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Bloomingdale v. Steubing

70 N.Y. St. Rep. 718 Court N.Y.C.P. Decision date 1895-12-02 English

Delivered by Bischoff, J.—

Contents

Majority

p. 718
Lyman G. Bloomingdale et al., Resp’ts, v. Henry Steubing, App’lt.
(New York Common Pleas, General Term,
Filed December 2, 1895.)

Headnote

1. Appeal—Appealable order.
An order, reversing the clerk’s taxation of costs, affects a substantial right, and is, therefore, appealable.
2. Costs—Claim to real estate,
Where, in an action for forcibly and wrongfully entering and taking possession of certain premises, the answer expressly admits the plaintiff’s title and right of possession as lessees, the issue, being wholly with regard to the terms and extent of the license from the plaintiff to the defendant, presents no claim of title to real property within the meaning of subdivision 1, section 3228 of the Code, so as to entitle the plaintiff to the costs of the action, notwithstanding the recovery was less than fifty dollars for damages.
Appeal from an order of the city court, reversing the clerk’s taxation of costs.
Moses Weinman, for app'lt; Chas. J. Hardy, for resp’t.

The order effects a substantial right, and- is, therefore, appealable to this.court. McNamara v. Nolan, 68 St. Rep. 347 .

The action was for “forcibly and wrongfully entering and taking possession on February 1, 1892, of certain premises, 160, 162, East Fifty-Ninth street, in the city of New York, of which plaintiffs were the lessees, under a lease from the defendant, expiring May 1, 1892,” and resulted in a verdict in favor of the plaintiffs for six cents damages. It was conceded by the pleadings that, “by agreement between the parties, the defendant was allowed to enter and take possession, and to try aud find a tenant for the premises for the unexpired term of the plaintiffs’ lease,” and the only issue tried and submitted was “ whether, having permission

p. 719
from the plaintiffs to enter for one purpose,” the defendant “availed himself of such permission for a totally different purpose, to wit, to put the premises in repair for the term commencing after plaintiffs’ lease expired.”

Bloomingdale v. Steubing, 12 Misc. Rep. 429 ; 67 St. Rep. 405 . Obviously, the allegation of the complaint that the plaintiffs, as lessees were “entitled to the full possession of ” the demised premwas a conclusion of law, immaterial and not traversable. Scofield v. Whitlegge, 49 N. Y. 259 . Hence, its denial by the defendant created no issue. People v. Commissioners of Town of Marlborough, 54 N. Y. 276 . The answer expressly admitted the plaintiffs’ title and right of possession as lesseés of the defendant. The issue, being wholly with regard to the terms and extent of the license from the plaintiffs to the defendant, therefore, presented no “claim of title to real property," within the meaning of subdivision 1 of section 3228 of the Code of Civil Procedure, so as to entitle the plaintiffs to the costs of the action notwithstanding the fact that, the recovery was less than fifty dollars "for dainges, Utter v. Gifford, 25 How. Prac. 289;-and, pursuant to.the provisions of section 3229, the defendant was entitled to such costs.

The orders of the general and special terms of the court below, by which the plaintiffs were awarded the costs of the action, are reversed, with costs and disbursements of the several appeals to the defendant. •

All concur.

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