The single question which this case presents is, whether the justice had jurisdiction to render the judgment. Such jurisdiction is denied, on the ground that the title to real property came in question upon the trial.
There are two modes in which title may come in question upon a trial. The one is, where the issue is such that the plaintiff finds it necessary to prove his title, in order to sustain his action. In respect to such a case, it is provided by the 59th section of the code, that “if it appear on the trial, from the plaintiff’s own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and render júdgment against the plaintiff for costs.” The other case is, where the defendant proposes to set up title in his defense. For this case, provision is made in the 55th and 56th sections of the code. The 58th section declares that, unless the defendant proceed in the manner prescribed in the preceding sections, the justice shall have jurisdiction of the cause, and the defendant shall be precluded, in his defense, from drawing the title in question. It is to be observed, that the defendant is only thus precluded from drawing title in question “ in his defense.” If it become necessary for the plaintiff to establish his title, in order to recover, the objection may be taken by the defendant, and it is the duty of the justice, in whatever stage of the trial this shall appear, to dismiss the action.
The case in hand was clearly within the 59th section. The rents claimed were real property. The plaintiff alleged that, by virtue of the conveyances set forth in the complaint, *471he had become seised in fee of such rents. This was a material allegation, and, being denied, he was bound, before he could recover, to prove it. Thus, “by the plaintiff’s own showing,” the title to real property was brought in question. In principle, the case is like an action for trespass in cutting timber on wild land. In such a case, there being no possession, it is necessary for the plaintiff to prove his title, before he can recover. And for this reason, a justice cannot try such an action. (See Hubbell v. Rochester, 8 Cowen, 115.)
[Albany General Term, December 7, 1857.In many cases between landlord and tenant, the latter is estopped from disputing the title of the former. Where this is the case, no question of title can arise. But all there is of this rule is, that the tenant cannot dispute the title of his landlord while it remains as it was when the tenancy was created. It is always competent for the tenant to show, in any way he can, that the landlord’s title has terminated since the commencement of the tenancy. So where, as in this case, a stranger to the original transaction claims that he has succeeded to the rights of the landlord, it is competent for the tenant to deny his claim, and thus put him to the proof of his title. Where this is done, whatever the amount in controversy, the case is no longer within the jurisdiction of a justice of the peace. This was such a case. The judgment, therefore, should be reversed.
Wright, Harris and Gould, Justices.]