110 N.Y. 500 | NY | 1888
The plaintiffs brought their action to recover damages sustained by them, as alleged in their complaint, by reason of injuries inflicted by defendants upon a certain dam, which they alleged, in one count of their complaint, they were owners of in fee, and in another they alleged that they had the right to use the water in Hans creek, and that the defendants negligently and unnecessarily flooded the stream and washed out and destroyed the plaintiffs' dam, etc. The defendants took issue in their answer upon the question of ownership of the dam and the right to use the waters of the creek, and denied any negligence and pleaded a license from the riparian owners to float logs down the stream, and that they used ordinary care. They set up no title in themselves to any real estate or interest therein.
Upon the trial plaintiffs gave evidence upon the question of their title to the dam, but the defendants claim that they *503 failed to show any title, and they say, on the contrary, that they (defendants) showed title in a third party, with whom, however, they did not connect themselves. The verdict was for $400 damages, and judgment was entered for that sum, with costs, and it having been affirmed upon defendants' appeal, by the General Term, defendants have appealed here.
The appeal must be dismissed for lack of jurisdiction in this court to hear the same. By subdivision 3 of section 191 of the Code, an appeal involving less than $500, exclusive of costs, cannot be taken to this court, "except in an action or special proceeding affecting the title to real property, or an interest therein," unless upon conditions not complied with herein. It is not enough that the action relates to real property or in some way affects it, it must itself affect the title or some interest therein. (Nichols v. Voorhis,
For these reasons the appeal from the judgment should be dismissed, with costs.
All concur.
Appeal dismissed. *504