
    (87 Hun, 533.)
    GOULD v. PATTERSON.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    Appeal erom Justice op the Peace—Title to Real Estate—Jurisdiction.
    Code Civ. Proc. §§ 2951, 2952, 2954, provide how defendant may have discontinued an action before a justice which he claims will involve a question of title to real estate. Section 2955 provides that, if defendant does not take such steps, the justice has jurisdiction, and defendant is precluded from drawing the title in question. Section 2956 provides that if, nowever, it appears on the trial, from plaintiff’s own showing, that title is in question, and the title is disputed by defendant, the justice must dismiss the complaint. Helé that, where defendant did not take steps for a discontinuance, failure of the justice to dismiss, though title was brought In question and disputed, did not render his judgment void for want of . jurisdiction, but merely erroneous, and the county court could try the case, including the question of title, on appeal, it being provided by section 3071 ' that, on such appeal, all proceedings are the same as if the action had been commenced there, except as otherwise specifically provided.
    Appeal from Livingston county court.
    Action by Jonathan L. Gould against Florence E. Patterson, as administratrix of George Patterson, deceased, for trespass. From a judgment dismissing the complaint, plaintiff appeals.
    Reversed.
    Argued before LEWIS, BRADLEY, WARD, and WERNER, JJ.
    Charles D. Newton, for appellant.
    E. G. Olney and S. M. Norton, for respondent.
   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 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, 18 N. Y. Supp. 332.

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 title to real property was in question, which title was disputed by the defendant, and that the same so appeared and was disputed on the trial in the justice’s court. 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 Ms answer, denied the allegations of the complaint, and alleged title and possession in himself to the land where the trees stood, and from which they were taken. Upon the trial in the county court, the plaintiff gave evidence of title to the locus in quo, and that question was; litigated. .This could have been" legitimately done there if the. action- had .been originally commenced 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 jn,stice?s,.,court did pot. deny to. ..the county court the right to determine it upon the merits, although title to the real estate wqs 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 application 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 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 manner provided by the statute. Code Civ. Proc. §§ 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 trial, from the 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 determination 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 only, for error. Id. § 2956; Koon v. Mazuzan, 6 Hill, 44; Bowyer v. Schofield, 1 Abb. Dec. 183, *41 N. Y., 633; White v. Place, 40 Hun, 481; Milbanks v. Coonley (Sup.) 2 N. Y. Supp. 167. A different question arises when the justice’s judgment from which appeal for a new trial is taken is void. Then there is no judgment 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 was 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 case 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 of title to real property. Gould v. Patterson, 63 Hun, 575, 18 N. Y. Supp. 332. 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 Ho 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 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 comity 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. áppeál 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 sections 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. Railroad Co., 48 Hun, 113. For the reasons hereinbefore 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; Code Civ. Proc. § 757. The judgment shoxxld be reversed and a new trial granted in the county court, costs to abide the event. All concur.  