Launitz v. Barnum — 6 N.Y. Super. Ct. 637

Majority

p. 637

Launitz v. Barnum.

Headnote

An issue on a license to do an act on real estate, which would otherwise be a trespass, does not present for trial “ a daim of title to real property.”

In an action of trespass, where the only justification is a license, the plaintiff must pay the costs of the suit, unless he recover at least fifty dollars damages. (Before Sanbnorb and Mason, J. J.)

June 27, 1851.

Appeal from chambers. The complaint charged that defendant wrongfully entered into plaintiff’s house, 586 Broadway, and bored holes through the roof-timbers, and nailed braces and bolts upon the roof, and attached a rope to the roof, from which the defendant suspended a flag or sign of an exhibition.

The answer denied that the defendant wrongfully entered and committed upon the'premises the acts charged. It then stated

p. 638

that what he had done was done “ by and with the permission and consent of a person in the occupancy and possession of the premises, having the power to give such consent and permission.” The reply, putting in issue the consent, also* denied that any person in the possession or occupation of the premises, had the authority or lawful right to give such consent.

At the trial, it appeared that the plaintiff’s tenant of the house gave the defendant permission to erect a fixture on the roof, from which to suspend a flag or canvas sign of some public exhibition. As the lease gave the tenant no authority to do this, the question at the trial was one of damages merely, and the jury gave the plaintiff a verdict for six cents. Upon this the defendant claimed costs, and the clerk entered a judgment in his favor for the costs of the suit. The plaintiff moved at chambers to correct the judgment by striking out the award of costs to the defendant, and inserting a recovery in his favor for the same. The motion was granted, and the defendant appealed from the order.

O. T. Cromwell, for the defendant

W. Pochard, for the plaintiff.

The answer does hot put the plaintiff’s title in issue at all. It sets up a license to do the act charged as having been a trespass, from the occupant" of the premises. The denial that the act was wrongful is founded on the allegation of consent. The reply traverses the right of the occupant to give such a consent, as well as the consent itself. There were two issues made, viz., the fact of consent or license, and the right to give it. There was no “ claim of title.to real property,” (Code, § 301,) made in the pleadings, or came in question at the trial. The license set up was a very different thing from a claim of title. (See 18 Wend. 579 .) The clerk was right in entering judgment for costs in favor of the defendant, and the order appealed from must be reversed. (All the justices concurred, except Paine, J., who was not present at the consultation.) •

Footnotes

(a (a ) The cases of practice reported were decided with the sanction of at least two, and nearly all of them with that of three or more justices of the court.