Warner v. Will — 56 N.Y. St. Rep. 55

Majority

p. 55

Gottleib W. Warner, App’lt, v. Fredericka Will, Resp’t.

(City Court of Brooklyn, General Term,

Filed October 23, 1893.)

Headnote

Adverse possession—Specific performance.

Proof that a deed of land was given to plaintiff’s ancestor in 1869, and that he built a fence around such land and built a house thereon seventeen years ago, in which he lived until his death, is not sufficient to show a title hjr adverse possession which is so free from reasonable doubt as to authorize a judgment for specific performance of a contract to purchase said land.

Appeal from judgment in favor of defendant

Martin _E Halpm, for app’lt; Howard C. Conrady, for resp’t,

This action was brought by the plaintiff to compel the specific performance of a contract by the defendant, whereby the defendant agreed to purchase of the plaintiff an undivided half of certain real estate on Kane place, in this city. The defendant, after an examination of the title by her attorney, declined to carry out her agreement, on the ground that the plaintiff did not have title to the property. Plaintiff claimed that

p. 56

he had title by adverse possession. There was judgment for defendant at special term, and plaintiff has taken this appeal. We think that the testimony in the case is entirely insufficient to-establish the claim of plaintiff. The defendant proved a perfect record title in the Brooklyn & Jamaica Railroad Company, who received their deed about March 27, 1866. On the other hand, plaintiff, as a foundation of his title, put in evidence a deed by one Jacob H. Stackman, dated October 11, 1869, to Joseph Koehl and Antonia Koehl, and showed that, by descent, he obtained the title of such grantors, if any, to an undivided half. The only oral testimony on the point was given by the plaintiff:

“I remember and recollect the time when my father and mother bought this Kane place property. After it was bought, what was done with it by my father and mother was, a fence was put around it, and it was lying idle. The house will be built; on the 1st day of June it will be seventeen years. My father and mother had possession of that property from the time they bought, it from Mr. Stackman up to the time of their death. They lived on it since the day it was built On'the 1st day of June last it-was finished sixteen years.”

The authorities cited by the counsel for plaintiff are actions at law, or, if in equity, where the testimony showed conclusively adverse possession for a much longer period than twenty years. If we assume the truth of the testimony of the plaintiff, the defendant, if she took title, might be sued by the owner of record, the Brooklyn & Jamaica Railroad Company, and the testimony of plaintiff in this case, when given in such action, would not justify the direction of a verdict. We do not hold that plaintiff had no title to the property, but we do think that the title offered was not free from reasonable doubt. Dingley v. Bon, 180 N. Y., 607 42 St. Rep., 646 .

Judgment affirmed, with costs.

Yan Wyck, J., concurs.