(dissenting):
I dissent. Under the decision handed down by us in Doscher v. Wyckoff (132 App. Div. 139), the title under the Van Siclen will was perfectly good. As we tried to point out in that case, the power of sale was given not as in Haendle v. Stewart (84 App. Div. 274) to the trustee solely for the purposes of the trust, but to the executor generally for any of the purposes of the will. The beneficiary of the trust was not the only person whose estate was conveyed by the execution of the power, and she was not the only person who was affected by such exercise. The condition is the same here. I think that the construction of the Municipal Court Act suggested in Mr. Justice Woodward’s opinion is too narrow. It certainly appeared upon the trial that the question of title was involved in this case. (Mun. Ct. Act [Laws of 1902, chap. 580], §. 184.) Plaintiff’s complaint shows it, and all of the proof is directed to the same point. The question at issue is, who was in default for the failure to complete the contract of sale? Was it the plaintiff, for refusing to accept a good title, or the defendants, for inability to convey good title ? There is a clear distinction between a ease where the title is either entirely good or entirely bad, and a case where the title is good, but the possession under it is affected by some alleged encroachment. (Elinsky v. Berger, 87 App. Div. 584.) Within the meaning of section 184 of the act, the title was “ disputed by the defendant.” This clearly means that the plaintiff’s contention as to the validity of the title, which is the foundation of the cause of action, is disputed by the defendants. To hold otherwise would be to hold that if a plaintiff asserted the title to be good, and defendant denied it, the court would be ousted of jurisdiction ; but if a plaintiff asserted the title to be bad and defendant denied it, *586the latter would have no relief, but could be compelled to litigate the question there. The policy of the law is to deprive the Municipal Court of jurisdiction to determine actions where the cause .of action involves the determination of a question of title. (Mun. Ct. Act, § 2.) Under the construction suggested by Mr. Justice Woonwaed, if the vendee in a contract of sale as plaintiff asserts that the title is bad, and he is entitled to damages for a breach of the contract, the Municipal Court would have jurisdiction to try the question. If, on the other hand, the vendee in such a contract of sale asserts that the title is good, and seeks damages from the vendor for his failure to complete, the vendor by disputing the assertion that the title was good could oust the court of jurisdiction. No reason can be suggested why a different rule should be applied to a vendor and a vendee with regard to the right to maintain an action in the Municipal Court. Under circumstances such as here disclosed,'the defendants could have no relief under section 179 of the Municipal Court Act. That only applies to a case where it does not appear from plaintiff’s own showing that a question of title was involved, but defendant asserts, notwithstanding, that such question is in the case. The defendant may be wrong in claiming that a question of title is involved, and the court is given no jurisdiction to determine the validity of his claim. Consequently, to prevent doing plaintiff an injustice, the same act provides that where, although the plaintiff does not show that such is the case, the defendant claims that a question of title is involved, the defendant must give a bond to give a written admission of service of summons and complaint in the Supreme Court. In that case, if defendant’s contention was wrong, and the question of title was not involved, the plaintiff is not compelled to run the risk of inability to serve the defendant a second time in order to -maintain his suit. If, on the other hand, the defendant was right, the question of title can be litigated in a court of competent jurisdiction. In any event, the judgment should be affirmed ; if the court had no jurisdiction, on that ground; if it had jurisdiction, upon the ground that the title was good and the plaintiff was in default for not completing his contract.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.