Roby v. Yates — 77 N.Y. Sup. Ct. 35

Majority

p. 35

Sidney B. Roby, Plaintiff, v. Arthur G. Yates, Defendant.

Headnote

Blight of a railroad company in land, forfeited by leasing to am individual — right of the owner in fee to recocer possession from the lessee.

In an action brought by the owner in fee to recover the possession of real estate held by the defendant as tenant under a lease from a railroad company, it appeared that all the rights the defendant claimed in the property were acquired by the lease from the railroad company, that all the interest the railroad company ever had in the premises was the right to their use for railroad purposes, and that in an action brought by the same plaintiff against the railroad company the General Term had held that the company had forieited and surrendered all its rights and interest in the property to the plaintiff by giving to the present defendant the lease under which he claimed to hold the property. The plaintiff obtained a verdict by direction of the trial court, and the defendant moved for a new trial.

Held, that as the material evidence in both cases was the same, and the same question was presented for decision as in the case against the railroad company, judgment should be ordered for the plaintiff on the verdict.

On the trial of the present action the plaintiff was permittedTo give in evidence the judgment roll in the action against the railroad company.

Held, that even if this was not material evidence, the defendant was not prejudiced thereby, as the plaintiff had fully made out his case without it.

Motion by the defendant, Arthur G. Yates, for a new trial, upon exceptions ordered to be heard at the General Term in the first instance, on the direction of a verdict for the plaintiff by the court at the Monroe Circuit, on the 27th day of February, 1893.

William F. Cogswell, for the plaintiff.

Albert H. Fa/rris, for the defendant.

This action was brought to recover from the defendant the possession of real estate in the city of Rochester, which he held as tenant under a lease from the New York Central and Hudson^ River Railroad Company.

The property is the same as that in question in an action brought by 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 N. Y. St. Repr. 201 , and in 65 Hun, 532 .

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.

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 he 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., concurred.

Defendant’s motion' for a new trial denied with costs, and judgment ordered for the plaintiff on the verdict.