Conselyea v. Van Dorn

129 A.D. 520, 114 N.Y.S. 61, 1908 N.Y. App. Div. LEXIS 1345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1908
• Status: Published

Opinions

Jenks, J.:

This appeal is from a judgment for the defendant in an action for ejectment wherein a verdict was directed at Trial Term.

I think that the plaintiffs should have been permitted to prove, if they could, any statements made by the defendant which showed or which tended to show that he did not make claim of title to the premises in dispute. How much such statements are worth is not for us to say. In Colvin v. Burnet (17 Wend. 569) Co wen, J., for the court, says : “ It is well known that a single lisp of acknowledgment by the defendant that he claims no title, fastens a character upon his possession which makes it unavailable for ages.” (See, too, Cutting v. Burns, 57 App. Div. 185; De Lancey v. Hawkins, 23 id. 8, 14; affd., 163 N. Y. 587.) I cannot infer that the learned court excluded these statements for any reason save that the objections made that they were irrelevant, incompetent and immaterial were good, but in view of a new trial it may be well to point out that the questions were sufficiently explicit and definite, for the rule that the attention of a witness must be called to the time and the place when and where he made the alleged statements does not obtain when he is a party. (Blossom v. Barrett, 37 N. Y. 434;Ruemer v. Clark, 121 App. Div. 231.) Moreover, the different hearers of the alleged statements were specified in the questions.

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Woodward, Hooker and Miller, JJ., concurred; Gaynor, J., concurred in separate opinion.