majority">By the court, Bockes, J.

The plaintiff commenced an *26action before a justice of the peace, claiming to recover for an alleged injury to his real property. The defendant interposed several defences, and among them a justification under a right of waj'. He also delivered with his answer the undertaking, in such cases required to be filed, in order to oust the justice of jurisdiction; whereupon the action being there discontinued, was further prosecuted in this court. On the trial at the circuit, the defendant established his right of way across the plaintiff’s farm, but the plaintiff had a verdict in his favor for trespasses committed on other portions of the locus in quo for $1.56. The question now is, which party is entitled to the costs of the action ? The plaintiff claims that he was driven to this court for redress by the defendant’s answer raising a question of title, and that having obtained a verdict in his favor, he is entitled to the costs of the action. The defendant insists that his defence of a right of way was interposed to but a part of the injuries complained of in the complaint as to which his defence prevailed, and that as to the other injuries, for which a recovery was had for the sum of $1.56, no defence of title was raised by the pleadings, and the issue as to such injuries was within the jurisdiction of the justice. If the defence of a right of way extended to and met the entire cause and causes of action set forth in the complaint, then clearly the plaintiff is entitled to costs, because in that case the record would show that the defendant failed in his alleged justification interposed to all the matter of complaint. His justification being as broad as the plaintiff’s charge, must be fully sustained or the defence fails, and costs in that event should be awarded to the successful party, however insignificant the recovery might be (Code, § 61).

The question then is, does the defence or justification interposed of a right of way, go to the entire matters or grounds of action charged in the complaint ? This question must be determined by an inspection of the record, *27by an examination of the complaint and answer. The action was trespass quare clausum fregit. The complaint contains two counts, in each of which it is charged that the defendant broke and entered the plaintiff’s close, describing it with certaintj'- as part of lot No. 12, in Platt Rogers’ Road Patent, being the farm known as the Brainárd I farm, on which the plaintiff resided.

The answer sets up four separate defences. It is here unnecessary, however, to examine the last three; the first only containing the defence of a right of way. In order to see whether this defence meets the entire matter of the complaint, we must first understand precisely the nature and extent of the charge. The gist of the action was the unlawful entry or entries upon the plaintiff’s land. All the other injuries stated in the complaint, to wit: the trampling down, eating and destroying the grass, herbage, corn, oats, wheat, apples, potatoes, buckwheat, and other grain and vegetables, were matters of description and aggravation merely. (5 Barb. 319 ; 4 Denio, 127; 1 Coms. 515 ; 15 Barb. 499.) As was said by Mr. Justice Hand, in the last case cited, the gravamen of the complaint is trespass domum fregit, and the destruction of the grass, herbage, grain and vegetables, was matter of aggravation. So Mr. Justice Pratt says (5 Barb. 319), the plaintiff complained of injury to his land, and the additional allegation that his personal property was destroyed, was merely matter of aggravation. Mr. Justice Jewett says (1 Coms. 511), the breaking and entering the close is the substantive allegation, and the rest (special injuries to the person or property) is laid as matter of aggravation only. The material charges in the complaint to be answered, were, therefore, the unlawful entries upon the plaintiff’s land. The plaintiff could not recover under his complaint without proving an unlawful entry, not even in case the matters stated by way of aggravation stood proved and undefended. (1 Denio, 181; 5 Barb. 319, 381 ; 4 Pick. 239; 2 Barn. & *28Ald. 363.) To autuorize a recovery under a complaint in trespass quare clausum fregit, the plaintiff must show a breach of the close. So in the case before us, the unlawful entries charged constitute the gravamen of the complaint. Are such alleged unlawful entries met and justified by the defence interposed of a right of way ? In other words, has the defendant set up a right of way as to all the alleged unlawful entries charged in the complaint ? If so, his defence goes to the whole matter of the complaint. He avers “ that as to the act of entering the close of the plaintiff mentioned in the complaint, the same was done in and on a certain road which the defendant had a right to use.” That is, as I understand it, as to every act of entering mentioned in the complaint, the same was done in and on a certain road which the defendant had a right to use. By this language the material allegations of the complaint were fully answered and justified. True, the last paragraph of this defence is as follows : “ And as to the residue of the acts complained of in said complaint, said defendant denies the same, and every part thereof.” But in fact, there was no residue of acts complained of in the complaint, to which this paragraph could have application, unless the pleader had reference to some acts stated as matter of aggravation, which neither required or admitted of any answer for the purpose of defence. The defendant, by clear and unmistakable language, justified “ the acts of entering the close of the plaintiff, mentioned in the complaint,” by averring a right of way across the locus in quo. This defence went to the plaintiff’s entire right of recovery for the trespasses charged, whatever other matters of defence were stated in the answer. I am satisfied that the justice decided correctly in discontinuing the action. On the delivery to him of the undertaking with the answer, he was ousted of jurisdiction, and was bound to discontinue the proceeding (Code, § 57). Not as to one or some of the alleged causes of action, but as to all, inasmuch as the *29defence of title to real property was interposed to all the trespasses charged in the complaint.

If I am correct in this construction of the pleadings, the plaintiff is entitled to the costs of the action. The defendant on the trial failed to sustain his defence. His justification, although in part successful, was not wholly so, and the plaintiff must be deemed to have recovered against the defendant’s plea of title. The defendant had it in his power to limit his justification to such acts of entry upon the locus in quo, as were protected by his right of way. The complaint was certain and specific in all its parts, and was the only pleading the plaintiff was permitted to make. He could not “ new assign,” by a replication to the answer (30 Barb. 344). The issue must be framed before the justice, where no other pleadings than a complaint, answer and demurrer are allowed. If, therefore, the defendant wished to justify certain of the alleged trespasses under a right of way, he should have described the way, and set up his right in justification of his acts in passing and repassing over that portion of the locus in quo. According to the present mode of pleading in a justice’s court, it lay with him to limit the justification or defence of title to meet his own wishes in that regard. In this way a defendant can make the issue of title as broad or as narrow as he chooses, and must take the consequences of raising an issue against his adversary which he cannot maintain.

In my judgment the order of the special term should be • reversed, and the motion of the defendant for liberty to enter up judgment in his favor for costs of the action, should be denied.

The plaintiff should, I think, have $10 costs of the appeal.

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