
    Jonathan L. Gould, App’lt, v. Florence E. Patterson, as Administratrix, etc., Resp’t.
    
      (Supreme Court, General Term, Fifth department,
    
    
      Filed June 21, 1895.)
    
    Appeal — Justice’s couiit; — Title to seal estate.
    Where the defendant does not take steps, in an action involving title to real estate in justice’s court, to procure a discontinuance of the action, a failure of the justice to dismiss, though title is brought in question and disputed, does not render his judgment void, for want of jurisdiction, hut merely erroneous, and the county court, ón appeal, can try the case, including the question of title.
    Appeal from a judgment of the county court, dismissing the «complaint.
    
      Charles D. Newton, for app’lt; E. C. Olney, and S. M. Norton, for resp’t
   Bradley, J.

— The action was originally commenced against the defendant’s intestate; and recovery had'against him, by the plaintiff, in justice’s court. On appeal, and demand for a new trial in the county-' court, a trial was had, which resulted in dismissal of the complaint, and on appeal to this court the judgment of the county court was reversed, and' a new trial granted. 63 Hun, 575 ; 45 St. Rep. 85.

This appeal is from the judgment resulting on the second trial in the county court. The ground for the dismissal of the complaint, as shown by.-the decision of the court, was that it appeared on the trial, by the plaintiff’s showing, that the title to real property was in question, which 'title'was disputed by the defendant, anil that, the same'so appeared and was disputed on the trial in the justice’s court:1' The cause of action alleged in the complaint is that the defendant wrongfully entered upon certain described land owned by, and -in the possession of, the plaintiff, and maliciously cut down and appropriated to his own use some trees growing thereon.' The defendant, by his answer, denied the allegations of the complaint, and alleged title'and possession in hiniself to the land where the trees stood;,and from which they were taken,. -Upon thetrial in the'county court, the. plaintiff gave evidence of title to the locus in quo, and- that' question was lití- ; gated.' ' This could have been legitimately done there if the action had been originally' comifienced in' the county court. On the review by this court of''the first trial "in the county court, it was held that the' fact that' the action was originally commenced in-the justices court did not deny-to-the'-county court the right to ■determine it upon the merits, 'although "title'to the real estate was brought in question by the plaintiff’s showing, and was disputed by the defendant; and it was there said by Mr. Justice MacomBER that “ the learned county judge assumed, as we think, erroneously, that- he was hearing the same case that had been tried before the justice of "the peace. ■ The fallacy of the learned counsel for-the defendant, -in making his applicntion for a nonsuit, lay in the..assumption, which as above seen has no existence in the statute, that' the .county court was obliged - to dismiss the case, if title to real estate appeared upon the trial there, just as though it was acting in the place of the court of the justice of the-(peace.’, Reference was also made to the fact that it did not appear in' the record before this court, on such review, that title to real property was in question and disputed on the trial in the justice’s court; but the effect on the trial in-the county court of such facts, if they had appeared was not announced. On the second trial in the county court, the evidence taken in the justice’s court was introduced with a view to the inquiry whether title to land was there brought in question and disputed. The defendant had the opportunity, before the justice, of procuring a discontinuance of the action there in the maimer provided by the statute. Code Civ. Pro. §§ 2951, 2952, 2954. By reason of his failure to do so the justice had jurisdiction of the action, was required to proceed with the trial of it, and the defendant was precluded from drawing the title in question. Id. § 2955. Yet, if it appeared upon the trjal, from tjie plaintiff’s showing, that title to real property was in question and disputed by the defendant, the justice should have dismissed the complaint. Id. § 2956. It is difficult in such case to see any support for the proposition that the trial and de-, termination of the action by the county court are dependent upon or controlled by the evidence and the questions raised upon it in the justice’s court, simply because they were raised there. Although a justice of the peace cannot take cognizance of an action where the title to real property comes in question, as prescribed by the statute (Id. § 2863), the question whether such title is brought in question .on the plaintiff’s showing, and disputed by the defendant, is for the justice to decide, and his refusal to dismiss the complaint when it does so appear does not render his judgment for the plaintiff void for want of jurisdiction, but voidable pply, for eiyor. Id. § 2956 ; Koon v. Mazuzan, 6 Hill, 44; Bowyer v. Schafield, 1 Abb. Dec. 183, *41 N. Y. 633; White v. Place, 40 Hun, 481; Milbanks v. Coonley, 17 St. Rep. 533. A different question arises when the justice’s judgment from which appeal for a new trial is taken is void. Then there is no judgr ment to support such an appeal, or a new trial founded upon it. Gillingham v. Jenkins, 40 Hun, 594. As in the present case the appeal was available for the purposes of a new trial in the county court, the only question here is whether or not there was any, and what, limitation of the power of the county court upon the trial, other than that arising from the issues as presented by the pleadings. They put in issue the title as well as the possession of the locus in quo. If there is any other it arises from the fact that the action w,as commenced in justice’s court.

In O'Donnell v. Brown, 3 Lans. 474, which was decided in 1871, it was held that the liability to have the action dismissed by reason of a.disputed question .of title followed the ease from the justice’s court to the appeal for a new trial in the county court. This was before the adoption of the Code of Civil Procedure. In White v. Place, 40 Hun, 483, -that proposition is by Mr. Justice Bockes treated as one of doubt. And, on the first review of the present case, it was held that the trial in the county court was not subject to the restriction, in that respect, of the provisions of the statute; applicable to the trial in the justice’s court, but that the county court had the power to fully try the issues on the merits, notwithstanding it involved the determination of a disputed question o£ title to real property. Gould v. Patterson, 63 Hun, 575; 45 St, Rep. 85. That is controlling authority here, and unless this case,, for some substantial reason, be distinguished from the case on the; former review, the same result then given must follow. The.court then did not determine that, in case the title to real property was brought in question and disputed on the trial in the justice’s-court, the county court could on that ground dismiss the complaint if the like question arose on the trial in that court. No such question was before the court on that review, nor does it necessarily appear what disposition would have been made of that proposition if it had been there for consideration. The relation which the action in its procedure, when taken by the appeal into the county court for a new trial, has in that respect to it, as it appeared in the justice court, is such as is given by the statute and! the issues to be tried. The manner in which they are tried in the-court below, and the questions there raised, are not matters for consideration on the trial in the county court. Crannell v. Comstock, 12 Hun, 293. Prior to the amendment in 1865 of section. 366 of the Code of Procedure, it was held that the issues in the-justice’s court could not be changed by amendment in the county court on appeal to it for a new trial. Savage v. Cock, 17 Abb. Pr. 403. But the jurisdiction and powers of the county court have-been somewhat enlarged by section 348, 3071, Code Civ. Proc. By the latter section it is provided that, upon such an appeal to the-county court for a new trial, all proceedings therein “are the same as if the action had been commenced in the appellate court, except, as otherwise specially prescribed” in the chapter referred to. This-relates to procedure and includes the power of the court to allow amendments to the pleadings, and thus to permit the trial of issues; which were not in the court below. Simpson v. R., W. & O. Railroad Co., 48 Hun, 113 ; 15 St. Rep. 539. For the reasons herein-before given, we have not deemed it necessary to refer to the evidence given on the trial before the justice.

The action was properly continued against the personal representative of the original defendant. 2 Rev. St. p. 114, § 5 ; CodeCiv. Proc. § 757. The judgment should be reversed and a new trial granted in the county court, costs to abide the event

All concur.  