Murray v. Molloy — 44 N.Y. St. Rep. 744

Majority

p. 744

Eliza J. Murray, Appl’t, v. Catharine Molloy et al., Resp’ts

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Ejectment—Title.

In an action of ejectment between adjoining owners, it appeared that, plaintiff’s grantor had previously held a mortgage which covered the strip>

p. 745

in question, which he released, therefrom, and that the subsequent deeds of the mortgagor under which plaintiff claims did not embrace the disputed strip, but the description in the deeds under which defendant claims were sufficient to support a finding that the change made by the release entered into the description of her lot. Held, that a dismissal of the complaint was proper.

Appeal from judgment dismissing complaint, entered on the report of a referee.

Action of ejectment for a strip of land.

iS. S. Hemingway, for app’lt; Frederick Cobb, for resp’ts.

The plaintiff in August, 1880, became the -owner of lot 21, on a map recorded in Kings county in liber 939, page 232. The defendant is the owner of lot 22, which adjoins 21 on the west. When the plaintiff acquired title to lot 21, she took possession and held it for many years. In 1889 the defendant took possession of a piece of land in the occupation of plaintiff, being the piece of land described in the complaint. The sole ■question was one of fact. The plaintiff obtained title front one Moses Littell. The title originally was in Frederick B. Hill. Hill gave a mortgage to Littell, and Littell released the strip in question back to Hill The deeds from Hill of the property in question did not, after this release, embrace the disputed strip of land down to the time plaintiff bought.

At least this is the finding, and the surveyors differ as to the fact. The description in the deeds under which defendant claims title support the finding that the change made by the release •entered into the description of the lot 22, which defendant owns.

There is nothing in the release from which an appellate court ■can say that the finding is unsupported by the evidence.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.