
    Francis P. De Clemente et al., Respondents, v. Eliza H. Winstanley et al., Appellants.
    (City Court of Brooklyn—General Term,
    April, 1894.)
    The verdict in an action of ejectment in favor of the plaintiff should define exactly what land the plaintiff is entitled to the possession of.
    The complaint in an action of ejectment alleged that plaintiff was the owner in fee of certain premises described by street and number, “ being twenty-five feet in front and rear by one hundred feet in depth on each side; ” that defendant owned the adjoining lot on the west; that defendant had erected a fence and a building which were not on the true division line, but were partly on plaintiff’s land; that defendant refused to remove the same, and demanded judgment for damages and that defendant be directed to remove the fence and building. The evidence showed that the fence encroached one foot in the rear, and that the fence line struck the true line at the front of the premises. The verdict returned was in favor of plaintiff for the possession “ of the strip of land described in the complaint,” and for six cents damages. The judgment adjudged that plaintiff recover of defendant the possession of “the real property described in the complaint,” and such damages. Held, that there was a mistrial of the action, owing to the failure of the verdict to plainlyQdefine the land to which the plaintiff was entitled, the complaint not describing any strip of land.
    Appeal from judgment in favor of the plaintiffs.
    
      F. R. Hartman, for respondents.
    
      G. G. & F. Reynolds, for appellants.
   Osborne, J.

This was an action in ejectment. The complaint, in brief, alleged plaintiffs’ ownership in fee of the premises No. Í85 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 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; 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, Ch. J., concurs.

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