McAvoy v. Cassidy

Plaintiff brought this action to recover possession of a strip of land on Walworth street in this city, ten feet three inches wide by twenty-five feet in depth, claiming to he the owner thereof, and that defendant unlawfully withheld possession of the same. The answer was a general denial. Plaintiff had a verdict in her favor, and defendant appeals from the judgment entered thereon, and also from an order denying a motion for a new trial.

From the evidence printed in the case on appeal, it appears that, in and prior to 1844, one John Kelly was the owner of a plot known as lot No. 116 on map of property belonging to Garret Nostrand; on February 21,1844, Kelly conveyed to Margaret McAvoy the northern half of said lot by metes and bounds. This deed embraced the strip of land in dispute. The title conveyed by this deed, by various mesne conveyances, became vested, in 1869, in the plaintiff. In 1852 Kelly conveyed the southerly half of said lot No. 116 to one Charles Cassidy; the premises so conveyed were described, in part, as commencing at a point on Walworth street distant sixty-seven feet eleven inches south from the southeast corner of Walworth street and the Wallabout bridge road, “which *596point is also the southwestern corner of land conveyed to Margaret McAvoy.” This last-mentioned parcel of land was, by various deeds and wills, conveyed and demised by the same description, until, in 1884, it became vested in the defendant. In 1852 Cassidy, the grantee of Kelly, built a house thirteen feet deep, so that ten feet and three inches thereof encroached upon the premises that had been originally conveyed by Kelly to McAvoy, plaintiff’s predecessor in title; subsequently, by boxing fti the rear stairs and erecting a shed, the encroachment was increased seven feet six inches. As to whether the rest of the lot was-inclosed, the evidence was conflicting.

We have read with great care the very able brief of the learned counsel for the appellant, but, in consequence of the omission from the case on appeal of the statement that it contains all the evidence, we are precluded from considering the motion for a new trial on the minutes (Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415), and our review of the case on this appeal must, therefore, be confined to the exceptions in the case.

The omission of this statement is also an answer to the exception taken by appellant’s counsel at the close of the case to the denial of his motion to dismiss the complaint on the ground that plaintiff had not made out a cause of action. But even if this was not so, the evidence, as printed, went to show that the occupancy of the rear part of the strip in dispute had not been undisturbed, and as to that portion of the premises an issue was made which it was necessary to submit to the Pry-

While plaintiff made out a clear record title to the premises in question, defendant claimed to hold by virtue of twenty years’ adverse possession.

The learned trial judge charged the jury that “ The occupant who claims adverse possession must claim during that time (twenty years or over) adverse to the tnie owner. The possession, as said in the books, must be a possession undisturbed and open and under the open claim of ownership, and *597must be adverse to the owner of record. * * * That is a question of fact for you to decide on all the evidence in this case, whether the defendant and the parties who owned before him and occupied the premises have peaceably, openly and under claim of ownership, to the exclusion of the plaintiff, occupied the premises in question. * * * Another question, as I have said, may arise as to the lot, the vacant part of the premises in question. The defendant, in order to establish adverse possession there, must prove that, during the time of the alleged adverse possession, the premises, the lot, was protected by a fence, by a substantial inclosure.”

The learned counsel for the defendant excepted to the charge “ that the possession for twenty years has to be peaceable in order to give right to any title,” and also to the charge "that “ it must be inclosed by a substantial inclosure.”

Neither of these exceptions seems to us to be well taken. That to establish a title by adverse possession the possession must be “ undisturbed ” will not be disputed; this the learned trial judge charged; the possession must be peaceable to be undisturbed, and, taken in connection with what preceded it, the statement that the possession must be “ peaceable ” was not erroneous.

Nor was the charge that “ it must be inclosed by a substantial inclosure ” erroneous. Code Civ. Proc. § 372. The only contention of the defendant, so far as the case shows, as to the rear or unoccupied portion of the strip, was that it has been fenced off from plaintiff’s land; this was denied by plaintiff, and the question as to whether it had been so fenced off was the only issue made on that branch of the case. There was no pretense that it had been “ usually cultivated or improved.”

The learned counsel for the defendant also excepted to that portion of the charge in which the learned trial judge charged that “ the house was erected in 1852. Under what arrangement it was erected Ave do not knoAv; that may be a question of fact for you to decide on the evidence in this case.” The claim is made by the learned counsel for the appellant that there was no evidence in the case of any arrangement as to the *598erection of the house. We cannot assume that to he so in the absence of the statement above referred to, that the case contains all the evidence. We might further add that we are not-prepared to hold that the descriptions in the deeds to defendant and his predecessors in title, by which their lands were-described as commencing at “ the southwestern corner of land conveyed to Margaret McAvoy,” were not some evidence of recognition of the ownership of plaintiff and his predecessors in title of the premises in dispute.

We think that the judgment and the order denying the motion for a new trial should be affirmed, with costs.

Van Wyck, J., concurs.

Judgment and order affirmed, with costs.