Quinn v. Winter
City of New York Municipal Court
Appeal from special term. Action by Virginia J. Quinn against John Winter. From an order setting aside judgment in favor of the plaintiff, and awarding costs to defendant, plaintiff appeals. Code Civil Proc. § 3228, subd. 1, provides that the plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor in an action triable by jury, in which a claim of title to real property arises on the pleadings.
1Per curiam
The test in determining whether the title to real property comes in question is to ascertain whether the plaintiff, in order to recover, must allege, and, if denied, prove, title to the freehold. (1) If the plaintiff claims the right to the possession of the land, solely because he is the legal owner of it in fee, which carries with it the right to the possession, then the title to land undoubtedly comes in question. (2) But there may be aright to-the possession of land, independently of a claim of title to it. The litigation of the right of possession would not, in such a case, be a question…
2Cited by2 opinions
- Lopiano v. Telephone Co.New York Supreme Court · 1931
- Quin v. WinterNew York Court of Common Pleas · 1890