A. D. Realty Corp. v. Doell

Action in ejectment. Judgment awarding possession of a parcel of real property to the plaintiff unanimously affirmed, with costs. The claim that plaintiff did 'not establish title in the grantors named in the deeds upon which plaintiff relied was not raised at the trial. It may not be raised for the first time on appeal. This omission could readily have been supplied if the question had been raised. Assuming, without deciding, that defendant should have been accorded a jury trial and did not waive her right thereto, no prejudice or harm resulted from the denial. The proof adduced on behalf of the defendant by way of establishing adverse possession was insufficient and did not present any issue of fact that would require submission to a jury. The defense was insufficient as a matter of law, and the plaintiff’s prima facie case so far as right to possession was concerned, being unrebutted, plaintiff would have been entitled to the direction of a verdict. Present — Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ.