Sanger v. Merritt — 39 N.Y. St. Rep. 894

Majority

p. 894

Mary E. Sanger et al., App’lts, v. John C. Merritt, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

"Ejectment—Title—Allotment of land.

On a former appeal in this case the court of appeals held that the allotment, in 1793, of land to Hartt, plaintiffs’ predecessor in title, was void as in violation of the act for the prevention of fraud; that there was no evidence that he was one of the original proprietors, or that he ever claimed to own or entered on the land. Held, that evidence on the last trial that Hartt’s father was an original proprietor, and conveyed his rights to Hartt by will in 1794, and that Hartt,_paid for a survey, was not sufficient to show that the allotment was valid.

p. 895

Appeal from judgment dismissing the complaint.

Action of ejectment. This is the fourth trial of the action. On this trial evidence is claimed to have been given that John Hartt’s father was one of the original proprietors of the land; that John Hartt became possessed of his interest in the common lands under his father’s will, in 1794; that the land was set apart to him in 1793; that he paid for a survey thereof; that the land in question was known by his name.

Sanger & Davis, for app’lts; Thomas Young, for resp’t.

—This is an action of ejectment. It has been tried four times. The defendant had a verdict on the first trial, in April, 1882. Plaintiff paid the costs and took a new trial under the statute. It was tried again in October, 1883, resulting in a second verdict in favor of defendant. Judgment was entered October 25, 1883, from which plaintiff appealed, and the result was an order for a new trial -in February, 1885. 35 Hun, 669 . It was tried again in February, 1886, when a verdict was directed for the plaintiff. Judgment was entered on this verdict February 16, 1886, and defendant appealed. The general term affirmed the judgment. Defendant appealed to the court of appeals and this judgment was reversed and a new trial ordered. 120 N. Y., 109 ; 30 N. Y. State Rep., 870.

The cause was again tried in October, 1890, resulting in a dismissal of the complaint. Judgment was entered on this decision December 19, 1890, and now the plaintiff appeals again.

The learned trial judge granted defendant’s motion to dismiss, holding that the plaintiff had not proved facts sufficient to justify submitting the cause to a jury, if one had been present.

The plaintiff claimed title to a lot of wood land in the town of Huntington, Suffolk county, through one Hartt She claimed, and it was conceded, that the land was owned by the town prior to April 12, 1793. She offered proof tending to show that the holders and proprietors of lands in the town met in 1792 and appointed four trustees to act for them in respect to said lands, and that on April 12, 1793, these trustees allotted this land in question to Hartt, and that the town authorities subsequently ratified that allotment. The court of appeals has held that this allotment was not sufficient to pass a title, and that since there was no evidence before it showing that Hartt was a proprietor at the time of the allotment, or that he ever entered into possession under it, there was nothing to sustain the theory of a valid parol partition. Hence, the questions before us are, whether or not plaintiff met these difficulties on the last trial.

We do not see that plaintiff changed the essential features of the case on the new trial, or that she offered any evidence which, if received, would have wrought such change. ' Hence, we think, the judgment should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.