Hymes v. Esty

New York Supreme Court

Hymes v. Esty

43 N.Y. Sup. Ct. 147

DecidedApril 15, 1885

StatusPublished

This text of 43 N.Y. Sup. Ct. 147 (Hymes v. Esty) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hymes v. Esty, 43 N.Y. Sup. Ct. 147 (N.Y. Super. Ct. 1885).

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Opinion

Follett, J.:

It is not claimed that the title to any part of the land conveyed has failed, but that the village of Ithaca has opened to its legal width and worked a public street which had been laid out prior to-the conveyance by the defendants’ testator, using for this purpose a strip of the land conveyed about twelve feet in width. The existence of a public street or highway, legally, laid out and openly traveled, upon land conveyed with a covenant of warranty, does not, if the public have but an easement, amount to a breach of warranty. (Whitbeck v. Cook, 15 Johns, 483; Wilson v. Cochran, 46 Pa., 229.) If the soil of a street or highway is appropriated or used for other purposes, the owner may maintain trespass or ejectment against the intruder. (Goodtitle v. Alker, 1 Burr, 133; Cortelyou v. Van Brundt, 2 Johns., 357; Jackson v. Hathaway 15 id., 447.) In this 'State, opening a public street or highway to its legal width, or using it as a street, in not deemed a sufficient eviction to enable the owner to maintain an action against his grantor for the breach of a covenant of warranty. Whether the existence of a [149]*149public street or highway, is a breach of a covenant against incumbrances, is a question upon which the decisions of the various States do not agree. (3 Wash. R. P. [4th ed.J, 460, 462.)

The sole foundation of this action is the judgment in the case of -the village of Ithaca against this plaintiff, the' judgmeniroll in -which case was introduced in evidence by the plaintiff, by which it ■appears that the land from which the plaintiff claims to have been evicted, was a legal public street at the date of the grant of defendants’ testator to Todd, and also at the date of the grant of Todd to ■the plaintiff. The plaintiff cannot use this judgment as a verity so far as it tends to establish his cause of action, and then turn and treat it as a falsity, subject to be contradicted and overthrown by oral ■evidence in so far as the findings upon which it rests are found unfavorable. The judgment-roll which the plaintiff invokes to establish his cause of action, destroys it.

The order granting a new trial is affirmed, with costs to abide the event.

Hardin, P. J., concurred; Poardman, J., not voting.

•Order granting new trial affirmed, with costs to abide the event.

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Follett, J.:

It is not claimed that the title to any part of the land conveyed has failed, but that the village of Ithaca has opened to its legal width and worked a public street which had been laid out prior to-the conveyance by the defendants’ testator, using for this purpose a strip of the land conveyed about twelve feet in width. The existence of a public street or highway, legally, laid out and openly traveled, upon land conveyed with a covenant of warranty, does not, if the public have but an easement, amount to a breach of warranty. (Whitbeck v. Cook, 15 Johns, 483; Wilson v. Cochran, 46 Pa., 229.) If the soil of a street or highway is appropriated or used for other purposes, the owner may maintain trespass or ejectment against the intruder. (Goodtitle v. Alker, 1 Burr, 133; Cortelyou v. Van Brundt, 2 Johns., 357; Jackson v. Hathaway 15 id., 447.) In this 'State, opening a public street or highway to its legal width, or using it as a street, in not deemed a sufficient eviction to enable the owner to maintain an action against his grantor for the breach of a covenant of warranty. Whether the existence of a [149]*149public street or highway, is a breach of a covenant against incumbrances, is a question upon which the decisions of the various States do not agree. (3 Wash. R. P. [4th ed.J, 460, 462.)

The sole foundation of this action is the judgment in the case of -the village of Ithaca against this plaintiff, the' judgmeniroll in -which case was introduced in evidence by the plaintiff, by which it ■appears that the land from which the plaintiff claims to have been evicted, was a legal public street at the date of the grant of defendants’ testator to Todd, and also at the date of the grant of Todd to ■the plaintiff. The plaintiff cannot use this judgment as a verity so far as it tends to establish his cause of action, and then turn and treat it as a falsity, subject to be contradicted and overthrown by oral ■evidence in so far as the findings upon which it rests are found unfavorable. The judgment-roll which the plaintiff invokes to establish his cause of action, destroys it.

The order granting a new trial is affirmed, with costs to abide the event.

Hardin, P. J., concurred; Poardman, J., not voting.

•Order granting new trial affirmed, with costs to abide the event.

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43 N.Y. Sup. Ct. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hymes-v-esty-nysupct-1885.

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