
    Michael E. Dunster et al., App’lts, v. Patrick Kelly, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 16, 1888)
    
    1. Title to real property—When not involved in an action—Trespass-Pleading.
    Where the plaintiffs demanded damages for the acts of the defendant in trespassing upon the plaintiff’s premises hy inserting stovepipes into-their chimneys, thereby causing an excessive amount of smoke, dust an d dirt to flow into the rooms of the plaintiff’s tenants, and rendering them untenantable, the building liable to destruction hy Are, and endangering the lives and property of the tenant,and the plaintiffs alleged that they owned both the land and the building which was affected by defendant, and that the defendant owned the lot of land, and building thereon, adjoining, and the answer admitted these allegations while denying the trespass and injury, and alleged that the wall between the two buildings was a party wall standing partly on each lot and that the chimney is the common-property of both parties; Feld, that the subject of the action is the disturbance of the plaintiffs in the enjoyment of their property; not the ascertainment of the title to the wall. That the plaintiffs’ title or right of possession to real estate is not attacked.
    2. Same—Title—Meaning of.
    “ Title,” as mentioned in the Code means right of possession.
    
      3. Same—Costs—What pleadings must contain under Code Civil Pro., § 3228, surd. 1.
    The Code of Civil Procedure, § 3228, requires the existence in the pleading, of an assertion of a claim of title to realty which if proved will defeat or maintain the action, as the case may he.
    4. Same—When not entitled to costs.
    The plaintiff in this action recovers a verdict for six cents damages. They were not entitled to the costs of the action on the ground that the claim of title to real property arose upon the pleadings.
    Appeal from an order of the general term of the Hew York superior court, affirming the order of special term denying a motion of the plaintiff to set aside the taxation of costs by the clerk, etc.
    On the trial, the jury found a verdict for plaintiffs and assessed the damages at six cents. The facts are stated in the opinion.
    
      Herbert F. Andrews, for app’lts; William H. Sage, for resp’t.
    
      
       Affirming 18 N. Y. State Rep., 370.
    
   Gray, J.

The plaintiffs, having recovered a verdict for six cents damages, claim to be entitled to costs of this action on the ground that a claim of title to real property arose upon the pleadings. Code of Civil Procedure, § 3228.

The trial judge certified that no such claim came in question on the trial, and we think none can be said to have been presented by the pleadings. The complaint demands damages for the acts of the defendant in trespassing upon the plaintiffs’ premises by inserting stove pipes into their chimneys, thereby causing an excessive amount of smoke, dust and dirt to flow into the rooms of plaintiffs’ tenants and rendering them untenantable, the building liable to destruction by fire, and endangering the lives and property of the tenants. It alleges ownership by them of the land: upon which is the building so affected and by the defendant of the lot of land and building thereon adjoining, and the-answer admits these allegations, while denying the trespass and injury. The argument is that as the answer contains an allegation that the wall between the two buildings is a party wall, standing partly on each lot, and that the chimney, into which the stove holes open, is the common property of both parties, a question of title to real property was presented. W e do not think, however, that this portion of the answer raises an issue which must determine the title to any real estate to be in one or the other party, and, under the section of the Code cited, such must be actually the case. The subject of the action is the disturbance of plaintiffs in the enjoyment of their property; not the ascertainment of the title to the wall. The plaintiffs’ title, or right of possession to real estate, is not attacked, for the answer expressly admits the ownership of the property to be as alleged in the complaint. The result of such an action would be to ascertain whether plaintiffs were more or less substantially annoyed by the emission of smoke, etc., from the chimney used by the defendant.

If they were not it was perfectly immaterial to whom the wall belonged. The ownership of the wall exclusively by plaintiffs, or in common with the defendant, could not affect the recovery in such an action. If defendant had a perfect right to the use of the chimney, that would not excuse him if he was responsible for the excessive emission of smoke and dirt upon plaintiff’s premises. “Title,” as mentioned in the Code, under the authorities, means right of possession. Ehle v. Quackenbos, 6 Hill, 537; Heintz v. Dollinger. 28 How. Pr., 39; Rathbone v. McConnell, 21 N, Y., 466. The defendant, by his pleading, did not lay claim to any real estate of the plaintiffs, or to an easement therein. The inquiry was as to a fact which was really immaterial in its bearing upon the result. If the wall was a party wall, then the only question was as to the manner of the use of the chimney therein. If it was the plaintiff’s wall, that ended the matter, and the possession being in them, the question would be as to the injury caused, if any, by the smoke and dirt from defendant’s stove pipes. The plaintiffs were called upon to prove that the defendant was disturbing them in their possession of, and not their rights of possession to property, and if they proved damages resulting from his acts, they would be entitled to recover in their action. We think that a proper application of the rule in the section relied upon by plaintiffs requires the existence in the pleading of an assertion of a claim of title to realty, which, if proved, will defeat or maintain the action, as the case may be. But here the defendant’s pleading suggests no such issue. It goes no further, in legal contemplation, than to oppose plaintiff’s claim for damages by the allegation of a fact which may be perfectly true, and yet not be at all inconsistent with a recovery by plaintiffs. Even if the wall was a party wall, that fact would not be a defense to an improper use of the chimneys by defendant whereby his neighbors were damaged.

Thus the real and only question presented by the pleadings is seen to be whether the defendant interfered with any of plaintiffs’ rights to the enjoyment of their property.

For the above reasons we think the order appealed from ‘was right, and should be affirmed, with costs.

All concur.  