Rogoff v. Neal Vanderbilt Sons Corp.

263 A.D. 841, 31 N.Y.S.2d 570, 1941 N.Y. App. Div. LEXIS 5213

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1941
• Status: Published

Opinion

In an action in ejectment judgment was awarded to plaintiff. Judgment reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Defendant Neal Vanderbilt Sons Corporation is the record owner and defendant Vanbro Construction Corporation was the lessee in possession of the disputed parcel at the time of the commencement of the action. Plaintiff is, and for ten years has been, the owner of the adjoining premises and claims title to the disputed parcel by virtue of a claimed uninterrupted adverse possession for more than fifteen years by himself and his predecessors in title. It is conceded that plaintiff’s deed and the deed of his predecessors do not cover the area in question and he does not assert adverse possession under a claim founded upon a written instrument. There is no evidence of an intent on the part of the plaintiff’s predecessors in title to transfer possession to plaintiff of the disputed area and, therefore, there is no privity in contract between plaintiff and his predecessors in title and their possession cannot be tacked on to his to make up the necessary fifteen years. Belotti v. Bickhardt (228 N. Y. 296), relied upon by plaintiff, is readily distinguished. In that case there was evidence of an intent to convey more than the land which the deed specifically described. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur. Settle order on notice.