
    QUIN v. WINTER.
    N. Y. City Court, Special Term ;
    
    April, 1889.
    
      Costs.] Title is not deemed to have been in issue, within the rule allowing costs though only nominal damages be recovered, where the action is for a nuisance rendering plaintifE’s dwelling uninhabitable, although ownership be alleged and denied, for the claim does not depend on ownership.
    
    Motion to set aside clerk’s taxation of costs.
    The complaint alleged in substance: (1) plaintiff’s ownership and possession of premises: (2) defendant’s possession of adjoining premises for uses of a coal yard ; (3) the erection and use of a large screen for sifting coal by steam power supplied by an engine, which, with the screen, were placed alongside of the plaintiff’s house, that, in their use, coal-dust and cinders constantly fall and settle upon the plaintiff’s house, “ which, together with the use of the engine, causes loud and offensive noises, and tainting and corrupting the atmosphere so as to render the dwelling-house and premises of the plaintiff unfit for habitation, to the nuisance of said dwelling-house and premises of the plaintiff, to her damage, two thousand dollars.”
    The defendant’s answer, among other allegations, denied knowledge, etc., as to the plaintiff’s ownership.
    At the trial, the plaintiff recovered a verdict of six cents, and entered a judgment against the defendant for a full bill of costs, on the ground that within Code Civ. Pro. § 3228, the plaintiff was entitled to costs in an action, “in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial.”
    The defendant now moved to set aside the clerk’s taxation of costs in favor of the plaintiff, and that costs should be awarded to the defendant.
    
      George W. Blunt, for the defendant and the motion.
    
      H: W..Leonard, for the plaintiff.
    
      
       In Dunster v. Kelly, 110 N. Y. 558 ; aff’g 55 Super. Ct. (J. & S.) 370, it was held, that where the pleadings do not raise any issue upon the ownership of land and adjoining buildings thereon, but allege merely that the wall between them, into which the defendant has made holes and run stove pipes, was a party wall, and raise only the question whether defendant’s acts were a trespass, as plaintiff contends, or an exercise by a co-owner of his right, which is the defense,—the action does not involve title to real property under Code Civ. Pro. § 3228, and a recovery by plaintiff of nominal damages does not entitle him to costs.
    
   Nehrbas, J.

The question whether the title to real estate is involved depends upon whether the injury results to the freehold or merely to the right of possession. If it be a permanent injury to the freehold, then no one except the owner of the premises can bring suit, and if his ownership be put in issue, then the title to real property comes in question (Kelly v. N. Y. Manhattan Beach Railway Co., 81 N. Y. 233).

In this case, plaintiff alleges both ownership and right of possession, both of which are put in issue. But his claim is for the maintenance of a nuisance on defendant’s premises, whereby coal dust and cinders fall on plaintiff’s premises, and the use of the engine causes loud noises, and corrupt the atmosphere “ so as to render the dwelling-house and premises of plaintiff unfit for habitation, to the nuisance of said dwelling-house of plaintiff, to her damage, $2,000.” This does not affect the freehold, and the suit might be brought by the person entitled to the possession. The jury, having rendered a verdict for plaintiff for six cents damages, she is, therefore, not entitled to costs. They, consequently, go to the defendant.

The judgment entered by plaintiff must, therefore, be set aside. No motion costs.  