Roby v. Yates — 53 N.Y. St. Rep. 535

Majority

p. 535

Sidney B. Roby, Pl’ff, v. Arthur G. Yates, Def’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1893.)

Headnote

Ejectment—Eminent domain—Abandonment.

Certain land of plaintiff was acquired by a railroad for its use, which was subsequently leased by the railroad to defendant to be used as a coal yard, which lease contained a reservation of the use of the track by the railroad, and defendant erected sheds shutting out the plaintiff and the public from said strip. Held, that by giving such lease the railroad forfeited and surrendered all its rights and interest in the land and that plaintiff was entitled to the same.

Motion by the defendant for a new trial upon exceptions directed to be heard at the general term in the first instance after verdict directed for the plaintiff at circuit.

William F. Cogswell, for pl’ff; Albert H. Harris, for deft.

This action was brought to recover from the defendant the possession of real estate in the city of Eochester,-which he held as tenant under a lease from the Hew York Central & Hudson Elver Eailroad Company.

The property is the same as that in question in an action brought ,b.y this plaintiff against said railroad company in which the plaintiff had judgment and which judgment was affirmed by this court, and which will be found reported in 48 St. Rep., 201 .

The plaintiff concededly is the owner in fee of the land.

All the rights the defendant claims to have in the property he got by the lease from the railroad company mentioned.

p. 536

All the interest the railroad company ever had in the premises was the right to their use for railroad purposes.

This court held in the action against the railroad company above mentioned, that it forfeited and surrendered all its rights and interest in the property to the plaintiff by giving to the defendant the lease under which lie now claims to hold the property.

The material evidence was the same in both cases, and the same question is presented for our decision as was presented in the railroad case. We do not see that the defendant’s case was in any way prejudiced by receiving in evidence the judgment roll in the railroad action, even if, as is contended by the defendant, it was not material evidence, for plaintiff had fully made out his case without that record.

The defendant's motion for a new trial should be denied, with costs, and judgment should be ordered for the plaintiff upon the verdict.

Dwight, P. J., Macomber and Haight, JJ., concur.