Di Folco v. Hansen

255 A.D. 977, 7 N.Y.S.2d 968, 1938 N.Y. App. Div. LEXIS 6131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1938
• Status: Published

Opinion

In an action of ejectment the jury answered special questions and rendered a general verdict in favor of the defendants, upon which a judgment dismissing the complaint on the merits was entered. On appeal by the plaintiff, judgment reversed on the law and the facts and a new trial granted, costs to abide the event. In our opinion the verdict, in so far as it purports to find that there was a practical location by the parties of the boundary line in the place where the stone wall is located and that the defendants acquired title to the strip in dispute by adverse possession, is against the weight of the evidence. Furthermore, it was error to receive in evidence the letter, defendants’ Exhibit N. Johnston, Adel and Close, JJ., concur; Lazansky, P. J., and Carswell, J., dissent and vote to affirm, with the following memorandum: We dissent on authority of Crary v. Goodman (22 N. Y. 170). The proof established defendants’ possession for the requisite period, and upon this theory the admission of Exhibit N was harmless error.