
    Michael E. Dunster et al., App’lts, v. Patrick Kelly, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed March 6, 1888.)
    
    1. Costs—Pleadings—What matters put in issue by.
    The plaintiffs and the defendant were owners of adjacent premises. This action was brought to recover damages for injuries alleged to have been sustained by reason of smoke, dust and dirt emitted upon their premises through stove-pipes which the defendant had inserted into the wall between theii premises. The answer admitted title to the premises as alleged in the complaint, but denied the damage complained of. As a defense, the answer set up that the holes through which the pipes were inserted were built into the wall when the houses were built, and had been in use for more than twenty years; that the wall was a party wall, and the chimney intended for the use of those occupying the defendant’s premises The jury gave the plaintiff a verdict for six cents damages. The plaintiff objected to the taxation of a bill of costs for the defendant, on the ground that the pleadings raised a claim to title of real property, and that they were entitled to costs'. Held, that the only material issue raised by the pleadings was whether the plaintiffs were injured by the acts of the defendant, and that the fact that the wall from which the smoke, dust and dirt were emitted was a party wall, was immaterial, and furnished no defense.
    3. Same—Title to land when not in issue.
    
      Held, that if this fact were material, the title to the wall or any part of the plaintiff’s premises was not put in issue, as the answer admitted the allegations regarding the ownership of premises described in the complaint. The defendant was entitled to have his costs taxed and plaintiff was not entitled to costs.
    Appeal from an order of the special term, denying the plaintiff’s motion for an order vacating and setting aside the taxation of the defendant’s bill of costs, and directing him to tax the plaintiffs’ bill of costs.
    The plaintiffs and the defendant were owners of adjacent premises. This action was brought to recover damages for injuries alleged to have been sustained by reason of smoke, dust and dirt emitted upon their premises through stovepipes which the defendant had inserted in the wall between the premises. The answer admitted title to the premises, as alleged in the complaint, but denied the damage complained of. As a defense, the answer set up that the holes through which the pipes were inserted were built into the wall when the houses were built, and had been in use for more than twenty years; that the wall was a party wall, and the chimney intended for the use of those occupying the defendant’s premises. The jury gave the plaintiff a verdict for six cents damages. The clerk taxed a bill of costs for the defendant, but refused to tax the plaintiffs bill of costs.
    
      Herbert F. Andrews, for app’lts; William H. Sage, for resp’t.
   Truax, J.

The only material issue raised by the pleadings was, were the plaintiffs injured by the acts of the defendant? The allegation in the answer that the wall between plaintiffs’ premises and defendant’s premises was a party wall, was an allegation of an immaterial fact, because, if the allegation that the plaintiffs were injured by the emission of smoke, dust, and dirt, from the defendant’s premises, upon theirs, was true, it was no defense that such • emissions were made from a party wall.

If the defendant by the allegation that the wall had been in use more than twenty years, meant to allege that he had a license to do the acts complained of, that allegation would not raise a question of title. Rathbone v. McConnell, 21 N. Y., 466; Muller v. Bayard, 15 Abb., 449; Mechl v. Schwieckart, 67 Barb., 599.

But even if we consider the allegation, that the wall was-a party wall, to be a material allegation, it did not put in issue the title to the wall, or to any part of plaintiffs’ premises, for it was admitted by the answer that the plaintiffs, owned the premises claimed by them in the complaint, and that the defendant owned the premises “adjoining the said premises of the plaintiffs,” and the premises were described in the complaint, and the description was admitted by the answer.

If plaintiffs had only the right of possession, they were entitled to recover damages for the injury that the evidence showed they had sustained to their right of possession. No-damage to the freehold is alleged in the complaint.

In Kelly v. N. Y. and Man. B. R. R. Co., 81 N. Y., 233, and Green v. The Village of Canandaigua, 30 Hun 306 (actions for trespass, guare clausam fregit), the complaints alleged that the plaintiffs were owners of the property which, it was alleged, the defendants had injured, and the answers denied this allegation of ownership.

The order appealed from is affirmed, with costs.

Dugro, J., concurs  