De Clemente v. Winstanley — 59 N.Y. St. Rep. 455

Majority

p. 455

Francis De Clemente et al., Resp’ts, v. Eliza H. Winstanley et al., App’lts.

(Brooklyn City Court, General Term,

Filed April, 1894.)

Headnote

1. Ejectment—Verdict.

In an action of ejectment, the verdict in favor of the plaintiff should define the land, of which he is entitled to the possession.

3. Same—Amendment.

If it fails to do so, it is too late to amend or correct it on appeal.

Appeal from judgment in favor of the plaintiffs.

G. G. & F. Reynolds, for app’lts ; F. R. Hartman, for resp’ts.

This was an action in ejectment. The compaint, in brief, alleged plaintiffs’ ownership “ in fee of the premises No. 185 York street, in this city, consisting of a house and lot, said lot being twenty-five feet in front and rear by, one hundred feet in depth on each side ; ” that defendants owned the adjoining lot on the west; that defendants had erected a fence between said two lots which was not on the true division line, and had also erected a building partly on the land of plaintiffs and partly on their own

p. 456

land ; that defendants refused to remove said fence and building off plaintiffs’ land, whereby plaintiffs have been deprived of the full and free use of their land, to their damage in the sum of $5,000 and they demand judgment for said sum ; “ that defendants be directed to remove said fence and structure,” and that they have such other judgment or decree as may seem just. In-their answer defendants deny the trespass and allege more than twenty years of adverse possession. On the trial plaintiffs sought to show that the division fence and the rear building on defendants’ lot encroached on plaintiffs’ premises about one foot at the rear, and that the fence line ran from that point to the front of the lot, where it struck the true division line. Defendants sought to establish twenty years’ adverse undisputed possession of their lot as fenced.

The jury found a “ verdict in -favor of the plaintiffs that they are entitled to possession of the strip of land described in the complaint, in fee simple, and assessed the damages at six cents.”

On this verdict judgment was entered adjudging “that the plaintiffs (naming them) recover of the defendants (naming them) the possession of the real property described in the complaint, and further, that they recover of the defendants the sum of six cents-damages for the withholding thereof,” etc.

Defendants appeal from this judgment.

We think that there was a mistrial here, and that the judgment cannot stand, owing to the form of the verdict which was rendered. The jury found, as above stated, that 'plaintiffs were “ entitled to the possession of the strip of land described in the complaint; ” if we refer to the complaint to interpret this verdict we find no “ strip of land ” therein described ; the only real properties referred to in the complaint are “ the premises known as No. 185 York street,” being twenty-five by one hundred, which plaintiffs allege ownership of, and “ the adjoining lot on the west side of the above described premises,” alleged to belong to the defendants; nor does the judgment help the verdict, for that merely adjudges that “ plaintiffs recover of the defendants the possession of the real, property described in the complaint.” This judgment literally construed, would entitle plaintiffs to possession of their own lot and to that of the defendants. If execution to enforce this judgment was issued to the sheriff, it would furnish him no clue to-carry it out: he could not, of course, refer to the record to find out that all that it was really intended that he should do was to put plaintiffs in possession of a narrow triangular strip-in the rear of the premises, one foot wide at the base and running to a point on the side of their lot adjoining the lot of defendants. It was never-intended in a judgment of ejectment, that the sheriff should employ surveyors to determine. and define just what premises he should put the prevailing party in possession of, and yet an attempt to enforce this judgment would require the sheriff to locate his starting point, and himself run the lines of plaintiffs’ lot. The verdict should have been corrected in the first instance so as to define exactly what land plaintiffs were entitled to possession of;

p. 457

that was not done, and, of course, the verdict cannot now be amended or corrected.

The judgment must be reversed and a'new trial ordered, with costs to defendants to abide the event.

. Clement, Oh. J., concurs.

Judgment reversed and a new trial ordered, with costs to defendants to abide event.