
    James W. Farrell, Resp't, v. Seth Hill, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    Costs—Pleading— Claim of title.
    Where a defendant pleads title in an answer not containing a counterclaim, such plea is to be deemed controverted without a reply, and a claim of title to real property arises on the pleadings, and in such case the plaintiff on recovering any judgnnent is entitled to costs without any certificate and although in fact no evidence was offered on the trial on the question of title.
    Appeal from order vacating and setting aside a taxation of costs in favor of defendant, and ordering a retaxation in favor of plaintiff.
    The facts appear in the opinion at special term, as follows:
    Putnam, J.—The plaintiff in his complaint alleged that on March 25, 1892, he was duly possessed and in occupation of the house and premises described, and that defendant wrongfully and unlawfully trespassed and tore up carpets and oil cloths, and removed chairs and tables, and otherwise unlawfully and wrongfully ransacked and despoiled said house.
    Defendant, for answer, (1) denied the material allegations of the complaint, and (2) set up that one Seymour Colson and wife were the owners in fee and possessed of the said premises, and entitled to the right of immediate and actual possession thereto, and were removing their furniture to said dwelling-house, as they had a lawful right to do, and finding in said house some furniture, goods and chattels unlawfully therein, necessarily and carefully removed them from said house; and that defendant, at the request of said Colson, assisted him in such removal, as he had a lawful right to do.
    
      Plaintiff, on the trial, obtained a verdict for five dollars, which, "by order of the court, was increased to fifteen dollars, by virtue of the provisions of § 1669 of the Civil Code.
    Before the clerk on the taxation of the costs each party claimed to recover of the' other the costs of the action. The clerk awarded the costs to the defendant. This motion is made by the plaintiff to review the action of the clerk; plaintiff insisting that he is entitled to recover the costs of the action, although the recovery was less than fifty dollars, under the provisions of subdivision 1 of § 3228 of the Civil Code, on the ground that a claim of title to real property arose upon the pleadings. No certificate is produced that a claim of title to real property in fact arose upon the trial.
    If, under the provisions of the Code, a reply were required where the answer set up an affirmative defense not constituting á -counterclaim, and the plaintiff in this case replying to the allegations contained in the answer, as to the title of Seymour Colson .and wife to the premises in question, had denied such allegation, it would not be doubted but that a claim of title to real property .arose on the pleadings. Dinehart v. Wells, 2 Barb., 432.
    But inasmuch as the answer did not contain a counterclaim no reply was required, and the allegation setting up title in the Col-sons is to be deemed controverted by the plaintiff. Section 522, Civil Code.
    To the allegation of the defendant asserting the title of Seymour Colson and wife to the premises in question the statute interposes a denial on the part of the plaintiff. The statute created a legal issue as to the Colson title.
    Coming down to the trial on such pleadings defendant would be compelled to prove his allegation of title just the same as if a reply were served denying such allegation. I think, therefore, where a defendant pleads title, which by statute is deemed denied by the plaintiff, a claim of title to real property arises upon the pleadings. The question raised in this case was settled in this district long since in the case of Lillis v. O'Conner, 8 Hun, 280. The action was assault and battery, and the defense was (1) general denial and (2) son assault demesne, (3) justification in defense of defendant’s possession of his own property. Justice Bockes gave the opinion of the general term, and, referring to Dinehart v. Wells, supra, remarked: “ Under the Code no reply to the defendant’s answer was admissible, Code, § 153, and the third defense was to be deemed controverted by the adverse party as upon denial or avoidance. Sec. 168. The two cases are, therefore, precisely alike as regards the pleading. Thus, in the case in hand, according to the decision in Dinehart v. Wells, and in legal logic, a claim of title to real property was raised on the pleadings. The defendant tendered the issue by his answer; a reply was inadmissible; but the new matter interposed as a defense was by the Code to be. deemed controverted 1 as upon direct denial or avoidance.’ Sec. 168.”
    The above authority, I think, has not been questioned, but is referred to in Lynk v. Weaver, 128 N. Y., 177; 40 St. Rep., 349, and must be deemed to settle the law in accordance with the views above suggested. The case of Lynk v. Weaver, supra, referred to by counsel for defendant, is not parallel to the case before us. In that case the plaintiff in his complaint claimed title to the premises described. The answer contained no denial of his title, and the court held that where, “ viewing all the pleadings, there is no issue or dispute about the title, in no legal sense can it be said that a claim of title arises upon the pleadings. The phrase has reference to a case where both parties in the pleadings claim the title, or where one claims it and the other disputes it”
    In the ease before us the defendant pleaded title in the Col-sons. The allegation is deemed denied by the complaint, thus raising a direct issue upon the claim of title.
    Of course, under the provisions of subdivision 1, § 3228, Civil Code, where an issue as to a claim of title to real estate is thus raised by the pleadings, the plaintiff recovering any judgment is entitled to costs without any certificate, and although, in fact, no evidence -was offered on the trial on the question of title.
    An order should be entered directing retaxation of costs, and that the clerk, on such retaxation, allow to plaintiff the costs of the action, with ten dollars costs of this motion.
    
      Miner & Hill, for app’lt; Charles M. Davison, for resp’t.
   Herrick, J.

I think this case should be affirmed, with costs and disbursements, on opinion of special term.

Mayham, P. J., concurs; Putnam, J., not acting.  