
    TAYLOR v. WRIGHT.
    (Supreme Court, Appellate Division, Third Department.
    January 17, 1899.)
    Costs—Grounds op Taxation—Issue as to Real Property.
    Under Code Civ. Proe. § 3235, providing that where an action brought before a justice of the peace has been discontinued on a showing that the title to real property will come in question, and a new action for the same cause has been brought in the proper court, the successful party is entitled to costs, except that, where judgment is rendered in favor of defendant on the trial of an issue of fact, plaintiff is entitled to costs, unless it is certified that the title to real property came in question on the trial, defendant was entitled to such certificate, and to his costs, in an action of trespass so brought, where plaintiff’s alleged title was put in issue by denials, both general and specific, and by allegations of title in others, and where plaintiff produced evidence to prove such title, though the complaint was dismissed, on motion of defendant, at the close of plaintiff’s case.
    Appeal from special term, Schoharie county.
    Action by Elizabeth C. Taylor against Charles Wright. On motion of defendant, at the close of plaintiff’s case the complaint was dismissed. From an order denying his motion for a retaxation of costs (53 N. Y. Supp. 423), which had been taxed by the cleric in favor of plaintiff, defendant appeals.
    Reversed.
    This is an action of trespass, commenced in the justice’s court. The defendant interposed a plea of title. The plaintiff discontinued, and thereafter brought her action in the supreme court. In the plaintiff’s complaint she alleged that she was the owner and in possession of a certain described farm and premises situated in the town of Esperance, Schoharie county. She then alleges various acts of trespass upon the part of the defendant. The defendant, in his answer, first denies each and every allegation contained in the complaint, and for a further answer alleges that at the times alleged in the plaintiff’s complaint he was the commissioner of highways of the town of Esperance, Schoharie county, and was acting as such at the time of the commission of the alleged wrongful acts stated in the plaintiff’s complaint. He further alleges that the plaintiff was not the owner of the lands, soil, and freehold where the trespass was committed, but that the premises were owned by John. Enders, deceased, and his grantees; and also denies that plaintiff was in possession of such premises; and further alleges that the place' where such trespass was committed was used by the public in common for more than 20 years, and was owned by the public, and not by the plaintiff. Upon the trial the plaintiff gave documentary evidence of her title to the farm and premises described in the complaint, but upon her own oral examination it appeared that she had not been in actual possession of the premises for a number of years, and was not in actual possession of such premises at the time of the alleged trespass, but that at such time said premises were in the possession and occupation of a third party, holding under a lease. At the close of the plaintiff’s evidence; the defendant moved to dismiss the complaint, which motion was granted by the court, upon the ground that the plaintiff had not proved possession in fact under the allegation in her complaint, which the court held was an essential allegation for her to prove. Defendant’s counsel asked for an order permitting him to tax the costs without being-compelled to go to the special term. The court refused to determine the question at that time. Subsequently, the parties appeared before the county clerk, and each requested hint to tax their costs. Against the objection of the defendant, the clerk taxed costs in favor of the plaintiff. The defendant thereupon moved before the court at special term, held by the same justice who tried the case, for a retaxation of such costs in favor of the plaintiff, and for a direction that the clerk tax defendant’s costs against the plaintiff, or for a certificate, under section 3235 of the Code of Oivil Procedure, that title to real property came in question upon the trial. The court denied the motion, and from such order the defendant appeals to this court.
    Argued before PARKER, P. J., and LAHDOH, HERRICK, PUT-HAM, and MERWIH, JJ.
    William C. Lamont, for appellant.
    A. B. Coons, for respondent.
   HERRICK, J.

Section 3235 of the Code of Civil Procedure reads as follows:

“Where an action, brought before a justice of the peace, or in a district court of the city of New York, or a justice’s court of a city, has been discontinued, as prescribed by law, upon the delivery of an answer, showing that title to real property will come in question; and a new action, for the same cause, has been commenced in the proper court; the party in whose favor final judgment is rendered in the new action, is entitled to costs; except that, where final judgment is rendered therein, in favor of the defendant, upon the trial of an issue of fact, the plaintiff is entitled to costs, unless it is certified that the title to real property came in question on the trial.”

Under this section, can it be said that the title to real property came into question upon the trial? In this case the question of title was squarely raised by the pleadings; it was alleged in the complaint; it was put in issue by the general denial in the defendant's answer; it was’ also specifically denied in another portion of his answer; the title was furthermore alleged to be in a third party; and the title to the particular place where the trespass occurred was alleged to be in the public, for their common use and benefit. While it is true that the plaintiff might maintain an action of trespass by showing "actual possession and occupation' alone, without alleging or proving title, yet, under such allegation and proof, she could not recover for damages to the freehold. In this action she not only alleged title,- and gave evidence of it, but claimed upon the trial that the trespass constituted an injury to the freehold, and the court held that the evidence given, being uncontroverted, was sufficient to prove title. The fact that at the close of the plaintiff’s case the defendant moved to dismiss the complaint, offering no evidence in his own behalf to controvert any of the evidence given by the plaintiff, does not warrant us in saying that the title to real property did not come into question upon the trial. For the purposes of this section of the Code, it seems to me that whenever, under the pleadings, it becomes necessary for the plaintiff- to prove, and he does, upon the trial, give evidence of, title, it may be fairly said that such title came in question-upon the trial. Those matters come in question upon the trial that are alleged in the complaint, controverted by the answer, and which the plaintiff gives evidence of to maintain his cause of action. The fact that the plaintiff gives insufficient evidence to maintain bis complaint, and that thus the defendant is relieved from the necessity of giving any evidence -to contradict that given by the plaintiff, does not change the situation, and remove those matters which have been pleaded, and evidence of given, from the category of matters that came in question upon the trial. It seems to me, therefore, that the defendant is entitled to a certificate in accordance with section 3235, and to his costs. This is in harmony with the case of Gates v. Canfield, 28 Hun, 12, Saunders v. Goldthrite, 41 Hun, 242, and of Morse v. Salisbury, 48 N. Y. 636, and is not in conflict with the case of Ehle v. Quackenboss, 6 Hill, 537, or of Rathbone v. McConnell, 21 N. Y. 466. In the case of Ehle v. Quackenboss, 6 Hill, 537, there was no evidence of title given upon the trial, and in Rathbone v. McConnell there was no claim or evidence of title.

Order reversed, with $10 costs and disbursements of this appeal, and motion for certificate granted, with $10 costs. All concur, except PUTNAM, J., not voting.  