
    Virginia J. Quinn, Resp’t, v. Herman T. Winter, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    1. Costs—Title to heal estate.
    In an action to restrain a nuisance on defendant’s premises, whereby plaintiff’s adjoining premises were rendered uncomfortable, and for damages, the question of title to real estate does not necessarily arise so as to entitle plaintiff to costs on recovery Of less than $50.
    
      2. Same.
    The fact that plaintiff alleged ownership of her premises, .and defendant joined issue thereon, does not raise the question of title, as such allegation was unnecessary, and though made, need not be proved.
    Appeal from order of the general term of the city court of Hew York, reversing order vacating judgment in favor of plaintiff for costs.
    
      Action to restrain defendant from continuing his business as a coal dealer, and for damages alleged to be caused by using an engine on his premises and creating dust and noise, and rendering the adjoining premises owned by plaintiff unfit for habitation, viz., injuring the lives of the tenants, and thereby causing a number of rooms in said premises to remain vacant.
    The complaint alleged that plaintiff was the owner and possessor of the premises adjoining defendant's coal yard. The answer alleges that defendant has no knowledge or information sufficient to form a belief whether plaintiff owns or is the possessor of said premises.
    Plaintiff recovered a verdict for six cents, and thereafter taxed and entered judgment for full costs.
    
      George W. Blunt, for app’lt; T M. Tyng, for resp’t.
    
      
      
         Reversing 25 N. Y. State Rep., 851.
    
   Van Hoesen, J.

The right to costs that a positive statutory provision awards to a party on the happening of a certain event is a substantial right, and an appeal lies from an order that denies such a right. Sturgis v. Spofford, 58 N. Y., 103.

As the plaintiff recovered no more than six cents as damages in an action cognisable by a justice of the peace, the defendant is, under the Code, entitled to costs unless the title to land was brought in question by the pleadings. There is in this case no certificate of the justice that a claim of title arose on the trial. The only inquiry that we are called upon to make is this, did a claim of title arise upon the pleadings ? To that inquiry only one answer can be made. A question of title arises where the plaintiff must prove the ownership of land, in order to succeed, or where he is under the obligation of proving his right to the possession of the land. If it be sufficient for him to show merely that he is in possession without proving either title or his right to the possession of the land, there is no reason for saying that a claim of title is involved in the issue to be tried.

• The plaintiff sought in this action to recover damages because the defendant, by tainting the atmosphere and by loud noises rendered her house unfit for habitation. The nuisance that caused the noise and the pollution of the ah’ was situated upon the land of the defendant. Ho trespass upon the plaintiff’s lands is alleged, but an action of trespass on the case would have been the plaintiff’s remedy under the forms of pleading that prevailed before the Code was adopted. There is no allegation of any injury to the freehold. The injury is necessarily of an intermittent and transient character, for it proceeds from the use of a screen for sifting coal. The disuse of the screen would terminate the nuisance. The use of the screen makes the occupation of the plaintiff’s houses uncomfortable at times, and this action is, as has been said, to recover damages for such discomfort. It was not for the defendant to call in question the right of possession of any occupant of the plaintiff’s houses who had been aggrieved by the nuisance. There is nothing to show that the plaintiff did not herself dwell in one of the houses.

The questions to be litigated are, first, was the plaintiff in possession of the houses ? and, secondly, did the nuisance that the defendant maintained upon his premises seriously annoy her and prevent her full enjoyment of her houses ? The only question then remaining is as to the quantum of damages.

It will be seen that the question of title did not necessarily arise, nor was the plaintiff under the necessity of proving her right to the possession of her houses. As against a wrongdoer naked possession is all that the plaintiff was under obligation to prove; and the person maintaining a nuisance is a wrongdoer. Wood on Nuisances, § 825. It is apparent, therefore, that a claim of title was not part of the issues to be tried.

It is said, however, that the plaintiff herself dragged he question of title into the case by alleging in her complaint that she is the owner of the houses, and that the defendant joined issue upon that allegation. The answer to that suggestion is that the allegation of ownership is unnecessary, and though made, need not be proved. It was otherwise at the common law, for the rule used to be that “a party may, in general, traverse a material allegation of title or estate, to the extent to which it is alleged, though it need not have been alleged to that extent.” Stephen on Pleading, m. p. 248, and note 11 of second appendix.

The court of appeals has decided that that rule is no longer in force and so has the supreme court, so that it must now be considered as settled in the state of New York that by alleging that she was the owner the plaintiff did not bind herself to prove her title, since bare possession was sufficient to maintain her action. The following authorities will be found to support the views that I have expressed. Ehle v. Quackenboss, 6 Hill, 537; Rathbone v. McConnell, 20 Barb., 311; 21 N. Y., 466.

The result of the examination I have made of all the cases cited by Mr. Tyng is to satisfy me that the title to land did not arise upon the pleadings, and that the defendant has a statutory right to the costs of the action.

The order and judgment appealed from must be reversed, with ' costs.

Larremore, Oh. J., and Balt, J., concur.  