Stoddard v. Kelly — 171 A.D. 927

Majority

p. 927

John H. Stoddard and Caswell W. Stoddard, Respondents, v. Martin Kelly and Nellie Kelly, Appellants. (Actions Nos. 1 and 3.) John H. Stoddard and Others, as Executors, etc., and Others, Respondents, v. Martin Kelly and Nellie Kelly, Appellants. (Actions Nos. 2 and 4.)

— The ordinary rule to receive an occupant’s declarations to characterize his possession and claim of title as adverse (Morss v. Salisbury, 48 N. Y. 636 , 642; Wigm. Ev. § 1778; Chamberlayne Ev. § 2602), was specially applicable to declarations by James Kelly, deceased, because some fragmentary statements as to his original occupation had already been elicited by plaintiff’s counsel. For excluding such testimony by the witness Hard-castle, the judgments must be severally reversed and new trials granted, costs to abide the event. Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ., concurred.

Cases cited

Morss v. Salisbury 48 N. Y. 636 N.Y. Comm'n App. at 642 p. 927