#### Virginia J. Quinn, Respondent, *against*Herman T. Winter, Appellant.

(Decided December 2d, 1889.)

In an action to recover damages for a nuisance caused by defendant’s maintaining a screen for sifting coal on adjoining premises, rendering the premises occupied by plaintiff unfit for habitation, plaintiff can recover on proof of possession only, and title to the land does not come into question, within the statutory rule awarding costs to a plaintiff recovering judgment in an action “ in which a claim of title to real estate arises upon the pleadings.”

The fact that plaintiff alleged ownership in his complaint, upon which issue was joined, is immaterial, as such allegation is unnecessary and need not be proved.

Appeal from an order,of the General Term of the City Court of New York vacating an order setting aside-a judgement for costs and from a judgment entered upon such order.

The facts are stated in the" opinion.

*George W. Blunt,*for appellant.

*Henry W. Leonard*and *T. M.*Tyng, for respondent.

Van Hoesen, J.

The right to costs that a positive statutory provision awards to a party on the happening of a certain event is a substantial right; and an appeal lies from an order that denies such a right *(Sturgis*v. *Spofford,*58 *N. Y.*103).

As the plaintiff recovered no more than six cents as damages in an action cognizable by a justice of the peace, the defendant is, under the Code, entitled to costs unless the title to land was brought in question by the pleadings. There is in this case no certificate of the justice that a claim of title *384arose on the trial. The only inquiry that w.e are called upon to make is this: Did a claim of title arise upon the pleadings? To that inquiry only one answer can He made. A question of title arises where the plaintiff must prove the ownership of land, in order to succeed, or where he is under the obligation of proving his right to the possession of the land. If it be sufficient for him to show merely that he is in possession, without proving either title or his right to the possession of the land, there is no reason for saying that a claim of title is involved in the issue to be tried. The plaintiff sought in this action to recover damages because the defendant, by tainting the atmosphere and by loud noises, rendered her houses unfit for habitation. The nuisance that caused the noise and the pollution of the air was situated upon the land of the defendant. No trespass upon the plaintiff’s land is alleged, but au action of trespass on the case would have been the plaintiff’s remedy under the forms of pleading that prevailed before the Code was adopted. There is no allegation of any injury to the freehold. The injury is necessarily of an intermittent and transient character, for it proceeds from the use of a screen for sifting coal. The disuse of the screen would terminate the nuisance. The use of the screen makes the occupation of the plaintiff’s houses uncomfortable at times, and this action is, as has been said, to recover damages for such discomfort. It was not for the defendant to call in question the right of possession of any occupant of the plaintiff’s houses who had been aggrieved by the nuisance. There is nothing to show that the plaintiff did not herself dwell in one of the houses. The questions to be litigated are, first: Was the plaintiff in possession of the houses? and, secondly: Did the nuisance that the defendant maintained upon his premises seriously annoy her, and prevent her full enjoyment of her houses ? The only question then remaining is as to the quantum of damages. It will be seen that the question of title did not necessarily arise, nor was the plaintiff under the necessity of proving her right to the possession of her houses. As against a wrong-doer, naked possession is all that the plaintiff was under obligation to prove ; and the *385person maintaining a nuisance is' a wrong-doer (Wood Nuisances, § 825). It is apparent, therefore, that a claim of title was not part of the issues to be tried.

It is said, however, that the plaintiff herself dragged the question of title into the case by alleging in her complaint that she is the owner of the houses, and that the defendant joined issue upon that allegation. The answer to that suggestion is that the allegation of ownership is unnecessary, and though made, need not be proved. It was otherwise at the common law, for the rule used to be that “ a party may, in general, traverse a material allegation of title or estate, to the extent to which it is alleged, though it need not have been alleged to that extent” (Stephen Pleading, marg. p. 247, and note 2 of second appendix). The Court of Appeals has decided that that rule is no longer in force, and so has the Supreme Court, so that it must now be considered as settled in the State of New York that, by alleging that she was the owner, the plaintiff did not bind herself to prove her title, since bare possession was sufficient to maintain her action.

The following authorities will be found to support the views that I have expressed *(Ehle*v. Quackenbos, 6 Hill 537; *Rathbone*v. McConnell, 20 Barb. 311 ; 21 N. Y. 466).

The result of the examination I have made of all the cases cited by Mr. Tyng is to satisfy me that the title to land did not arise upon the pleadings, and that the defendant has a statutory right to the costs of the action.

The order and judgment appealed from must be reversed, with costs.

Larremore, Ch. J. and J. F. Daly, J., concurred.

Order and judgment reversed, with costs.