
    William Dehon King and Others, Respondents, v. Eugenia A. Webster Ross, Appellant.
    
      Claim to real property—action to determine it —when the defendant is not entitled, to a jury trial.
    
    A defendant in an action, brought for the determination of a claim to real property, who has answered and appeared upon the trial solely for the purpose of demanding a jury trial, and upon a denial of that demand has withdrawn from further participation in the trial,, is entitled to appeal from a judgment in favor of the plaintiffs.
    Such an action is, in its essential nature, an action to quiet title, and distinguishable therefrom only in the fact that, after the action has been commenced, the law permits the defendant, who is brought in as a claimant, to set up his own title, and provides that,' if he asks for affirmative relief, the subsequent proceedings, including the trial, judgment and execution, are the same as if it were an action of ejectment. Where, however, the answer simply denies that the defendant unjustly claims to own the land, but asks for no affirmative relief, the defendant is not entitled to a trial by jury.
    Appeal by the defendant, Eugenia A. Webster Ross, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 11th day of December, 1897, upon the decision of the court rendered after a trial at the New York Special Term; also from an order made at the New York Special Term and entered in said clerk’s office on the 11th day of December, 1897, denying the defendant’s motion to have the issues in the action tried by a jury, and also from an order made at the New York Special Term and entered in said clerk’s-office on the 15th day of .February, 1898, denying the defendant’s motion for an order disallowing the extra allowance of $1,000 granted in the action, and vacating so much of the judgment entered therein as grants said extra allowance.
    Abram Kling, for the appellant.
    
      George L. Rives, for the respondents.
   Rumsey, J.:

This was an action brought for the determination of a claim for real estate-, the -plaintiffs claiming as the heirs at law of William Henry King, deceased, and alleging that the defendant, Eugenia A. .Webster Boss, unjustly claims to own said lands in fee simple absolute. The complaint asked for a judgment that the defendant, might be enjoined from setting up any claim to be the heir at law of William Henry King, and that she and all persons -claiming-under her might, be barred from any claim to said lands, and that the plaintiffs might be adjudged to be the owners thereof in fee simple. The answer, after containing' certain, denials, admitted that-the defendant claimed to- own said lands in fee simple absolute, but denied that she made such claim unjustly, and for relief she asked simply that the Complaint be dismissed. . Hpon that state of the-pleadings the action came on for trial at a Special Term, The defendant appeared, as is stated in the case, solely for the purpose of'demanding a jury trial, and, upon that demand having been denied,, withdrew from further participation in the-trial, which thereupon proceeded without the further presence of anybody representi-ngthe defendant, and resulted in a judgment for the plaintiffs, from, which this appeal is 'taken.

As the defendant appeared at the trial and took part in it, to some-extent, at least, the judgment was not rendered upon a default, and. the defendant is, therefore, entitled to appeal. The only question. raised by her is whether she was entitled to a jury trial, and if she was not, no reason for complaint is shown upon the record. The action is purely statutory, and is authorized by section 1638 and the subsequent sections of the Code of Civil Procedure, which are substantially a re-enactment of the Revised Statutes upon the same subject. It is iii its essential nature an action to quiet title, and one of which the Courts of Chancery had original jurisdiction to a qualified extent, (Nicoll v. Trustees of Huntington, 1 Johns. Ch. 166 ; Wickliffe v. Owings, 17 How. [U. S.] 47; Holland v. Challen, 110 U. S. 15.) The only difference between the equitable action and this action for the determination of the claims to real property is found in the fact that, after this action has been commenced, the law permits the defendant who is brought in as a claimant to set up his own title and to demand affirmative relief, as in an action of ejectment; and it provides that, when that has been done, if the defendant aslcs for affirmative relief, the subsequent proceedings, including the trial, judgment and execution, are the same as if it were an action of ejectment. (Code Civ. Proc. § 1642.) If, however, the defendant makes no claim for affirmative relief, the action proceeds precisely as any other action to quiet title, and is tried on the equity side of the court at a Special Term and without a jury. The defendant is entitled to a jury trial only if .she alleges facts upon which she bases a claim in her answer that she shall be adjudged to have an estate in the premises, but otherwise she is not entitled to a jury. There is nothing of that kind in this case. The defendant sets up no estate. She simply denies that she unjustly claims to own the land, and she makes no request for any affirmative judgment. She is clearly, therefore, not within that provision of the statute which entitled her to have the proceedings continued as in an action of ejectment, and the ruling of the court at the Special Term was right.

So far as the extra allowance itself is concerned, we can see no reason to interfere with it. It appears that, after the defendant had withdrawn from the case at Special .Term, a trial was had at which testimony was taken, resulting in.a judgment for the plaintiffs. It must be assumed that all necessary facts were made to appear before the court at that trial to warrant it in making every determination which it did make, including the determination as to the amount of an extra allowance.

The judgment must, therefore, be affirmed, with costs.

The defendant also appeals from a subsequent order made at Special Term, denying' the motion to set aside the order granting an extra allowance. The order denying the motion to set aside the allowance was clearly correct. It was simply an effort to obtain from one judge an order overruling the determination of another judge, which was entirely unwarranted. This order must also be affirmed, with costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment and order affirmed, with costs.  