Finelite v. Sinnott

5 N.Y.S. 439, 1889 N.Y. Misc. LEXIS 3029

• Court: The Superior Court of the City of New York and Buffalo
• Decided: May 6, 1889
• Status: Published

Opinion

O’Gorman, J.

This is an appeal taken by the plaintiff from a. judgment against him on dismissal of his complaint. The action is brought to eject the defendant from premises of which plaintiff claims to be owner in fee, situated at the corner of Chatham street and Baxter street in the city of New York. The premises are thus described in the complaint: “Beginning at a point on the westerly side of Baxter street, distant ninety feet one inch from the north-west corner of Chatham and Baxter streets; thence running northerly, and along the westerly side of Baxter street, one foot, to other land occupied by said defendant; thence westerly at right angles to Baxter street, and along the line of the land now owned by said defendant, thirty-three feet six inches, to land now or late belonging to Silcox; thence southerly and along said last-mentioned lands, two foot and eleven inches, to land now owned and in the possession of this plaintiff; and thence easterly, thirty-three feet six inches, to the point or place of beginning. ” Both the plaintiff and the defendant claim title to these premises under the will of one Blaze Moore, executed in 1817, and duly admitted to probate and recorded in 1820. The part of the will on which the plaintiff relies is as follows: “I give and devise unto my said daughter, Rosanna Winter, all and every my messuages, .houses, and lot or lots of ground fronting on Chatham street in the city of New York, adjoining Orange street, the same being about thirty feet wide in front, and sixty-six feet in length. I also give and devise unto my said daughter, Rosanna, a lot of ground front on Orange street, directly in the rear and adjoining the said last-mentioned premises, being about twenty-seven feet in width in front, and thirty-four feet in depth. To have and to hold the said several lots, messuages, and tenements, with the appurtenances, to her, my said daughter Rosanna, for and during her natural life, and upon her decease the same shall go to and be held and enjoyed by my son, Augustus Winter, his heirs and assigns forever, to whom I give and devise the same accordingly.”

In an action of ejectment, it is the well-known rule of law that the plaintiff must depend for success only on the strength of his own title, and in no wise on the weakness of the title of his opponent. In the case at bar, the plaintiff failed to satisfy the court as to the exact dimensions of the premises claimed to be the property of the plaintiff, or of the exact locality in which they were placed. The description in the devise was not clear or definite. The words used, “being about” 30 feet, etc., do not fix the dimensions, and a similar ambiguity is attached to all the other testimony produced by the plaintiff to sustain his case. Every effort to cure the defect at the trial failed. The judgment appealed from should be affirmed, with costs. All concur.