Opinion
December, 1895.
Moses Weinman, for appellant.
Chas. J. Hardy, for respondents.
The order affects a substantial right and is, therefore, appealable to this court. McNamara v. Nolan, 13 Misc. 76; 68 N.Y. St. Repr. 229.
The action was for "forcibly and wrongfully entering and taking possession on February 1st, 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 1st, 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 and 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 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 the plaintiffs' lease expired." Bloomingdale v. Steubing, 12 Misc. 429. Obviously, the allegation of the complaint that the plaintiffs as lessees were "entitled to the full possession of" the demised premises was a conclusion of law, immaterial and not traversable. Scofield v. Whitelegge, 49 N.Y. 259. Hence, its denial by the defendant created no issue. People ex rel. Purdy v. Commissioners of Highways, 54 N.Y. 276. The answer expressly admitted the plaintiffs' title and right of possession as lessees 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 damages ( Utter v. Gifford, 25 How. Pr. 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.
DALY, Ch. J., and PRYOR, J., concur.
Orders of General and Special Terms below reversed, with costs.