Phillips v. Rome, Watertown & Ogdensburg Railroad

New York Supreme Court

Phillips v. Rome, Watertown & Ogdensburg Railroad

9 N.Y.S. 799, 30 N.Y. St. Rep. 41, 55 Hun 612, 1890 N.Y. Misc. LEXIS 382

DecidedFebruary 11, 1890

StatusPublished

This text of 9 N.Y.S. 799 (Phillips v. Rome, Watertown & Ogdensburg Railroad) 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.

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Phillips v. Rome, Watertown & Ogdensburg Railroad, 9 N.Y.S. 799, 30 N.Y. St. Rep. 41, 55 Hun 612, 1890 N.Y. Misc. LEXIS 382 (N.Y. Super. Ct. 1890).

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Opinion

Hardin, P. J.

1. After a careful examination of the exceptions taken during the progress of the trial, we are of the opinion that they present no error requiring an interference with the decision made at the circuit.

[800]*8002. Section 1639 of the Code of Civil Procedure prescribes what the complaint, must set forth in actions of this character, and subdivision 3 thereof is as follows: “That the defendant unjustly claims an estate therein of the character specified in the last section.” The complaint sufficiently complies witli that provision of the statute, as it contains the following language, viz.: “That, the defendant unjustly claims an estate in these premises in fee or for life, or for a term of years, not less than ten years, or in reversion or remainder, by virtue of a lease or conveyance made by said Carthage, Watertown & Saekett’s Harbor Railroad Company, which said lease or conveyance, and all rights-thereunder, the defendant the R., W. & O. R. R. Co. now claim to own.”

Upon the trial, no motion for a nonsuit or to dismiss the plaintiff’s complaint was made when the plaintiff rested, nor at the close of the evidence. In Davis v. Read, 65 N. Y. 566, some of the defendants appeared and disclaimed, but as to them it was held that an issue was raised which threw the-“burden upon the plaintiff of establishing the fact of their claim,” and, no-evidence having been given thereon, the complaint should have been dismissed as to them, with costs. In the case before us no such disclaimer was made by the pleadings, nor by any position taken upon the trial. Under such circumstances, we think that we should assume that the Utica & Black River Railroad Company, as well as the other corporation, made claim to the property in question, and that it cannot now be heard to raise the objection that no proof was given by the plaintiff as to their claim. Fisher v. Hepburn, 48 N. Y. 41; Davis v. Read, 65 N. Y. 566; Barnard v. Simms, 42 Barb. 304.

3. The mortgagees are not parties to this action, and their rights cannot be affected thereby, and it is therefore unimportant to consider the questions suggested by the appellants’ points in respect to their supposed claims upon the premises in question. By section 1645 of the Code of Civil Procedure, it. is provided that the final judgment “must be to the effect that the defendant, and every person claiming under him by title accruing after the filing of the-judgment roll, or of the notice of the pendency of the action, * * * be-forever barred from all claim to any estate of inheritance, or for life, or for a. term of years, not less than ten, in the property. ” The mortgagees referred to did not hold title (or even a lien) accruing after the filing of the judgment roll.

The instrument of February 1, 1872, executed by the Carthage & Saekett’sHarbor Railroad Company, leased “all its property, real, personal, and mixed, by them acquired for their railroad purposes, or pertaining thereto, now held or owned by them therefor.” It satisfactorily appeared by the evidence that the premises in question were not acquired for railroad purposes, and they were not “held or owned by them [the railroad] therefor.” In the subsequent clause in the lease it was provided that the instrument (a lease) should, upon, a certain condition, become and be “a lease of the entire road, and railroad property and appurtenances, as above provided, in regard to the road from Carthage to Watertown; from Carthage to Sackett’s Harbor; and then all and singular the provisions and agreements herein contained shall be deemed to-be, and shall in all places be taken and applied to, a lease of the entire road, ” with certain exceptions not important to mention. We think this latter language is to be construed with that to which we have just referred, and that the premises in question were not “acquired for railroad purposes or pertaining thereto;” and we are also of the opinion that the premises were not “held or owned by them [the Carthage Railroad Company] therefor;” and that the-proper construction was given at the circuit of the instrument in question. And we are satisfied with the views expressed in the opinion delivered by the-trial judge on the subject of the plaintiff’s title to the premises, and his right to maintain this action. We think the decision is right on the merits, and. should be sustained. Judgment aflirmed, with costs.

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Hardin, P. J.

1. After a careful examination of the exceptions taken during the progress of the trial, we are of the opinion that they present no error requiring an interference with the decision made at the circuit.

[800]*8002. Section 1639 of the Code of Civil Procedure prescribes what the complaint, must set forth in actions of this character, and subdivision 3 thereof is as follows: “That the defendant unjustly claims an estate therein of the character specified in the last section.” The complaint sufficiently complies witli that provision of the statute, as it contains the following language, viz.: “That, the defendant unjustly claims an estate in these premises in fee or for life, or for a term of years, not less than ten years, or in reversion or remainder, by virtue of a lease or conveyance made by said Carthage, Watertown & Saekett’s Harbor Railroad Company, which said lease or conveyance, and all rights-thereunder, the defendant the R., W. & O. R. R. Co. now claim to own.”

Upon the trial, no motion for a nonsuit or to dismiss the plaintiff’s complaint was made when the plaintiff rested, nor at the close of the evidence. In Davis v. Read, 65 N. Y. 566, some of the defendants appeared and disclaimed, but as to them it was held that an issue was raised which threw the-“burden upon the plaintiff of establishing the fact of their claim,” and, no-evidence having been given thereon, the complaint should have been dismissed as to them, with costs. In the case before us no such disclaimer was made by the pleadings, nor by any position taken upon the trial. Under such circumstances, we think that we should assume that the Utica & Black River Railroad Company, as well as the other corporation, made claim to the property in question, and that it cannot now be heard to raise the objection that no proof was given by the plaintiff as to their claim. Fisher v. Hepburn, 48 N. Y. 41; Davis v. Read, 65 N. Y. 566; Barnard v. Simms, 42 Barb. 304.

3. The mortgagees are not parties to this action, and their rights cannot be affected thereby, and it is therefore unimportant to consider the questions suggested by the appellants’ points in respect to their supposed claims upon the premises in question. By section 1645 of the Code of Civil Procedure, it. is provided that the final judgment “must be to the effect that the defendant, and every person claiming under him by title accruing after the filing of the-judgment roll, or of the notice of the pendency of the action, * * * be-forever barred from all claim to any estate of inheritance, or for life, or for a. term of years, not less than ten, in the property. ” The mortgagees referred to did not hold title (or even a lien) accruing after the filing of the judgment roll.

The instrument of February 1, 1872, executed by the Carthage & Saekett’sHarbor Railroad Company, leased “all its property, real, personal, and mixed, by them acquired for their railroad purposes, or pertaining thereto, now held or owned by them therefor.” It satisfactorily appeared by the evidence that the premises in question were not acquired for railroad purposes, and they were not “held or owned by them [the railroad] therefor.” In the subsequent clause in the lease it was provided that the instrument (a lease) should, upon, a certain condition, become and be “a lease of the entire road, and railroad property and appurtenances, as above provided, in regard to the road from Carthage to Watertown; from Carthage to Sackett’s Harbor; and then all and singular the provisions and agreements herein contained shall be deemed to-be, and shall in all places be taken and applied to, a lease of the entire road, ” with certain exceptions not important to mention. We think this latter language is to be construed with that to which we have just referred, and that the premises in question were not “acquired for railroad purposes or pertaining thereto;” and we are also of the opinion that the premises were not “held or owned by them [the Carthage Railroad Company] therefor;” and that the-proper construction was given at the circuit of the instrument in question. And we are satisfied with the views expressed in the opinion delivered by the-trial judge on the subject of the plaintiff’s title to the premises, and his right to maintain this action. We think the decision is right on the merits, and. should be sustained. Judgment aflirmed, with costs.

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9 N.Y.S. 799, 30 N.Y. St. Rep. 41, 55 Hun 612, 1890 N.Y. Misc. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-rome-watertown-ogdensburg-railroad-nysupct-1890.

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