McKay v. Nichols

197 A.D. 246, 188 N.Y.S. 799, 1921 N.Y. App. Div. LEXIS 7443

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1921
• Status: Published

Opinion

Putnam, J.:

The verdict as originally entered was: “The defendant is entitled to the land upon which the house stands and the plaintiff is entitled to the land back of the house along the fence.” After denial of a motion for a new trial, the original judgment was entered. But this was later resettled so as to adjudge to the defendant the land beneath her house, and to plaintiff the gore in the rear by the back fence, these last being described by surveyed lines and as containing twenty-eight and seven-tenths square feet. Plaintiff also taxed full costs.

The first question arises on the regularity of this verdict and the judgment as thereon entered, in view of section 1519 of the Code of Civil Procedure, that the verdict “ specify the estate of the plaintiff in the property recovered.” . While the jury might have been sent back and so have made a more definite finding, especially as to the rear part by the fence, this was not indispensable.

* Here was no question of the respective . estates or interests. Each side claimed an estate in fee, the defendant also relying on the defense of adverse possession. The later addition- to the Nichols house built in 1892 was set on original foundations which had stood unchanged in site for many years before 1892. Therefore, judgment could properly be entered upon this informal, but plain verdict, which in popular speech settled these differences and validated defendant’s building line. As finally resettled, the judgment declared defendant “ entitled to * * * that portion of the land in controversy on which the dwelling house of the defendant stands,” which is better than to bound this irregular four-inch strip by surveyor’s courses. It was certain, and sufficient for all practical purposes. (19 C. J. “ Ejectment,” § 287.) The judgment 'as entered was not defective.

Although plaintiff was in part unsuccessful, the recovery rightly carried costs. (Code Civ. Proc. § 3228.) While a defendant in ejectment may be awarded costs on a separate issue (Code Civ. Proc. § 3234), this is not such a case, since defendant did not maintain her claim to a full boundary across, so as to be entitled to costs on this issue. (19 C. J. 1231, § 347.)

While the complaint concluded with a prayer for equitable relief, the cause was not so treated, but was tried as an ejectment action; hence, defendant cannot urge the rules in equity as to costs.

I advise, therefore, that the judgment and orders appealed • from be affirmed, with costs.

Present — Blackmar, P. J., Mills, Rich, Putnam and Jaycox, JJ. •

Judgment and orders unanimously affirmed, with costs.

Buie 241 of the new Buies of Civil Practice has inserted the wouds specify “in writing” the estate of the plaintiff in the property recovered, etc., but is a new requirement.— [Note by the Court.