Greenberg v. Schwartz

273 A.D. 814, 76 N.Y.S.2d 95, 1948 N.Y. App. Div. LEXIS 4761

Opinion

In an action to remove a cloud on title, defendant appeals from a judgment entered in favor of plaintiff. Judgment unanimously affirmed, with costs. The fact that plaintiff executed the mortgage which he now seeks to remove as a cloud on title does not deprive him of the right to maintain the action. (Stokes v. Houghton, 16 App. Div. 381.) Although this action was commenced eleven years after the execution and delivery of the mortgage, it is not barred by the Statute of Limitations. Where the action is brought by an owner in possession, the right is a continuing one which may be asserted at any time during the existence of the cloud. A different rule applies where the action is by an owner not in possession. (Ford v. Glendenin, 215 N. Y. 10.) Present — Carswell, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ.