La Rue v. Smith

• Decision Date: 05 October 1897
• Citation: 47 N.E. 796,153 N.Y. 428
• Parties: LA RUE v. SMITH.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 428

47 N.E. 796

LA RUE

v.SMITH.

Court of Appeals of New York.

Oct. 5, 1897.

Appeal from supreme court, general term. Third department.

Action by the testator of Francis W. La Rue, executor, against John G. Smith. On plaintiff's death, the executor was substituted. A judgment for defendant was affirmed by the general term (36 N. Y. Supp. 1127), and plaintiff appeals. Affirmed.

W. C. Lamont, for appellant.

John S. Pindar, for respondent.

O'BRIEN, J.

This action was originally brought by the plaintiff's testator in a justice's court to recover damages in the sum of $55 for an alleged trespass by the defendant upon the plaintiff's land. The defendant interposed an answer before the justice, which was supposed to contain a plea of title under section 2951 of the Code. The controversy was then transferred to the supreme court on the same pleadings, and there tried before a referee, who ordered judgment for the defendant, and dismissed the complaint, with costs. This judgment has been affirmed at general term.

No appeal lies to this court from such a judgment, unless it appears that the title to real property was involved, and it is difficult to see how it was. The complaint alleges that the plaintiff was, and for 30 years had been, the owner, and in possession, of a parcel of land, which is described as bounded by other lands. On the south of this parcel, the lands of one Schuyler, then deceased, adjoined. The complaint then states that on the 18th day of November, 1890, the defendant wrongfully entered on plaintiff's land, trod down the grass, dug up the ground, dug holes, and set posts in the ground, and unlawfully and wrongfully erected a fence on plaintiff's land, and otherwise injured the premises. The defendant first denied the allegations of the complaint, and then alleged that he was the agent of the owners of the Schuyler property lying to the south, and adjacent to the lands described in the complaint; that at the time and place mentioned in the complaint he was engaged in erecting a line fence between the two properties, or that part of the line fence which the owners of the Schuyler and were bound to maintain; that in so constructing the division fence, even though they touched upon the plaintiff's premises, and even though one-half of every post hole for said fence was upon the plaintiff's land, he committed no trespass; and that the lawful act of constructing said division fence constituted the trespass set forth in the complaint.

Upon these pleadings, the case could have been tried before the justice. The defendant made no claim of title to any part of the land which the plaintiff alleged that he owned. He simply claimed that the parties for whom he acted as agent owned adjoining lands on the south,-a fact which the plaintiff had also alleged, and was therefore admitted. The only point in controversy was with respect to the precise location of the division line, and that involved a question of fact. The plaintiff could have maintained the action by proof that he was in possession of the lands described in the complaint, and that the defendant had wrongfully entered upon them. The general denial in the answer put in issue only the fact of plaintiff's possession and a wrongful entry by the defendant. It did not necessarily raise any issue with respect to the title to land. The action involved no question, save that which the ordinary action of trespass always involves, namely, an injury to the plaintiff's possession. The plea of title, which, under section 2951 of the Code, requires the justice to enter judgment of discontinuance in the action, means some affirmative unequivocal assertion on the part of the defendant of title to the locus in quo, or some part thereof. A general denial to the complaint, which avers possession or ownership, or both, in the plaintiff, and a wrongful entry by the defendant, does not necessarily put the plaintiff to proof of title, or require such proof from the defendant. An action based upon such pleadings is generally possessory in its nature, and may be tried and determined, irrespective of any question of title. Dewey v. Bordwell, 9 Wend. 65; Bowyer v. Schofield, 1 Abb. Dec. 177; Koon v. Mazuzan, 6 Hill, 44;Adams v. Rivers, 11 Barb. 390.

The justice was not ousted of his jurisdiction over the case in consequence of anything appearing in the answer, and his judgment dismissing the action, on the ground that a plea of title and been interposed, could have been reviewed upon appeal. If the pleadings, as made up before the justice, raised no question of title there, the same pleadings had no different effect when the action was transferred by the decision of the justice to the supreme court. When an action of this character has been improperly dismissed by a justice of the peace, under an erroneous view as to what constitutes a plea of title, and the plaintiff submits to the decision, and files his complaint in the supreme court, he must be regarded as voluntarily abandoning the suit before the justice, and the action in the supreme court should be treated as originally commenced there, since that court has general jurisdiction of all such actions. The action, therefore, can properly be treated for all purposes as one brought by the plaintiff in the supreme court to recover damages for an injury to real property. The judgment appealed from was rendered prior to the last day of December, 1895, and is to be reviewed here according to the law as then existing. Code Civ. Proc. § 190. The jurisdiction of this court must therefore depend upon the question whether the action is one affecting the title to real property, or...