Launitz v. Barnum , 6 Sandf. 637 ( 1851 )

By the Court.

The answer does hot put the plaintiff’s title in issue at all. It sets up a license to do the act charged as having been a trespass, from the occupant" of the premises. The denial that the act was wrongful is founded on the allegation of consent. The reply traverses the right of the occupant to give such a consent, as well as the consent itself. There were two issues made, viz., the fact of consent or license, and the right to give it. There was no “ claim of title.to real property,” (Code, § 301,) made in the pleadings, or came in question at the trial. The license set up was a very different thing from a claim of title. (See 18 Wend. 579.) The clerk was right in entering judgment for costs in favor of the defendant, and the order appealed from must be reversed. (All the justices concurred, except Paine, J., who was not present at the consultation.) •

(a ) The cases of practice reported were decided with the sanction of at least two, and nearly all of them with that of three or more justices of the court.