Ramapo Manufacturing Co. v. Mapes

155 A.D. 443, 140 N.Y.S. 490, 1913 N.Y. App. Div. LEXIS 5109

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1913
• Status: Published

Opinions

The following is the opinion of the Special Term:

Tompkins, J.:

The complaint described the tract of land in dispute between the parties, and alleged the plaintiff’s ownership of it, and the defendant’s claim to it, and the erection upon it by the defendant of a fence by which it was inclosed with other lands concededly owned by the defendant, so that the issue between the parties was as to the ownership of the particular tract of land that was described in the complaint by metes and bounds, the defendant claiming that the tract in dispute was included with other lands in a deed made by the plaintiff in 1871 to one Henry L. Pierson, the plaintiff contending that the deed from the plaintiff to the said Hemy L. Pierson did not include the land in question. The defendant further claimed that if it was not conveyed to Pierson she and her predecessors in title under the said Pierson deed had acquired the land in question by adverse possession, so that two questions were distinctly submitted to the jury. The first was whether the tract described in the complaint was included in the Henry L. Pierson deed, and the second was whether, if such deed did not include the land in dispute, the defendant and her predecessors had acquired such disputed land by adverse possession, and the jury was clearly charged that if the said Pierson deed did include the land in dispute, their verdict would be for the defendant, and that if said deed did not include the land in dispute, the next question for them to consider and determine would be, had the defendant and her predecessors become entitled to the possession of the land by adverse possession, and that if they had the verdict would be for the defendant, and that if the jury found that the land was not included in the Henry L. Pierson deed, and that the defendant and her predecessors had not acquired it by adverse possession, the verdict must be for the plaintiff. There was no request for the submission to the jury of any specific question, and the verdict rendered was a general one in favor of the plaintiff upon the two questions submitted. The defendant’s counsel made no request in respect to the form of the verdict, and acquiesced in the submission of the case in the form in which it was submitted to the jury, and besides made several requests, one of which was in the following language: “I ask your Honor to charge the jury that if the jury believe from the evidence that the defendant’s predecessors in title and the plaintiff’s predecessors in title for a period of twenty years or more treated the lines up to the place where the defendant has now constructed its fence as the division lines between the abutting properties, they must find a verdict for this defendant.” To which the court replied: “I so charge, if there is any evidence in the case to justify such a finding.”

And again, “I ask your Honor to charge the jury that if the jury find that any of the defendant’s predecessors in title acquired title to the premises in dispute by adverse possession then they must find a verdict for the defendant.”

And again, “ I ask your Honor to charge that the plaintiff cannot recover the land involved in this action on the weakness of the defendant’s title. If the plaintiff has not shown by a preponderance of evidence that it is entitled to recover the land at issue, even though the defendant has not proven its title, the verdict of the jury must be for the defendant.”

It will be seen by reference to the record of the trial and the charge to the jury (which has been submitted by counsel with the other papers upon this motion) that the case was tried and submitted to the jury with the consent of counsel on both sides upon the theory that the only question for the jury to determine was the right of the defendant to the possession of the particular tract of land described in the complaint by virtue of the deed from the plaintiff to Henry L. Pierson or by reason of adverse possession and with the acquiescence of all parties in the direction given by the court to the jury to find and return a general verdict either in favor of the plaintiff or the defendant.

The cases cited in the defendant’s brief on this motion do not seem to apply. In the case of Shanley v. Murty (134 App. Div. 845) there was no general verdict rendered by the jury, and the complaint did not describe the land in dispute, and the Appellate Division in its opinion states that the court ci inadvertently omitted to take or order a general verdict.”

In the case of De Clemente v. Winstanley (8 Misc. Rep. 45) the form of the verdict of the jury was that the plaintiffs are “ entitled to the possession of the strip of land described in the complaint.” As a matter of fact, no “strip of land” was described in the complaint. The only property referred to in the complaint was premises known as No. 185 York street, being 25 by 100, which the plaintiffs alleged they were the owners of and which was conceded to belong to them and “ the adjoining lot on the west side of the above-described premises,” which the complaint alleged belonged to the defendants, and the General Term of the City Court of Brooklyn in its opinion said: “This judgment, literally construed, would entitle plaintiffs to possession of their own lot and to that of the defendants. If execution to enforce this judgment was issued to the sheriff it would furnish him no clue to carry it out.”

In other words, the complaint in that action described the plaintiffs’ land and the defendants’ land adjacent thereto and sought to have the line between the two properties established where the plaintiffs claimed it should be, and the jury found that the plaintiffs were “ entitled to the possession of the strip of land described in the complaint,” not locating the disputed boundary line, and the court held that the verdict was not in proper form because it in effect declared that the plaintiffs were entitled to the possession of their own land, as well as the land that concededly belonged to the defendants, both of which properties were described in the complaint.

In the case at bar, the complaint distinctly and specifically described the tract of land in dispute, and the issues between the parties were first, whether that tract of land belonged to the defendant by reason of its having been included with other lands in the Henry L. Pierson deed; and second, if it was not included, whether the defendant had become the owner of it by adverse possession. If upon either of these propositions the jury found in the defendant’s favor, the jury were told that they must render a general verdict for the defendant, and if upon both of these questions they found in favor of the plaintiff, they were directed to render a verdict accordingly.

I think under all the circumstances that the verdict was proper, and that the motion should be denied.