Lewis v. Upton

90 A.D. 453, 86 N.Y.S. 397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1904
• Status: Published

Opinions

Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought under section 1638 of the Code of Civil Procedure to compel the determination of a claim to real property. The plaintiff claimed that he had a record title, to the real property and that he had also acquired title thereto by adverse possession.

Upon a former trial of the action both these questions were submitted to the jury under the instruction of the court that the plaintiff could recover if it was found that he had either a record title or a title acquired by adverse possession. The jury rendered a general verdict for the plaintiff. Upon appeal to this court it was held that there was no evidence to support the verdict if it was based upon the claim of a record title, because the deed under which he claimed did not cover the property in question. The court also held that the- question of title acquired by adverse possession was one of fact for the jury. (52 App. Div. 617.)

Inasmuch as the court could not say upon which claim the jury based its verdict, it was compelled to reverse the judgment and direct a new trial upon the question of adverse possession alone. Thereupon the case was again tried, and the decision of this court followed. The question of a record title was eliminated from the case, and the question of title by adverse possession was submitted to the jury. The plaintiff again had a verdict. Upon an appeal to this court it is now claimed that there was no question for the jury upon this issue, and that the trial court should have held as matter of law that the plaintiff acquired no title to the property by adverse possession. This court having once passed upon that question, on practically the same class of evidence, we should adhere to our former decision and leave the question to be considered by the Court of Appeals should the defendants desire to take the case to that court. If this court had held upon the former appeal that there was no question for the jury as to adverse possession, the case could then have gone directly to the Court of Appeals; but, under the decision then made, a new trial became necessary and it was had at considerable expense to the parties, and the result of such trial should not now be nullified by reversing our former decision. Moreover, upon the merits, we are of the opinion that the various questions involved in the claim of title by adverse possession, including the occupation and cultivation of the property and the protecting of the same by substantial inclosure, were properly submitted to the jury, and the evidence was sufficient to support the verdict rendered.

Ho errors in the admission or rejection of evidence, or in the charge of the court, were committed, calling for a reversal of the judgment.

The judgment and order should, therefore, be affirmed, with costs.

All concurred, except McLennan, P. J., dissenting in an opinion in which Stover, J., concurred.