Weeks v. Becken — 4 N.Y.S. 957

Majority

p. 957

Weeks v. Becken.

(Supreme Court, General Term, Second Department.

February 11, 1889.)

Headnote

Appeal from circuit court, Suffolk county.

Action for trespass to real property by William J. Weeks against John F. Becken. Verdict and judgment for defendant, and plaintiff appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Charles R. Smith, for appellant. George F. Stackpole and Timothy M. Griffing, for respondent.

The only question submitted to the jury was whether the parties had settled upon a line other and different from the mathematical line stated in the deed. There was testimony to the effect that the line had been located by consent, and the verdict shows the jury must have given credit to the evidence; otherwise the verdict must have been for the plaintiff. We think the evidence justifies the submission of the question to the jury, and that the verdict is properly supported. There are some exceptions to the exclusion of evidence offered by the plaintiff, but none of the testimony thus excluded bore upon the question submitted to the jury. The exclusion was therefore not prejudicial to the plaintiff, even if erroneous, of which we are not convinced. Judgment affirmed, with costs.