
    WARREN v. BUCKLEY.
    
      N. Y. Supreme Court, Third Department; Troy Special Term,
    
    
      March, 1877.
    Extba Allowances.
    In an action for trespass to real property, where the complaint states that the title to the land is involved, and this is put in issue, and it appears on the trial that the question of title is the paramount object of the action, an extra allowance granted to the successful party may be computed upon the value of the property instead of on the amount of .damages.
    
    In such an action where the complaint demanded $100 damages, and the value of the property was $3000, an allowance of $100 was granted on a dismissal of the complaint.
    Motion by the defendant for an additional allowance of costs under section 309 of the Code.
    This action was brought by Stephen E. Warren and others against Peter H. Buckley.
    The plaintiffs in their complaint allege, in substance, that they are seized in fee and possessed of the premises therein described, and that the defendant wrongfully entered thereon and dug up and removed a quantity of earth and fence posts, wrongfully claiming the right so to do. The plaintiffs in the complaint demanded one hundred dollars damages, and therein stated that the title of the plaintiffs in and to the land was involved in the action. The defendant by his answer put at issue all the material allegations of the complaint, and set up, as an affirmative defense, that the premises where the alleged trespasses were, by the plaintiffs, claimed to have been committed, were and are a public highway, adjacent to the lands of the defendant, who possessed the lawful right to use such highway in going to and from his land.
    The cause was noticed for trial and placed upon the circuit calendar, and when regularly reached the complaint wap dismissed with costs.
    
      B. H. Hau, for the motion.
    
      Hsek Bowen, opposed.
    
      
       Compare Ogdensburg, &c. R. R. Co. v. Vermont, &c. R. R. Co., 63 N. Y. 176; People v. N. Y. & Staten Island Ferry Co., 7 Hun 105; Struthers v. Pearce, 51 N. Y. 365.
    
   Ingalls, J.

Independent of the allegation in the complaint, “that the title of the plaintiffs in and to said land is involved in the action,” it is clearly shown that such title constituted the paramount subject of investigation, and that the plaintiffs instituted the action to establish their right to the exclusive possession of the land, and not to recover compensation for a comparatively trifling trespass; and this involved necessarily a question as to the title, and consequently the subject-matter of the action was the land (Powers v. Conroy, 47 How. Pr. 84; Ehle v. Quackenboss, 6 Hill, 537). The cases referred to recognize a broad distinction, in this respect, between an action of trespass to recover damages based upon actual possession and an action which involves the right to the possession of land. In the latter case a question of title is involved, but not in the former, as title is presumed.

Section 309 of the Code provides that the court may make a further allowance to any party, not exceeding five per cent, upon the amount of the recovery or claim, or subject-matter involved.

Concluding that the subject-matter1 involved was the title to the land, and its value being shown to be two thousand dollars, that furnishes the basis for a calculation in determining the amount of the allowance, and, considering the nature of the action and the investigation and preparation necessary for such a trial, I think one hundred dollars not an unreasonable sum in addition to taxable costs (see also S. & W. R. R. Co. v. McCoy, 9 How. Pr. 340).  