De Lancey v. Piepgras — 26 N.Y.S. 806

Majority

p. 806

(73 Hun, 607.)

DE LANCEY v. PIEPGRAS.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Execution—Amendment.

Where a judgment for the delivery of real property is amended so as to conform substantially to the conditions of a grant, as directed by a judgment of the court of appeals, and execution is issued thereon, and afterwards, at the instance of the execution defendant, the judgment

p. 807

Is further amended by inserting the exact words of the grant, the court may also amend the execution by the insertion of such words, where the rights of defendant will not be prejudiced thereby.

Appeal from special term, Kings county.

Action by Elizabeth D. De Lancey against Henry Piepgras and ethers. Prom so much of an order entered July 7, 1893, as amended the execution by inserting therein the exact words of the grant from George HI. by Robert Honckton, captain general, to Benjamin Palmer, and from so much of said order as refused to reverse and set aside the execution as unauthorized, and also from so much of said order as refused to reverse and set aside the proceeding of the sheriff in delivering the possession of said premises to plaintiff, defendant Piepgras appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Geo. A. Black, for appellant.

Walter D. Edmonds, for respondent De Lancey.

John Hunter, Jr., for respondent Hunter.

Judgment was entered in this action on the 19th of June, 1891. The court of appeals had modified the judgment of the supreme court so as to conform to the conditions contained in the grant from George HI., king of Great Britain, by Robert Monckton, captain general, to Benjamin Palmer, May 27, 1763. 33 N. E. 822 . Before the entry of judgment, the modification was made, in substance, so as to conform to the decision of the court of appeals, and execution was issued on the 24th of June, 1893, for the recovery of the possession of the premises. Subsequent to the issue of the execution, the defendant Piepgras applied to the court to insert the very words of the conditions in the Palmer grant, but directed the amendment to be made nunc pro tune, as of the date of the entry of judgment. There is nothing in the judgment, as modified, which will permit the defendant Piepgras to keep possession of a dock and other structures erected upon the plaintiff’s land. A judgment to recover possession of plaintiff’s land takes all wrongfully created upon it. An action of ejectment would be of no use if such structures had any influence upon the question of the title, which alone fixes the rights of the parties. The amendment was within the power of the court. Code, §§ 721-723. The order should therefore be affirmed, with costs. All concur.