNamara v. Nolan, 13 Misc. Rep. 16 ; 68 N. Y. St. Repr. 229.

The action was for “ forcibly and wrongfully entering and taking possession on February 1st, 1892, of certain premises, 160-162 East Fifty-ninth street, in the city of New York, of which , plaintiffs were the lessees under a lease from the defendant, expiring May 1st, 1892,” and resulted in a 'verdict in favor of the plaintiffs for six cents damages. It was conceded by the pleadings that “ by agreement, between the parties the • defendant was allowed to enter and také possession-and to try / and find a tenant for the premises for the unexpire.d term of the plaintiffs’ lease,” and the only issné tried and submitted was “ Whether, having permission from the plaintiffs to enter ■ for one purpose,” the defendant “ availed himself of such permission- for a totally different purpose, to wit, to put the premises in repair for the term commencing after the plaintiffs’ lease expired.” Bloomingdale v. Steubing, 12 Misc. Rep. 429. Obviously, the allegation of the complaint that the plaintiffs as lessees were “ entitled to the full possession of ” the demised premises was a conclusion of law, immaterial and not traversable. Scofield v. Whitelegge, 49 N. Y. 259. Hence, its denial' by the defendant created no issue. People ex rel. Purdy v. Commissioners of Highways, 54 N. Y. 276. The answer expressly admitted the plaintiffs’ title and right of possession as lessees of the defendant.

The issue being wholly with regard to the terms and extent of the license from the plaintiffs to the defendant, therefore presented no claim of title to real property ” within the meaning of subdivision 1 of section 3228 of the Code of Civil Procedure so as to entitle the plaintiffs’ to the costs of the action notwithstanding the fact that the recovery was less than fifty dollars for damages ( Utter v. Gifford, 25 How. Pr. 289); and pursuant to the provisions of section 3229 the'defendant was entitled to such costs.

The orders of the General, and Special Terms of the court below, by which the plaintiffs were awarded the costs of the action, are reversed, with costs and disbursements of the several appeals to the defendant.

Daly, Oh. J., and Pryor, J., concur.

Orders of General and Special Terms below reversed, with costs.  