
    Henry T. Trevett et al., Resp’ts, v. Wesley Barnes et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Appeal to the court op appeals—When an action affects the TITLE TO REAL PROPERTY, WITHIN CODE ClV. PRO., § 191, SUBD. 3.
    To entitle an action for a sum of money less than $500 to he appealed to the court of appeals it must itself affect the title to real property or some interest therein. It is not enough that the action relates to real property or in some way affects it.
    2. Same—When a judgment does not affect title to or interest in REAL ESTATE.
    In an action for damages done to a certain dam by the defendants floating logs down the stream, the plaintiffs alleged that they were owners in fee and had the right to use the waters of the creek. The defendants set up no title in themselves to real estate or interest therein. They claimed title in a third party with whom they did not connect themselves. Held, that the judgment herein did not affect the tille to real estate or an interest therein.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      Edgar T. Brackett, for app’lts; J. S. L’Amoreaux, for resp’ts.
    
      
       See 36 Hun, 646, mem.
      
    
   Peckham, J.

The plaintiffs brought this action to recover damages sustained by them as alleged in their complaint, by reason of injuries inflicted by defendants upon a certain dam,° which they alleged in one count of their complaint they were owners of in fee, and in another that they had the right to use the water in Hans Creek, and that the defendants negligently and unnecessarily flooded the stream and washed out and destroyed the plaintiffs’ dam, etc. The defendants took issue in their answer upon the question of ownership of the dam and the right to use the waters of the creek, and denied any negligence and pleaded a license from the riparian owners to float logs down the stream and that they used ordinary care. They set up no title in themselves to any real estate or interest therein.

Upon the trial plaintiffs gave evidence upon the question of their title to the dam, but the defendants claim that they failed to show any title, and they say on the contrary that they (defendants), showed title in a third party, with whom, however, they did not connect themselves.

The verdict was for $400 damages, and judgment was entered for that sum with costs, and it having been, affirmed upon defendants’ appeal, by the general term, defendants have appealed here.

The appeal must be dismissed for lack of jurisdiction in this court to hear the same. By subdivision 3 of section 191 of the Code, an appeal involving less than $500, exclusive of costs, cannot be taken to this court, “ except in an action or special proceeding affecting the title to real property, or an interest therein,” unless upon' conditions not complied with herein.

It is not enough that the action relates to real property or, in some way, affects it; it must itself affect the title or some interest therein. Nichols v. Voorhis (74 N. Y., 28); Scully v. Sanders (77 id., 598). This judgment does neither. As the defendants claimed no title themselves, there was no dispute upon that point, and the judgment affects no title in that regard. They claimed that, as between the plaintiffs and some third party, the title was in the latter; but they claimed and proved no privity with such party. The judgment is no evidence of title in the plaintiffs as against such third party, and does not affect it as to him. That it may conclude the defendants upon the question of the title being in the plaintiffs is no answer, for within the meaning of the Code upon this subject the judgment cannot be said to affect the title to real estate in such an action as this, where the defendants make no claim to any title, and simply assert it exists in a third party with whom they are not in privity, for in such case the title remains wholly unaffected by the judgment.

For these reasons the appeal from the judgment must be dismissed, with costs.

All concur.  