Gubner v. Pillion

231 A.D. 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Order denying plaintiffs’ motion to strike out the first separate defense reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to serve an amended answer within ten days from service of a copy of the order herein. The action is brought pursuant to the provisions of section 994 of the Civil Practice Act. The allega^ tions of the complaint place Davis Realty & Construction Co., Inc., in the same position as the Gubners would have been if no deed had passed from the Gubners to Davis Realty & Construction Co., Inc. (Dever v. Hagerty, 169 N. Y. 481.) As against this suit for ejectment there might be a properly pleaded defense of title by adverse possession in which all the facts upon which such title by adverse possession is predicated should be set forth. No such facts are presented in this defense. Facts showing the deed from the Gubners to Davis Realty & Construction Co., Inc., to be void are not sufficient for that purpose. Lazansky, P. J., Kapper, Hagarty, Scudder and Tompkins, JJ., concur.