Burns Bros. v. City of New York

Headnote

Real property — title — action to determine title to real property — when neither party in position to eject the other.

Burns Bros. v. City of New York, 178 App. Div. 615 , affirmed.

Cross-appeals from a judgment, entered June 26,1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing a dismissal of the complaint, the counterclaim and defendant’s prayer for affirmative relief. The action was brought pursuant to the provisions of sections 1638 ei seq. of the Code of Civil Procedure to compel the determination of a claim to certain real property bounded northerly by the south side of One Hundred and Seventh street; easterly by the Harlem river; southerly by the northerly side of One Hundred and Sixth street and westerly by what would be the easterly line of Avenue A, if said avenue were physically laid out, in the borough of Manhattan, city of New York. The plaintiff claimed title in fee simple absolute by virtue

of an adverse possession, and demanded judgment that the defendant be barred from all claim to any estate, right, title, interest, hen, claim or demand, in, to or upon the premises. The defendant denied the plaintiff’s title and pleaded its own title in fee simple absolute, and demanded judgment that the complaint be dismissed; that the; defendant be declared seized of and entitled to the possession of the premises, and that the plaintiff be barred from any estate, right, title, interest, easement, hen, claim or demand in, to or upon the property herein-before described except easements of light, air and access. The Appellate Division held that each of the parties hereto had rights in the property, and so far as appeared in this action could continue to hold and enjoy the same, and that neither one was in position to eject the other therefrom.