De Lancey v. Piepgrass — 56 N.Y. St. Rep. 835

Majority

p. 835

Elizabeth D. De Lancey, Resp't, v. Henry Piepgrass, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Ejectment—Judgment.

A judgment to recover possession of land takes all structures wrongfully created upon it.

2. Amendment—Execution.

The court may allow an execution, in an action of ejectment, to be amended by inserting words which have been inserted in the judgment at the instance of the defendant, where the latter’s rights will not be prejudiced thereby.

Appeal from so much of an order entered July 7, 1893, as amended an execution.

p. 836

George A. Black, for app’lt; Walter D. Edmonds, for resp’t, De Lancey ; John Hunter, Jr., for resp’t, Hunter.

Judgment was entered in this action on the 19th of June, 1891. The court of appeals had modified the judgment of the supreme court so as to conform to the conditions contained in the grant from George the III., King of Great Britain, by Robert Monkton, Captain General, to Benjamin Palmer, May 27, 1683. Before the entry of judgment, the modification yras made in substance so as to conform to the decision of the court of appeals, and an execution was issued on the 24th of June, 1893, for the recovery of the possession of the premises. Subsequent to the issue of the execution, the defendant, Piepgrass, applied to the court to insert the very words of the conditions in the Palmer grant, but directed the amendment to be made nunc pro tunc as of the date of the entry of judgment. There is nothing in the judgment as modified, which will permit the defendant, Piepgrass, to keep possession of a dock and other structures erected upon the plaintiff’s land. A judgment to recover possession of plaintiff’s land takes all wrongfully created upon it. An action of ejectment would be of no use if such structures had any influence upon the question of the title, which alone fixes the rights of the parties.

The amendment was within the power of the court. Code, 721, 722, 723.

The order should therefore be affirmed, with costs.