Opinion
June, 1915.
Alexander Coblitz, for appellant.
Justus W. Smith, for respondent.
The pleadings in this case were oral, plaintiff claiming for money loaned upon an assigned claim, the answer being a general denial and a counterclaim. Plaintiff filed a bill of particulars in which she set up that her assignor had loaned to the defendant $250, which was needed by defendant to meet her taxes and assessments upon mortgages affecting property, and which sum was to be repaid in the event that a certain loan, which she was then endeavoring to obtain from plaintiff's assignor, should not be made through the fault of defendant or by reason of any incumbrance upon or objection plaintiff's assignor should have to any of the titles to the property mentioned in the agreement which was in writing. It then set forth that by reason of the objection made by plaintiff's assignor to the title to the property said loan was not made, and demanded judgment for said sum. Upon the filing of this bill of particulars the defendant made a motion to dismiss the complaint upon the ground that the court had no jurisdiction of the action as the question of title to land was involved. This motion was denied, and defendant appealed from the order denying the motion. No judgment, so far as the record before us shows, has been entered in favor of either party.
In the present state of the action there is no authority for this appeal. To authorize the dismissal of an action upon the ground that the title to land comes in question the defendant must set it up in his answer, in which case he must give an undertaking in accordance with the provisions of section 180 of the Municipal Court Act, or it must "appear upon the trial from plaintiff's own showing that the title to real property is in question." Mun. Ct. Act, § 184.
Moreover it has been frequently held that an appeal must be taken from the judgment and not from an order dismissing the complaint ( Metropolitan E.R. Co. v. Johnson, 84 Hun, 83; affd., 158 N.Y. 739; Citron v. Bayley, 36 A.D. 139), and the order appealed from is of a similar character.
Appeal dismissed, with ten dollars costs.
I concur on the last ground stated in the opinion. In my opinion the title to real property was not in question in this case. Heiferman v. Scholder, 134 A.D. 579, 583.
Appeal dismissed, with ten dollars costs.