Finelite v. Sinnott — 24 N.Y. St. Rep. 28

Majority

p. 28

Jacob Finelite, Pl’ff and App’lt, v. John Sinnott, Def’t and Resp’t.

(New York Superior Court,

General Term,

Filed May 6, 1889.)

Headnote

1. Ejectment—Action of—Plaintiff must depend on strength of his OWN TITLE, NOT .ON WEAKNESS OF HIS OPPONENT’S.

In an action of ejectment, the plaintifE must depend for success on the strength of his own title only, and in nowise on the weakness of his opponent’s.

2. Same—Complaint in—When not error to dismiss.

The complaint did not set forth the exact dimensions or the exact locality of the premises claimed, and the description in the will, under which he claimed, was not clear or definite, but described the width of the lot of ground devised as “being about thirty feet," etc., and the defects were not cured on the trial—the trial judge dismissed the complaint- Held, not error.

Finelite & Fine, for app’lt; Arnoux, Bitch & Woodford, for resp’t.

J.—This is an appeal taken by the plaintiff from a judgment against him on dismissal of his complaint.

The action is brought to eject the defendant from premises of which plaintiff claims to be the owner in fee, situated at the corner of Chatham street and Baxter, in the city of New York.

The premises are thus described in the complaint:

“Beginning at a point on the westerly, side of Baxter street, distant ninety feet one inch from the northwest corner of Chatham and Baxter streets; thence running northerly and along the westerly side of Baxter street one foot to other land, occupied by said defendant; thence westerly at right angles to Baxter street, and along the line of the land now owned by said defendant, thirty-three feet six inches to land now or late belonging to Silcox; thence southerly and along said last mentioned lands two feet and eleven inches to land now owned and in the possession of this • plaintiff; and thence easterly thirty-three feet six inches to the point or place of beginning.”

p. 29

Both the plaintiff and the defendant claim title to these premises under the will of one Blaze Moore, executed in 1817, and duly admitted to probate and recorded in 1820. ■

The part of the will, on which the plaintiff relies, is as follows:

“I give and devise unto my said daughter, Rosanna Winter, all and every my messuages, houses and lot or lots of ground fronting on Chatham street, in the city of Hew York, adjoining Orange street, the same being about thirty feet wide in front, and sixty-six feet in length. I also give and devise, unto my said daughter Rosanna, a lot of ground, front on Orange street, directly in the rear of and adjoining the said last mentioned premises, being about twenty-seven feet in width, in front, and thirty-four feet in depth, to-have and to hold the said several lots, messuages and tenements, with the appurtenance to her, my said daughter Rosanna, for and during her natural life, and upon her decease the same shall go to and be held and enjoyed by my son, Augustus Winter, his heirs and assigns forever, to whom I give and devise the same accordingly.”

In an action of ejectment, it is the well known rule of law that the plaintiff must depend for success only on the strength of his own title, and in nowise on the weakness, of the title of his opponent.

In the case at bar, the plaintiff failed to satisfy the court as to the exact dimensions of the premises claimed to be the property of the plaintiff, or, of the exact locality in which they were placed.

The description in the devise was not clear or definite.

The words used “ being about ” thirty feet, etc., do not fix the dimensions, and a similar ambiguity is attached to all the other testimony produced by the plaintiff to sustain his case.

Every effort to cure the defect at the trial, failed.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.