
    (82 Hun, 287.)
    COLEMAN v. PICKETT.
    (Supreme Court, General Term, Third Department.
    December 4, 1894.)
    1. Adverse Possession—Permissive Entry.
    Possession of one who enters on land with the consent of the owner, under an agreement with him, is not adverse to the owner, and cannot ripen into a valid title by lapse of time.
    2. Jury—Right to Trial by—Waiver.
    Where defendant moves for a nonsuit, and plaintiff asks the court to direct a verdict for him,, they both waive the right to submit the case to the jury.
    Appeal from special term.
    Action by Robert S. Coleman against Charles H. Pickett to reform a deed. There was judgment in favor of plaintiff, and defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    D. J. Sullivan, for appellant.
    L. H. Northup (A. D. Arnold, of counsel), for respondent.
   MAYHAM, P. J.

The action was to reform a deed, and for the recovery of the possession of lands claimed to have been omitted from the deed by mistake. The complaint alleged all the essential facts to entitle the plaintiff to the relief demanded. The answer admitted many of the allegations of the complaint, and set up, as an affirmative defense, adverse possession of the land in dispute. From a careful examination of the uncontradicted evidence, we think the allegations of the complaint are established by the proof. As to the affirmative defense of adverse possession, the undisputed evidence shows that the defendant and his grantor entered into possession with the permission and consent of the owner, under an agreement that he would not erect any building on the land. His holding was therefore clearly in subordination to the legal title of the plaintiff, and could not, therefore, ripen into a valid adverse possession by lapse of time.

We have examined the objections and exceptions taken by the defendant to the rulings of the trial court on the receipt and exclusion of evidence offered on the trial, and find no error for which this judgment should be reversed. We have also examined the exceptions taken to findings of fact and law by the learned court on the final disposition of the action, and think them not well taken. The facts were supported by the evidence, and the conclusion of law followed as the legal sequence of the facts found.

The parties on both sides, having taken the position that the case must be disposed of by the court as a question of law,—the defendant by motion for nonsuit, and the plaintiff by asking the court to direct a verdict for him,—waived their right to submit the case to the jury, except upon specific disputed questions of fact; and the refusal of the court to submit the case to the jury, generally, after such motions and requests on the part of the defendant, was not error of which the defendant can complain, on appeal. In Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, it was held that when, after the close of the evidence, each party asks that a verdict be directed in his favor, and, after the decision thereon, the unsuccessful party asks that the case be sent to the jury, without stating any question of fact he desires submitted, a denial of the motion is not error.

We see no error in this case for which the judgment can be reversed. Judgment affirmed, with costs.

PUTNAM, J., concurs in result. HERRICK, J., dissents.  