(78 Hun, 591.)

#### CLEVELAND v. WILDER.

(Supreme Court, General Term, Fifth Department

June 20, 1894.)

Costs—Action Involving Title to Land.

In an action by landlord against his tenant for conversion of timber on the premises, a denial in the answer of each and. every allegation of the complaint does not put plaintiff’s title in issue, though the complaint alleges that plaintiff was seised in fee simple, as such.allegation is not necessary to plaintiff’s right to sue.

Appeal from special term, Wyoming county.

Action by Uriah. Cleveland against Joseph Wilder to recover damages for breach of the covenants of a lease. From the order denying plaintiff’s motion to vacate a judgment in favor of defendant for costs, and for a relaxation of costs, plaintiff appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BBADLET, JJ.

M. E. & E. M. Bartlett, for appellant.

Johnson & Charles, for respondent.

LEWIS, J.

It was alleged in the complaint that the plaintiff was on the 11th day of Aprü, 1890, the owner in fee simple of a farm in the county of Wyoming, and that on said day he and the defendant entered into an instrument in writing under their hands and seals, being a lease of said farm by the plaintiff to the defendant. The lease is set out in full in the complaint. It provides that in consideration of the rents, covenants, and agreements mentioned and reserved therein, the plaintiff leases the farm to the defendant for the term of one year from the 1st day of April, 1890, for the annual rent of $100, with the privilege to the tenant of a renewal thereof for one year upon the same terms and conditions. The lease contained, among others, the following conditions:

> “And the said party of the second part [the defendant] * * * will feed out one-third of all hay made on said premises, two-thirds of all straw raised upon the farm; repair the fences on the farm.”

The tenant covenanted not to plow more than two acres of the meadow land, and to leave the premises, at the termination of the lease, in as good condition as they were at the date of the lease, ordinary wear, and damages by the elements, excepted. The woodland was reserved to the landlord, except the right to the tenant to pasture the same. The complaint further alleged that the defendant went into possession of the premises, and that, in violation of the provisions and covenants of said lease, he plowed some 15 or 20 acres of meadow land on the farm, and cut down timber growing thereon, and converted it to his own use, and took from the buildings, doors, windows, boards, and committed great waste on the farm; that he carried off all hay and straw raised thereon, and did not feed any of it out on the farm, and removed therefrom a large quantity of manure, the property.of plaintiff, of the value of $100, and converted the same to his own use. Judgment was demanded against the defendant for the sum of $600. The defendant, by his *210answer, denied each and every allegation in the complaint contained, and alleged that the timber cut by him was with the knowledge and consent of the plaintiff, and that he had paid therefor in full, and set up a counterclaim. The issues came on for trial, and the plaintiff recovered a verdict against the defendant of $21.97. The defendant was allowed costs of the action by the taxing officer. The plaintiff’s damages, of $21.97, were deducted from the amount of the defendant’s costs, and a judgment was entered in defendant’s favor, against the plaintiff, for $85.90. The plaintiff applied to the justice presiding at the trial for the certificate provided for by section 3248 of the Code,—that the title to real property came in question upon the trial. His application was refused, for reasons stated in a memorandum printed in the case as follows: That—

“Upon the trial two questions only were litigated: First, whether the detendant was in possession of plaintiff’s farm under the lease of April 11, 1890, or under an agreement alleged to have been made subsequently, by which said lease was modified in important particulars; and, second, whether the t’mber cut by the defendant, and the manure removed by him, was so cut and moved in pursuance of a license from or consent of the plaintiff to so cut said timber, and remove said manure. The fact that the plaintiff was the owner of the farm, and therefore the owner of the timber and manure, and that the defendant was in possession of the farm as plaintiff’s tenant, and liable in this action for any damage sustained by the plaintiff by reason of the cutting of such timber and the removal of such manure, unless protected by his license under the agreement alleged to have been made with the plaintiff, was not in dispute. It is therefore clear that the title to real estate did not come in question on the trial, and the plaintiff’s application must be denied.”

The plaintiff thereupon made a motion for an order that the judgment entered in favor of the defendant be vacated, and the taxation of costs set aside, and that the plaintiff be allowed costs against the defendant. The motion was denied, and from the order denying the motion this appeal was taken.

It is plaintiff’s contention that the title to real property was put in issue by the pleadings, and that he was therefore entitled to costs, under the provisions of section 3228 of the Code of Civil Procedure. He bases this contention on the allegation in the complaint that the plaintiff was the owner in fee simple of the premises leased, and the general denial in the answer of each and every allegation in the complaint. This allegation in the complaint was entirely unnecessary and superfluous. The defendant, having taken a lease of the plaintiff, was estopped from questioning plaintiff’s title. There was no allegation in the answer that he was in possession under any other title than that of the plaintiff. There was no affirmative allegation in the answer putting in issue the plaintiff’s title. The plaintiff was not required at the trial, under the pleadings, to prove his title. No such issue was, or could be, litigated under the pleadings. The plaintiff could not, by the insertion in his complaint of such an entirely unnecessary and superfluous allegation,—an allegation that he knew the defendant would not be at liberty to put in issue,—entitle himself to costs. In Bailey v. Daigler, 50 Hun, 541, 3 N. Y. Supp. 718, it is stated by. Bradley, J., that a mere general denial by an answer of the allegations of the complaint does not raise a claim of title to real property upon the pleadings, within the *211meaning of the statute, where it does not appear by the complaint that such title will necessarily arise upon the trial. He refers to Rathbone v. McConnell, 21 N. Y. 466, as sustaining that doctrine. The plaintiff suggests, and apparently for the first time in his submitted brief, that the cause of action was for waste, and that, therefore, under the statute, he was entitled to treble damages, making the amount of the recovery to which he was entitled more than $50. No cla'm for treble damages is made in the complaint, and he made no such claim before the taxing officer, nor in his moving papers at special term. The judgment was entered for single damages only, and the plaintiff did not ask to have it set asile hr the íeason that he had not been awarded treble damages. It is too late, we think, to raise the question upon appeal. Ave do not think the cause of action stated in the complaint was for waste, and, if not, that is a complete answer to the plaintiff’s contention. The order appealed from should be affirmed, with $10 costs, and disbursements of the appeal. All concur.