Kelly v. New York & Manhattan Beach Railway Co.

Rapallo, J. The complaint alleged title in the plaintiff, as well as possession, and both allegations were specifically put in euiss by the answer. It is contended, however, that inasmuch as title in the defendant was hot set up, but only a license from the plaintiff was alleged, and proof of possession in the plaintiff would have sufficed to maintain the action, the issue upon the question of title was immaterial. This position might be sound if the complaint claimed damages only for the entry and invasion of the plaintiff’s possession, but,such is not the case. It claims damages for injury to the freehold by the deposit of earth, sand, and rubbish thereon. To entitle the plaintiff to recover for the injury to the freehold, it was necessary to allege and prove his title. The case is a close one, but we think the preponderance of the argument is in favor of the position of the General Term, that the question of title arose upon the pleadings, and a certificate that it arose upon the trial was consequently unnecessary to entitle the plaintiff to costs. The order should be affirmed. All concur. Order affirmed.