Horton v. Jordan 11 N.Y.S. 2

Horton v. Jordan.

(Supreme Court, General Term, Second Department.

July 18, 1890.)

Costs—Action Involving Title to Land.

A complaint alleged that plaintiff was the owner of certain premises, on which was a pond, and that defendant wrongfully entered plaintiff’s premises, and removed from said pond large quantities of ice, and converted the same to his own use, etc. The answer was a general denial, and the question of plaintiff’s title was gone into at the trial. Meld, that the trial judge properly certified that title to real property came in question, within Code Civil Proc. ÍT. Y. _§ 8228. subd. 1, providing that plaintiff is entitled to costs, of course, on the rendering of a final judgment in his favor, in “an action triable by jury, * "* * in which á claim of "title to real property arises upon the pleadings, or is certified to have come in question upon the trial. ”

Appeal from special term, Dutchess county.

Action by Mary B. Horton against Joseph Y. Jordan. The complaint alleged that plaintiff was the owner of certain premises, upon which was a certain pond of water known as “Horton’s Pond,” and that defendant wrongfully entered upon plaintiff’s premises, and removed from said pond large quantities of ice, and converted the same to his own use, to plaintiff’s damage $150. The answer was a general denial. There was a verdict for plaintiff. The question of title was gone into exhaustively, and a motion for a certificate to the effect that the title of real property came in question was granted. Defendant thereupon moved at special term to vacate the certificate, and now appeals from an order denying the motion. Code Civil Proc. § 3228, subd. 1, provides for allowance to plaintiff of costs, of course, upon the rendering of a final judgment in his favor in “an action triable by a jury * * * in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial.”

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Herrick & Losey, for appellant. Thompson & Lown, for respondent.