Hyperlawhypertext legal database Danziger v. Boyd 55 N.Y. Super. Ct. 537

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Danziger v. Boyd

55 N.Y. Super. Ct. 537 23 Jones & S. 537 Court N.Y. Super. Ct. Decision date 1887-12-12 English

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p. 537
MAX DANZIGER, Respondent v. JOHN BOYD, et al., Appellant.

Headnote

Deed—Construction of description in—Monuments, not necessarily controlling courses, distances or quantities—53 Super. Ct. 398, followed as to above.—Ejectment.—Champerty Act, 2 B. S.. ch. 1, tit. 2, art. 4, § 147, what necessary to bring a case under.
Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
Decided December 12, 1887.
Appeal from judgment entered upon the verdict of the jury.
Action in ejectment.
This case has been twice before the court on appeal. (See 53 Super. Ct. 398, and 54 Ib. 365.) On the first appeal it was held that the plaintiff was the owner of the strip of land in dispute.

“This decision should be followed, unless it clearly appears that, for some cause not presented by counsel or considered by the cqurt on that appeal, the former decision was erro

p. 538
neons. The learned counsel for the appellants now claims that the deed to the plaintiff, under which he claims title to the premises in dispute, was void for the reason that at the time of the delivery of the deed such land was in actual possession of the defendant claiming under title adverse to the plaintiff. § 147, article IV., title I., chap. 1, part II. Revised Statutes. The case of Crary v. Goodman, 22 N. Y. 170 , appears to be decisive against the appellant on this point. The court there says, ‘Nothing can satisfy the language of the latter act (the statute in question) but the existence of some specific title under which the party claims. The title may be good or bad, but there must be, at least, a color of title opposed to the title of the grantor in the deed; and there is no such color of title when the possession was taken purely by mistake as to the boundaries of the deed.’ On an examination of the other objections to the plaintiff’s title it clearly appears that they are within the decision of the case on the former appeal, and we think that decision is decisive. The trial judge submitted the question of the amount of the mesne profits to the jury, as directed by the decision of the general term on the last appeal, and applying that decision, it does not appear that the court below erred.”

Townsend & Mahan, for appellants.

Kaufmann & Sanders, attorneys, and L. Sanders, of counsel, for respondent.

Judgment affirmed with costs.

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