majority"> HERRICK, J.

Section 3235 of the Code of Civil Procedure reads as follows:

“Where an action, brought before a justice of the peace, or in a district court of the city of New York, or a justice’s court of a city, has been discontinued, as prescribed by law, upon the delivery of an answer, showing that title to real property will come in question; and a new action, for the same cause, has been commenced in the proper court; the party in whose favor final judgment is rendered in the new action, is entitled to costs; except that, where final judgment is rendered therein, in favor of the defendant, upon the trial of an issue of fact, the plaintiff is entitled to costs, unless it is certified that the title to real property came in question on the trial.”

Under this section, can it be said that the title to real property came into question upon the trial? In this case the question of title was squarely raised by the pleadings; it was alleged in the complaint; it was put in issue by the general denial in the defendant's answer; it was’ also specifically denied in another portion of his answer; the title was furthermore alleged to be in a third party; and the title to the particular place where the trespass occurred was alleged to be in the public, for their common use and benefit. While it is true that the plaintiff might maintain an action of trespass by showing "actual possession and occupation' alone, without alleging or proving title, yet, under such allegation and proof, she could not recover for damages to the freehold. In this action she not only alleged title,- and gave evidence of it, but claimed upon the trial that the trespass constituted an injury to the freehold, and the court held that the evidence given, being uncontroverted, was sufficient to prove title. The fact that at the close of the plaintiff’s case the defendant moved to dismiss the complaint, offering no evidence in his own behalf to controvert any of the evidence given by the plaintiff, does not warrant us in saying that the title to real property did not come into question upon the trial. For the purposes of this section of the Code, it seems to me that whenever, under the pleadings, it becomes necessary for the plaintiff- to prove, and he does, upon the trial, give evidence of, title, it may be fairly said that such title came in question-upon the trial. Those matters come in question upon the trial that are alleged in the complaint, controverted by the answer, and which the plaintiff gives evidence of to maintain his cause of action. The fact that the plaintiff gives insufficient evidence to maintain bis complaint, and that thus the defendant is relieved from the necessity of giving any evidence -to contradict that given by the plaintiff, does not change the situation, and remove those matters which have been pleaded, and evidence of given, from the category of matters that came in question upon the trial. It seems to me, therefore, that the defendant is entitled to a certificate in accordance with section 3235, and to his costs. This is in harmony with the case of Gates v. Canfield, 28 Hun, 12, Saunders v. Goldthrite, 41 Hun, 242, *763and of Morse v. Salisbury, 48 N. Y. 636, and is not in conflict with the case of Ehle v. Quackenboss, 6 Hill, 537, or of Rathbone v. McConnell, 21 N. Y. 466. In the case of Ehle v. Quackenboss, 6 Hill, 537, there was no evidence of title given upon the trial, and in Rathbone v. McConnell there was no claim or evidence of title.

Order reversed, with $10 costs and disbursements of this appeal, and motion for certificate granted, with $10 costs. All concur, except PUTNAM, J., not voting.

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