
    Anna Kraus, Appellant, v. Louise Birnbaum, Respondent.
    Third Department,
    May 5, 1909.
    Ejectment — facts raising question of title by adverse possession — ouster of plaintiff— admission in answer.
    Although the plaintiff in ejectment after alleging that the defendant tore down fences and unlawfully took possession of a portion of the land further alleges that she herself is in possession, the court should not dismiss the complaint upon the theory that the plaintiff has failed to prove her own title or an ouster by the defendant, if she gives evidence that she and her predecessors had fenced in the disputed strip of land for over twenty years so as to constitute adverse possession, that the defendant tore down the fences and prevented the . plaintiff from rebuilding the same and when the answer itself alleges title in the defendant.
    Any defect in the plaintiff’s proof as to ouster is supplied by the defendant’s allegation of title.
    Chester, J., dissented, with memorandum.
    
      Appeal by the plaintiff, Anna Kraus, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the ,26tli day of! October, 1908, upon the dismissal of the complaint by direction of the court at the close of- the plaintiff’s case on a trial ,at the Albany Trial Term.,
    
      Albert B. Wolf [John W. Roddy of counsel], for the appellant.
    
      Long & Maxwell [J. K. Long of counsel], for the respondent.
   Kellogg, J.:

■ By -her -complaint the plaintiff seeks to recover the possession of lot Mo. 76 according to the Warren and Turner map, in a, block of four lots in the city of Watervliet, bounded by Twenty-fourth street, William .street, a twenty-foot alley and a ten-foot .alley, alleging that' the defendant tore down the fences and unlawfully took possession thereof. The answer denies any unlawful entry upon lot 76 and Then alleges; “ That as she understands the real object of the action it is ¡an effort iby plaintiff to determine the ¡title and ownership and right ¡of possession to a strip of land on the.south side of Utica or 24th -Street in the city of Watervliet, six feet wide and ninety-four feet deep, hounded by .an alley ten feet wide, and- a part of lot number seventy-seven (77), adjoining said lot number seventy-six (7-6), described in said complaint. That defendant ¡and her grantors have claimed, and defendant claims and claimed, during all the time mentioned in said complaint, to be, and defendant alleges on her information and belief that she is the owner- in fee and entitled to hold and maintain her possession of said strip of land,” and that said ¡strip is not a part of lot Mo. 76.

The plaintiff’s grantor showed title to lots 75 and 76 according to the Warren and Turner map, lot 75 being at the-corner of William and Twenty-fourth street and .each also being twenty-five feet wide on the latter street,, and he shortly before the action conveyed lot 76 to -the plaintiff. Plaintiff did not produce the Warren ¡and Turner map and, therefore, it is not possible to locate definitely the lands described in her deed. Evidently the four lots in the block were each designed to have twenty-five feet frontage on Twenty-fourth street, but there is a.surplus of about six or eight feet, caused probably by an error in the map or by lot 78 as actually occupied encroaching upon the twenty-foot alley, or by lot 75 as actually occupied encroaching upon William street. Plaintiff’s contention is that in fact lot 75 contains thirty-three feet and the other lots twenty-five each of frontage. The evidence does not show that the disputed strip, so called, is a part of lot 76 covered by the plaintiff’s conveyance, and by failing to produce the map and locating her premises the plaintiff has not shown her actual title to the strip. Nevertheless she produced evidence tending with more or less force to show that the disputed strip had for many years been fenced in and occupied as a part of lot 76, and I think upon the evidence she was entitled to have the court determine, after hearing all the evidence, whether there had been a practical location of the lot lines and also whether she had acquired title to all or any of the disputed strip by adverse possession. • If the occupancy by her predecessors in title had been such that it carried with it the right of possession and ownership of the disputed strip as a part of lot 76, then the form of the complaint and the non:production of the map would not necessarily be fatal to the plaintiff. She swore that the defendant tore down the fence which apparently separated lots 76 and 77, and which inclosed the disputed strip as a part of her lot 76, and threw the boards upon her lot and prevented her from rebuilding the fence. It is true plaintiff stated that .at the time she brought the action she was in the possession of all the disputed strip; but that was merely a conclusion, as the evidence does not show any act done by her upon the disputed strip after the defendant entered and tore down the fence up to the time of the bringing of the action.

The court nonsuited the plaintiff upon the ground that she had failed to prove that she had been ousted from the possession of said lot or that the defendant was in possession of any part of it. I think the allegation quoted above from the answer supplies the proof, and was overlooked by the trial court in making its decision. If the. complaint was defective in describing the disputed strip, the answer supplied the defect. It denied the plaintiff’s title to it, asserted defendant’s own title and her right to possession, and that as owner she was entitled to hold and maintain her possession of said strip of land. I think for the purposes of the case that is an admission, that the defendant at the time of action brought was in possession of the disputed strip, holding in hostility to the plaintiff. It was, therefore, error to grant the nonsuit., The judgment should be reversed upon the law and the facts and a new trial granted, with costs to, the appellant to abide the event.

All concurred; Cochrane, J., in. result, except Chester, J., dissenting in memorandum.

Chester, J. (dissenting):

The complaint in this action alleges that the plaintiff is the owner and. entitled to the possession of lot Ho. 76 described on the Warren and Turner' map iii Watervliet, which lot is described as being twenty-five feet front on Twenty-fo.urth street and ninety-four feet deep. It is also alleged 'that prior to the commencement of the action the defendant wrongfully and unlawfully entered upon said parcel of land,, claiming title thereto, and tore down the fence erected thereon by the plaintiff, and that the defendant wrongfully and unlawfully withholds possession thereof from the plaintiff, and that the plaintiff and her grantors have been in possession of said land under a claim of title and ownership for more than twénty years. She; asks for judgment that she be adjudged to be the owner of the land and entitled to have immediate possession thereof. It was clearly shown that the fence which was torn down was not on any part of lot Ho.- 76, and it was not shown that the defendant was in occupation and possession of any part of such lot at the time of the commencement of the action. The fact clearly appears; that the disputed strip of land upon which the fence in question was erected was entirely outside the boundaries of lot Ho. -76 mentioned in the complaint. - That being so, the fact that the defendant in her answer brought in an unnecessary allegation with respect to her Understanding of the real object of the action, which was to determine the title and ownership of such strip of land, and claimed to own such strip and to maintain a possession thereof, is not Sufficient, in my judgment, to save the dismissal of the action.'

The trouble with the plaintiff’s case, is that she has not alleged any cause of action with respect to the disputed strip, and she tried to prove á cause of action entirely outside; of that stated in her coin-plaint. The defendant never consented to the trial of any issue outside of that tendered by the complaint, and stood upon her rights when she made her motion for a dismissal. The plaintiff failed entirely to prove the cause of action which she alleged, and for that reason the complaint was properly dismissed. I think the judgment should be affirmed.

Judgment reversed on law and facts, and new trial granted, with, costs to appellant to abide event.  