Delahoyd v. Alverson

1 N.Y. St. Rep. 766

• Court: New York Supreme Court
• Decided: July 1, 1886
• Status: Published

Opinion

Cullen, J.

This disposition of the case on the trial was correct. The plaintiff proved possession of the premises trespassed upon, and the defendant offered no evidence to connect herself with any hostile title. The description in the complaint bounded plaintiff’s lot by the north line of the “ Thomas” lot, and the court properly held that it included the" scene of the trespass. Therefore the plaintiff was entitled to the direction of a verdict in her favor, and the judgment, so far as it awards damages for the trespass, should be affirmed.

But we do not see that the plaintiff’s title came in question on the trial. The answer admitted title in the plaintiff. As said before, plaintiff proved possession, and the defendant offered no evidence of any other title. The proof of plaintiff’s deed was unnecessary, and if the proof of the location of the “Thomas” lot was necessary at all, it was not to prove the title, but only to show that the description in the complaint included the locus in quo.

We think that the learned judge who tried the cause erred, in certifying that plaintiff’s title came in question, and so much of the judgment as awards costs to the plaintiff must be reversed, and the clerk directed to tax costs in favor of the defendant, neither party to have costs of this appeal.