Knapp v. Altmayer — 33 N.Y. Super. Ct. 161

Majority

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SAMUEL F. KNAPP and others, Plaintiffs and Appellants, v. AARON ALTMAYER and others, Defendants and Respondents.

Headnote

Slight evidence is sufficient to establish the existence of an old map; and where a witness (a surveyor) had testified that he had made a survey of a lot, on the basis of an old map which gave the lines, his testimony that he believed he had seen the map, and that a copy or what purported to be a copy of the map, filed in the register’s office, had for many years been the standard for surveys by city surveyors,—

Held, that this testimony was sufficient to be submitted to the jury.

Before Monell, McCunn and Jones, JJ.

Decided March 4, 1871.

Appeal from a judgment.

The complaint alleged that the plaintiffs were lawfully seized in fee, and were the owners, and were entitled to the possession of certain premises, situate, lying and being on the easterly side of Crosby-street, in the Fourteenth Ward of the city of New York, bounded and described as follows, viz: Commencing at a point on the easterly side of Crosby-street, on the

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division line between the lots distinguished on a map made of the lands of Nicholas Bayard, by the numbers 1,154 and 1,155, and running thence easterly on said division line fifty-seven feet and eleven inches to the easterly side or end of a frame house; thence northerly along said easterly line or end, three inches more or less to the northeasterly corner thereof; thence westerly along the northerly side of said house, twenty-seven feet six inches more or less to the easterly side or end of another frame house ; thence northerly along the easterly end of said last mentioned house, one foot two inches moré or less to the northeasterly corner thereof; thence westerly, along the northerly side of said last mentioned house, thirty-five feet five inches more or less to the said easterly side of Crosby-street, and thence southerly along said easterly side of Crosby-street, eight inches more or less to the said division line between said lots numbers 1,154 and 1,155, at the pointer place of beginning. Which premises the defendants were in possession of and wrongfully withheld from the plaintiffs.

The defendants’ answer was a general denial.

The action was tried before Mr. Justice Spekcer and a jury.

The plaintiffs itntroduced a deed from Margaret S. Rutgers to Jeremiah L. Knapp, the ancestor of the plaintiffs, dated April 14, 1845, conveying certain premises by the following description, viz: “ All that certain lot of ground situated in the Fourteenth (late Eighth) Ward of the city of New York, distinguished ■on a map made of the lands of Nicholas Bayard, Esq.., by lot No. 1,155, fronting on Crosby street, and in length on each side one hundred feet, be the same more or less, and in breadth front and rear twenty-five feet, be the same more or less.”

They then proved ownership in the plaintiffs derived under the deed, and introduced a survey made in 1859,

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by Edwin Smith, city surveyor, of what was claimed to be the lot conveyed by the Rutgers deed, and which showed that the northerly line of that lot in possession of the defendants, encroached upon the plaintiffs’ lot, from three inches in front, to fourteen inches in the rear, for a distance of about fifty-eight feet from the front.

The plaintiffs also introduced another survey made in 1869 by James E. Serrell, also a city surveyor, of the same lot, with substantially the same result as the survey of Smith.

Serrell, who was examined as a witness, testified that he knew the map of the Bayard farm, and made Ms survey on the basis of that map. That°he found such map on file in the register’s office, and recorded as map Ho. 386. That the map there recorded was not the original but a copy, or what purported to be a copy of the original. The witness further testified that there were two Bayard maps, so called, one of the west and one of the east farm ; that map 386 was a copy of the east farm map. He said he thought he had seen the original map of the east farm, and had compared the copy map in the register’s office with the extracts he had made from such original map, and that they corresponded. He said he did not know what had become of the original map, and believed it was lost.

He further testified that he was confident that the lot Ho. 1,155 was lot Ho. 1,155 on the original Bayard map, and said he saw the original map as far back as 1845.

There was undisputed evidence that the premises in dispute had been in possession of the defendants, or of those through whom they claimed, for more than twenty years. This was established by the evidence of Samuel Knapp, one of the plaintiffs, who testified, that the buildings on the defendants’ lot, which it was claimed encroached upon the plaintiffs’ property,, were' there in 1845, when the plaintiffs’ ancestor bought, and are there now.

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At the close of the plaintiffs’ evidence the defendants moved to dismiss the complaint, and the court granted the motion.

The plaintiffs excepted, and appealed from the judgment.

Mr. J. E. Burrill, for appellants.

Mr. Geo. C. Barrett, for respondents.

It is understood that the complaint in this case was dismissed, on the ground of insufficiency of proof of the plaintiff’s title to the disputed lands, and not on the ground that the, evidence had established an adverse possession in the defendants, and the,former was the only point argued on the appeal.

The only evidence which went to establish title, was that of the witness Serrell, who testified to a survey made by himself, upon the basis of the Bayard ’East farm map. That survey shows an encroachment by the defendants upon the plaintiff’s lot.

In both deeds, as well the defendant’s as the plaintiff’s, the lots are described by certain numbers upon the map of the lands of Nicholas Bayard, the plaintiff’s lot being No. 1,156, and the defendant’s No. 1,155, upon such map. And the lots then designated, are supposed to be of the diminsions of twenty-five feet wide and one hundred feet deep.

The accuracy of the survey made by Mr. Serrell depends upon whether the map now on file in the register’s office, and designated as Map No. 386, is a correct j copy of the original East farm of the Bayard estate.! If it is, then the evidence and survey of Serrell made \ out a prima facie case for the plaintiffs. '(

Mr. Serrell testified that he had surveyed the two lots upon the basis of the Map No. 386, and that the

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true line between the lots of the plaintiffs and the defendants was shown upon the diagram of his survey, by the dark line drawn between the lots. And the present possession of the defendants also appearing upon such survey and diagram, and designated by the faint lines, it appears that such possession encroaches upon the plaintiff’s lot to the extent claimed in the complaint, unless it can be accounted for by what Mr. Serrell calls “surplus” land.

The real difficulty, however, was in establishing that Map No. 386 was a copy of the Bayard East farm map. The evidence on that subject was very slight. Mr. Serrell, who was the only witness examined in regard to it, did not make it very clear. At first he said he had never seen the original map. Subsequently, upon being recalled, he said he thought he had seen the true East farm map, and that upon making a survey some twenty years since, he made extracts from it, which he had compared with the copy now on file, and that they corresponded. Afterwards he said, he would swear that he had seen an original map of the Bayard farm, as far back as the year 1845.

He further testified that the copy Map No. 386, in the register’s office, had for many years been the standard for surveys by city surveyors.

Upon all the testimony, if the jury had found that the lines indicated upon Mr. Serrell’s diagram of his survey, were the correct line between the plaintiff’s and defendant’s lots, I do not think the court would have set it aside, as being unsupported by, or against the clear weight of the evidence.

We think, therefore, that there was enough to have carried the case to the jury, and to have put the defendants upon their defense..

The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.