Powers v. Conroy

Hardin, J. To enable the plaintiff to recover it was only necessary to allege and prove: 1. The actual possession of the premises. 2. Wrongful entry by the defendants. 3. The damages. [86] A general denial of these allegations, and evidence confined to them, would not have presented upon the pleadings or upon the trial the title to real property, nor “ a claim of title ” (7 Wend., 495; 15 Abb., 449). But the defendant alleged a right to interfere with the plaintiff’s possession. The referee certifies “ it was a disputed and litigated question as to whether the- plaintiff was or not a tenant or trespasser upon the premises; ” and he also certifies “ it was disputed as to whether the rent was paid up till the Saturday following the Tuesday when the cause of. action arose.” It thus appears that the trial was not upon the question of actual possession of the plaintiff of the premises, but the plaintiff’s right to the possession was challenged and disputed or brought in question upon the trial, and that question was determined by the referee in favor of the plaintiff. • The issue made by the plaintiff in respect to plaintiff’s right of possession brought “ a claim of title to real property in question at the trial” (Code, § 304). In Wile agt. Quackeribuss (6 Hill, 538), Beardsly, J., Clearly points out the distinction between an issue as Aactual possession and an issue as to the right of possession, and declares that the issue as to the right of possession involves a question as to a claim of title to real property. The same principle has been asserted in numerous other cases, and controls the question presented here (Rathbone agt. McConnell, 20 Barb., 311; S. C. affirmed, 21 N. Y., 466; Powell agt. Reese, 8 Barb., 567; Brownell agt. Kelly, 10 How., 406 and 414; Muller agt. Beyard, 15 Abb., 449; Main agt. Cooper, 26 Barb., 468; 25 How., 289; Croven agt. Price, 53 Barb., 443). The. plaintiff is entitled to the costs of the action, and the motion is, therefore, denied. Ordered accordingly.