Bernhard Voss, Appellant, v. W. J. Martin Coal Company et al., Respondents. (Two cases.)Headnote
Judgment — real property — title — action to set aside tax sale and, deeds as cloud on title —judgment too broad.In actions to set aside a tax sale and deeds as a cloud on plaintiff’s title to real property judgments not merely dismissing the complaint but adjudging defendants to be owners of the property in fee simple and barring the plaintiff from any interest therein are too broad. Conceivably the plaintiff has other claims of title not presented by the pleadings or the proofs.
Foss v. Martin Coal Co. (2 cases), 215 App. Div. 718 , 719, modified.
Appeal, in each of the above-entitled actions, from a judgment entered February 4, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to set aside a tax sale and deeds thereunder as a cloud on plaintiff’s title to real property in Freeport, Nassau county.
Harry Lesser for appellant.
Eugene L. Flanagan for respondent.
The form of the judgment is too broad in that the complaint is not merely dismissed upon the merits, but the defendant is adjudged to be the owner of the property in fee simple and the plaintiff is declared to be barred from any interest therein.
Conceivably the plaintiff has other claims of title not presented in this record either by the pleadings or by the proofs. Whether he will be at liberty to enforce them hereafter is a question not to be determined in advance of their assertion.
In each case the judgment should be modified by striking therefrom the adjudication that the defendant is the owner of the property in fee simple and that the plaintiff is barred from any interest therein, and as so modified affirmed, with costs to the respondent.
Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.
Judgment accordingly.