Nichols v. Bain

By the Gourt,

Jambs, J.

The purchase of the mill property and water power in the village of Fort Miller, owned by the heirs of Bleecker, its improvement, and bringing the water into use, were conditions precedent to a right of action on the instrument sued on. Such purchase could only be by deed, and therefore that instrument was the best, if not the only, admissible evidence of such purchase.

In averring due performance of all the conditions precedent, the plaintiff, in legal effect, asserted the purchase of said mill property and water power; and the general denial in the answer necessarily put in issue that purchase, and thus the plaintiff was put to the proof thereof.

The 59th section of the code, which is a substantial transcript of 2 R. S. 237, § 63, declares that “ in actions commenced in a justice’s court, if it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title is disputed by the defendant, the justice shall dismiss the action,” &c.

Other sections of the code provide for dismissing the action where title shall be pleaded. The purpose of the statute is that a justice of the peace, shall not in any case have jurisdiction to try a disputed title to real property. But did it appear on this trial from the plaintiff’s own showing that the title to real property was in question ? It seems to me that it did not. A deed of real estate was introduced in evidence, not- to establish a title to land, for that was not the issue, but to show the performance of a condition precedent to the defendant’s liability upon .the instrument which was the foundation of the action. That condition precedent was, that the plaintiff should purchase certain property owned by certain heirs. And a purchase from them was a performance, even though they had but an imperfect title. It was the purchase from said heirs, and not the extent or validity of their title, which was the fact sought to be established by the introduction of the deed .in evidence; although I do not mean to admit that it would make any difference even had the plaintiff tried to establish a perfect title.

It was said in Main v. Cooper, (25 N. Y. Rep. 184,) that “ in all cases when deeds or paper evidences of title to real estate are introduced before a justice of the peace, he is entir tied to consider the purpose for which they are introduced. If they are merely introduced incidentally, to establish some collateral fact not involving any title to, or interest in lands, he is to receive them like other evidence.”

It was in this light that the justice, on the trial of this cause, should have permitted the introduction of the deed. It did not p^ut in question any title to, or interest in, lands. The title was collateral to the main issue on trial, and therefore the deed should have been received as other evidence, and jurisdiction of the cause retained.

[Clinton General Term, July 12, 1864.

Judgment of the county court and justice reversed.

Potter, Boelees, Pames and Rosekrans, Justices.]