McIntyre v. Costello — 36 N.Y. St. Rep. 605

Majority

p. 605

Catherine McIntyre, Resp’t, v. Patrick Costello et al., App’lts.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Dower—Evidence op seizin in husband.

In an action for dower, evidence that the land was conveyed to plaintiff's husband by one who contracted for its sale as its owner and that her husband conveyed the same to defendant’s grantors, and that the latter have apparently been in possession under such title, tends to establish seizin in plaintiff’s husband, and is therefore admissible.

Appeal by defendants, James Carroll, Ellen Carroll and The German Savings Bank, from order denying motion for new trial ■oma case made.

Action of ejectment for dower.

Lewis Sanders, for app’lts; L. L. Kellogg, for resp’t.

Without passing upon the question of practice raised, it seems to be sufficient to say that all the questions involved in this appeal were determined when this case was before the general térm upon a previous occasion. 14 N. Y. State Rep., 369.

It is true that objections to evidence were taken upon this trial which were not insisted upon upon the previous trial. But this in no manner affected the question adjudicated upon the previous appeal, because then the complaint was dismissed because the evidence now objected to did not establish or tend to establish seizin in the husband of the plaintiff. Upon this trial the evidence is objected to because it did not so tend. Therefore the same proposition is raised and must be disposed of in the same manner.

It is not necessary to re-discuss that which was decided upon the previous appeal; but for the reasons then given we think the

Concurrence

p. 606

rulings of the court upon the trial of the case were correct and the judgment should be affirmed, with costs.

Bartlett, J., concurs.

As I am bound by the previous decision, I concur present any concurrence in such previous decision.