
    Ramapo Manufacturing Company, Respondent, v. Julia Pierson Mapes, Appellant.
    Second Department,
    February 28, 1913.
    Ejectment—disputed boundary line — trial—title by deed or by adverse user—when jury may render general verdict.
    Where the complaint in an action of ejectment involving the location of a disputed boundary line, describes the disputed parcel of land by metes and bounds, and without objection of parties two questions are submitted to the jury, first, whether a former deed of the plaintiff to the defendant’s predecessor in title included the parcel, and, second, whether if it was not included in the deed the defendant had acquired title by adverse possession, and no request was made for the submission of these specific questions, the jury may render a general verdict for the plaintiff and a judgment may be entered thereon.
    Burr, J., dissented,’ with opinion.
    Appeal by the defendant, Julia Pierson Mapes, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Rockland on the 21st day of November, 1912, denying the defendant’s motion to amend a judgment theretofore entered herein to conform to the verdict.
    
      Eli J. Blair, for the appellant.
    
      John F. McFarlane, for the respondent.
    Order affirmed, on the opinion of Mr. Justice Tompkins at Special Term, with ten dollars costs and disbursements.
    
      Jenks, P. J., Hirschberg, Woodward and Rich, JJ., concurred; Burr, J., read for reversal.
   The following is the opinion of the Special Term:

Tompkins, J.:

The complaint described the tract of land in dispute between the parties, and alleged the plaintiff’s ownership of it, and the defendant’s claim to it, and the erection upon it by the defendant of a fence by which it was inclosed with other lands concededly owned by the defendant, so that the issue between the parties was as to the ownership of the particular tract of land that was described in the complaint by metes and bounds, the defendant claiming that the tract in dispute was included with other lands in a deed made by the plaintiff in 1871 to one Henry L. Pierson, the plaintiff contending that the deed from the plaintiff to the said Hemy L. Pierson did not include the land in question. The defendant further claimed that if it was not conveyed to Pierson she and her predecessors in title under the said Pierson deed had acquired the land in question by adverse possession, so that two questions were distinctly submitted to the jury. The first was whether the tract described in the complaint was included in the Henry L. Pierson deed, and the second was whether, if such deed did not include the land in dispute, the defendant and her predecessors had acquired such disputed land by adverse possession, and the jury was clearly charged that if the said Pierson deed did include the land in dispute, their verdict would be for the defendant, and that if said deed did not include the land in dispute, the next question for them to consider and determine would be, had the defendant and her predecessors become entitled to the possession of the land by adverse possession, and that if they had the verdict would be for the defendant, and that if the jury found that the land was not included in the Henry L. Pierson deed, and that the defendant and her predecessors had not acquired it by adverse possession, the verdict must be for the plaintiff. There was no request for the submission to the jury of any specific question, and the verdict rendered was a general one in favor of the plaintiff upon the two questions submitted. The defendant’s counsel made no request in respect to the form of the verdict, and acquiesced in the submission of the case in the form in which it was submitted to the jury, and besides made several requests, one of which was in the following language: “I ask your Honor to charge the jury that if the jury believe from the evidence that the defendant’s predecessors in title and the plaintiff’s predecessors in title for a period of twenty years or more treated the lines up to the place where the defendant has now constructed its fence as the division lines between the abutting properties, they must find a verdict for this defendant.” To which the court replied: “I so charge, if there is any evidence in the case to justify such a finding.”

And again, “I ask your Honor to charge the jury that if the jury find that any of the defendant’s predecessors in title acquired title to the premises in dispute by adverse possession then they must find a verdict for the defendant.”

And again, “ I ask your Honor to charge that the plaintiff cannot recover the land involved in this action on the weakness of the defendant’s title. If the plaintiff has not shown by a preponderance of evidence that it is entitled to recover the land at issue, even though the defendant has not proven its title, the verdict of the jury must be for the defendant.”

It will be seen by reference to the record of the trial and the charge to the jury (which has been submitted by counsel with the other papers upon this motion) that the case was tried and submitted to the jury with the consent of counsel on both sides upon the theory that the only question for the jury to determine was the right of the defendant to the possession of the particular tract of land described in the complaint by virtue of the deed from the plaintiff to Henry L. Pierson or by reason of adverse possession and with the acquiescence of all parties in the direction given by the court to the jury to find and return a general verdict either in favor of the plaintiff or the defendant.

The cases cited in the defendant’s brief on this motion do not seem to apply. In the case of Shanley v. Murty (134 App. Div. 845) there was no general verdict rendered by the jury, and the complaint did not describe the land in dispute, and the Appellate Division in its opinion states that the court ci inadvertently omitted to take or order a general verdict.”

In the case of De Clemente v. Winstanley (8 Misc. Rep. 45) the form of the verdict of the jury was that the plaintiffs are “ entitled to the possession of the strip of land described in the complaint.” As a matter of fact, no “strip of land” was described in the complaint. The only property referred to in the complaint was premises known as No. 185 York street, being 25 by 100, which the plaintiffs alleged they were the owners of and which was conceded to belong to them and “ the adjoining lot on the west side of the above-described premises,” which the complaint alleged belonged to the defendants, and the General Term of the City Court of Brooklyn in its opinion said: “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.”

In other words, the complaint in that action described the plaintiffs’ land and the defendants’ land adjacent thereto and sought to have the line between the two properties established where the plaintiffs claimed it should be, and the jury found that the plaintiffs were “ entitled to the possession of the strip of land described in the complaint,” not locating the disputed boundary line, and the court held that the verdict was not in proper form because it in effect declared that the plaintiffs were entitled to the possession of their own land, as well as the land that concededly belonged to the defendants, both of which properties were described in the complaint.

In the case at bar, the complaint distinctly and specifically described the tract of land in dispute, and the issues between the parties were first, whether that tract of land belonged to the defendant by reason of its having been included with other lands in the Henry L. Pierson deed; and second, if it was not included, whether the defendant had become the owner of it by adverse possession. If upon either of these propositions the jury found in the defendant’s favor, the jury were told that they must render a general verdict for the defendant, and if upon both of these questions they found in favor of the plaintiff, they were directed to render a verdict accordingly.

I think under all the circumstances that the verdict was proper, and that the motion should be denied.

Burr, J. (dissenting):

I dissent. “A verdict * * * in favor of the plaintiff, in an action specified in this article, must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate is less than a fee.” (Code Civ. Proc. § 1519.) The “ article ” referred to in said section is article 1 of title 1 of chapter 14 of said Code, entitled “ Action to recover real property.” This was an action of such a character, and upon the trial thereof the jury rendered its verdict in the following form: “We find for the. plaintiff.” Thereupon the clerk entered judgment to the effect that “ the plaintiff Ramapo Manufacturing Company is the owner and was at the time of the commencement of this action, and now is entitled to the immediate possession of the premises described in the complaint in this action, and was at the time of the commencement of this action and now is entitled to have the iron fence and stone gateposts erected by the defendant Julia Pierson Mapes, upon said described lands and premises, which is an encroachment thereon and excludes the plaintiff from its lawful possession thereof, immediately removed therefrom. It is further adjudged and decreed that the plaintiff Ramapo Manufacturing Company be and it is hereby awarded immediate possession of the lands and premises described in the complaint herein, of which it is the owner in fee and upon which said fence and gateposts were wrongfully and unlawfully erected by the defendant herein, and which fence and gateposts the plaintiff herein is hereby authorized and entitled to remove as an encroachment thereon.” Then follows a description of certain premises, the easterly boundary line of which is stated to be the division fine between lands of defendant and plaintiff. The location of said line may be determined, it is true, by the fact that it is stated to begin at an elm stump on the northerly bank of the Ramapo river, and to run north fifty-nine degrees forty minutes east, 594 feet to a stake. The judgment also provides that plaintiff shall recover its costs of defendant. Shortly after the entry of said judgment, defendant moved to strike out all of the provisions thereof except those relating to costs and for “ such other and further relief as to the Court may seem just and proper.” From an order denying such motion, defendant appeals.

The question in this case is not whether the parties requested a special verdict, or whether the verdict as rendered is a general or a special one. If we assume' that in form it is a general verdict, it is not such a general verdict as authorizes the entry of any judgment in an action of ejectment. It is fatally defective for failure to specify the estate of the plaintiff in the land in controversy, or whether the plaintiff is entitled to the whole or only a part thereof. (Meehan v. Dobson, 131 N. Y. Supp. 37; Shanley v. Murty, 134 App. Div. 845.) It seems to me that upon such a verdict there was no more power to enter a judgment than there would be if in an action for unliquidated damages, where by the provisions of the Code (Oode Oiv. Proc. § 1183) the jury were required to assess such damages, a jury had said, we find a verdict for the plaintiff, and had omitted to assess the same. In such case a judgment could not be entered, even though there was no evidence to contradict that of plaintiff as to the extent thereof. (Steele v. Hammond, 136 App. Div. 667.) The defendant lost no rights in the matter by failing to object to the form of the verdict when rendered. The parties sustained hostile relations to each other, and no duty devolved upon her to see to it that plaintiff’s interests were protected by a proper verdict. In my opinion not even a judgment for costs could be entered upon such a verdict. While the specific relief asked for is to strike out only a portion of the judgment, under the prayer for other and further relief the whole of said judgment might be stricken out if the verdict does not authorize the same. It seems to me that such is the proper decision to be made.  