White v. Lancraft — 148 A.D. 692

Majority

p. 692

Eliza C. White and Others, Appellants, v. Henry S. Lancraft and Others, Respondents.

Second Department,

January 12, 1912.

Headnote

Summary proceedings —evidence — document showing title of petitioner.

In summary'proceedings to remove squatters from lands, it is error to refuse to allow the petitioner claiming a title derived from the State to introduce in evidence a document claimed to he letters patent in the absence of any .claim or proof by the respondent of a defeat in the title.

Appeal by the petitioners, Eliza 0. White and others, in summary proceedings instituted for the possession of land, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, rendered on the 16 th day of June, 19.11, dismissing the proceedings.

William H. Hale, for the appellants.

Robert J. Mahon, for the respondents.

Heither the return nor the briefs- submitted on the argument disclose the reason why the summary proceedings instituted herein were dismissed. The petition is in regular form and alleges title in fee in an undivided two-thirds of the premises in question to be in the petitioners-. The respondents are alleged to he ,u squatters ” upon the property, and the proceedings are instituted under subdivision 4 of section 3232 of the Code of Civil Procedure, which provides for the removal by

p. 693

■S'Um'maTy" pi’eceedin'gs1 of a person from real property “where he or the person to whom he has succeeded has intruded into or squatted upon any real property without the. permission of the person entitled to- the- possession thereof and the- occupancy thus commenced has- continued without permission from the latter.”" The answer denies the allegations of the petition excepting that it admits that respondents are in possession of a part of the premises in question.

The- petitioners’ title- to the property is alleged in the petition to- he derived from the S'taifee. Li support of their claim a certain document, referred to in the minutes as “ Letters Patent,” was offered in evidence and excluded under the respondents’ general objection., There is nothing, showing the propriety of such exclusion,, nor is any reason disclosed for the-- refusal of the- court to receive- evidence, of. the petitioners’ title- to the. property. Lfpon the exclusion of the-document the proceedings-were dismissed-on motion of the respondents^ The exclusion of the documentary evidence of the petitioners-’ title in the absence of any claim or proof of a, defect in- it was clearly error and the judgment must he reversed.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Judgment of the Municipal Court, reversed and new trial ordered, costs to abide the event.