
    Walter W. Taylor, Appellant, v. Thomas Gilleran, Respondent.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Judgment — Rendition—At particular stages of the action — Judgment on dismissal.
    Municipal Courts — Jurisdiction—Actions involving title to real property: Answer of title; Title coming in question at trial.
    Where an action is brought in the Municipal Court by the owner of premises taken for municipal use to recover the amount of the award which was paid to defendant as owner of the premises, the court retains jurisdiction unless the defendant in addition to a denial of plaintiff’s title files the undertaking required by section 180 of the Municipal Court Act; but, if upon the trial it appears by plaintiff’s own showing that the title to real property is in question, the complaint must be dismissed with costs, though the required undertaking was not filed.
    Where upon the trial defendant not only disputed plaintiff’s title but evidence tending to show that defendant was the owner of the premises was, upon plaintiff’s objection, erroneously excluded, the plaintiff, on appeal from a judgment in defendant’s favor, could not urge that defendant had not disputed plaintiff’s title.
    The judgment of the court below, though properly in defendant’s favor, should have been merely for a dismissal and not upon the merits and is accordingly modified.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Mew York, second district, borough of The Bronx.
    De La Mare & Morrison, for appellant.
    M. & B. Jaffe, for respondent.
   Gildersleeve, J.

Plaintiff brought this action to recover from the defendant the amount of an award paid by the city of New York to the defendant, as owner of certain premises taken for the use of the city. The plaintiff alleged in his verified complaint that he was the owner of the premises, and entitled as such owner to the award. The defendant denied that the plaintiff was the owner of the land in question, setting up such denial in a verified answer. This was, of course, sufficient notice to the plaintiff that the title to land was to come in question, but, standing alone, was not sufficient to oust the court below of jurisdiction, for the reason that the defendant did not file with the court the undertaking provided for by section 180 of the Municipal Court Act. In a case where a defendant sets up in his answer facts showing that the title to land will come in issue (Mun. Ct. Act, § 179), unless the defendant, in addition thereto, files with the court an undertaking as provided (by section 180, the court retains jurisdiction to hear the case; but, if upon the trial it appears by the plaintiff’s own showing that the title to real property is in question, and the defendant disputes such title, the court must dismiss the complaint with costs. Mun. Ct. Act, § 184. In the case at bar, the plaintiff was compelled, in order to maintain his action, to show title to the premises in himself. This title the defendant expressly disputed upon the trial and, in addition thereto, offered evidence showing that he was the owner of the same premises. This evidence was excluded by the trial court, upon plaintiff’s objection, and its exclusion was error. The plaintiff, therefore, cannot now urge that the defendant did not dispute the plaintiff’s title. The judgment in favor of the defendant was proper, but should not have been given upon the merits, but merely as for a dismissal.

Judgment modified by directing that judgment in favor of the defendant for a dismissal of the complaint, with costs, be entered; and, as modified, affirmed, with costs.

MacLean and Seabury, JJ., concur.

Judgment modified, and, as modified, affirmed, with costs.  