Clason v. Baldwin — 52 N.Y. St. Rep. 748

Majority

p. 748

Josephine F. Clason, Resp't, v. Elizabeth S. Baldwin, App'lt.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

1. Ejectment—Mesne profits—Appeal.

It is too late to raise the objection for the first time on appeal, that the amount of the verdict for mesne profits directed by the court in an action of ejectment exceeds the amount claimed in the complaint.

2. Same—Harmless error.

In an action of ejectment the motion of plaintiff for a direction confined the recovery of mesne profits between the dates beginning with the commencement of the action, down to the date of the trial, and the computation was made as of such dates, there being no dispute about the amount. Meld, that the fact that the court in directing a verdict said that the plaintiff was entitled to recover such profits for six years prior to ' the commencement of the action was a mere harmless slip and cannot be assailed as error on appeal.

3. Same—Taxes—Evidence.

In such case, the offer of defendant to prove the payment of taxes on the property in suit was properly rejected, the taxes not having been imposed nor paid for any of the period'for which damages were awarded nor was the defendant under any obligation to pay them.

Appeal by the defendant from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial in an action of ejectment.

Isaac N. Miller, for app'lt; Thamas M. Wyatt (George W. Stephens, of counsel), for resp’t.

At the close of the both sides moved for a direction, the defendant on the ground that plaintiff had failed to prove possession in herself, or her ancestors or predecessors, within twenty years next before the commencement of this action, and upon the further ground that defendant had shown that she held possession under a tax title, the validity and regularity of which had not been successfully impeached. The plaintiff asked for a direction in her favor, which was granted by the court, and a verdict for the recovery of the property, together with the mesne profits, was directed. The contest between these parties with respect to the title to this property has been twice before the general term, and once to the court of appeals. 31 St. Rep., 350 ; 37 id., 213; 129 N. Y., 183 ; 41 St. Rep., 496 . These decisions render unnecessary a statement of the facts, or any extended discussion of the law.

It would seem that the only difference between this record and that presented for review in 129 N. Y., 183 ; 41 St. Rep., 496 , is that the defendant resorted to the tax title as a defense. We have examined the testimony relating thereto, and the grounds upon

p. 749

which such title is assailed, and we agree with the view taken by the learned trial judge, that the plaintiff succeeded in destroying its force and effect as a defense. Apart, however, from the .question of title, it is insisted that it was error of law for the court to direct a judgment for $5,337, by way of damages for mesne profits. It is suggested that, inasmuch as the complaint demanded but $5,000, no greater amount could be awarded. The answer to this, however, is that no such objection was made upon the trial, nor was the court’s attention directed to this difference between the amount demanded in the complaint and the amount awarded, and, had it been, it would have been entirely within its power to have permitted an amendment to include such excess, the question of damages in such an action being incidental to the main relief, which was to recover possession of the property. Another argument urged is that the court, in directing a verdict, in the language used in the address to the jury, said, in substance, that the plaintiff was entitled to recover mesne profits for six years before the commencement of the action. It is evident, however, from the context, that this was a mere slip, which in no way prejudiced the defendant. The motion made by plaintiff for a direction confined the recovery of such profits between the dates beginning with the commencement of the action, down to the date of the trial, and the computation was made as of such dates, and not for six years before the commencement of the action, as stated by the trial judge. This being a mere harmless slip, and the record showing that there was no dispute about the amount, and the court’s attention not having been called to the difference between the amount awarded and the amount demanded, it cannot be assailed by the defendant as error upon this appeal. The defendant sought a credit for moneys paid for taxes for the years 1881 and 1882. The offer to prove such payment, having been made, was, we think, properly rejected. These taxes were not imposed nor paid for any of the period for which damages were awarded. The defendant was not under the slightest obligation to pay them, and, we think, besides, that no sufficient ground was made to render the certificate competent evidence. There being no other questions in the case requiring discussion, we are of opinion that the judgment appealed from should be affirmed, with cos's;

Yah Brunt, P. J., and Follett, J., concur.