
    Helen A. Silliman, App’lt, v. John W. Paine et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    Advebse possession.
    Where, in an action of ejectment, the proof fails to show that the premises claimed are embraced within the description in plaintifi’s deed, but there was evidence from which the jury might have found that the premises were held by plaintiff and her grantors adversely for more than fifty years before the erection of a structure on defendant’s lot in 1864, provided they found that the same was so enclosed and occupied as to create an adverse possession, the question should be submitted to the jury and it is-error for the court to dismiss plaintiff’s complaint.
    Appeal from a judgment in favor of defendants entered upon an order of the trial judge upon the second trial of an action of ejectment for a strip of land four and one-half inches wide and twenty-eight feet long. The parties owned adjoining lots situate on the westerly side of Congress street in. the city of Troy,, bounded in front by that street and in the rear by an alley. In 1864, on the rear of each lot stood a barn, one by the side of theotlier, with a space of about one foot between them. Yail, then the owner and now the grantor of the lot of the defendants, tore down the barn on his lot and erected a new one, leaving only five and one-half inches between his new bam and plaintiff’s old barn. The action was to recover the portion of the space covered by the new barn.
    
      Lansing & Cantwell (James Lansing, of counsel), for app’lt;. Irving Hayner (John H. Peck, of counsel), for resp’ts.
   Mayham, P. J.

Appeal from a judgment entered upon an order of the trial judge dismissing plaintiff’s complaint at the-trial.

This action has been once before tried before a referee who reported in favor of the defendants, and on appeal from the-judgment entered upon that report the judgment was affirmed by this court in a well considered opinion by Justice Landon, reported in 16 St. Rep., 324.

That decision has not been reversed, and unless the essential facts have been changed on this trial so as to lead to a different result must, we think, be regarded as stare decisis in this case.

It is true, as the plaintiff saw fit to avail herself of the provisions of the statute providing for a new trial in actions of ejectment on payment of costs, that she is entitled to a new trial de novo, and to have her case disposed of substantially as if no trial had been previously had; but if on such new trial the facts have not been substantially changed this court should not disregard the light reflected upon the case by the examinations and adjudications of the court on the former trial.

We have examined the evidence on this trial, and do not sec that it is essentially changed as to the location of the land actually embraced in the plaintiffs deed.

Upon that question there seems now, as on the former trial, a want of evidence fixing any definite starting point from which a survey can be made with sufficient certainty to locate this dividing line with accuracy within the narrow margin of six and one-half inches. Assuming, as we must, that the former decision on that question was correct, we see no change of facts which would change the legal conclusion reached on the former trial.

But it is insisted by the learned counsel for the appellant that the proof on the second trial clearly establishes in the plaintiff a twenty years adverse possession of this strip of land, and that, therefore, the plaintiff is entitled to recover even though the proof fails to show that it is embraced within the description in the plaintiff’s deed, or covered by the allegations of his complaint.

The plaintiff makes no claim in her complaint for land not embraced in lot No. 123, and seeks only to recover a part of that lot bounded on the north line of that lot.

That claim is, therefore, inconsistent with a claim to recover lands lying northerly of that line.

But the complaint does specifically describe the piece of land sought to be recovered by boundaries from which, if the plaintiff should recover, the locus in qiio could be taken possession of by the sheriff, and the plaintiff put in possession. It is a strip six and one half inches wide from front to rear, parallel with the north line of the lot, and extending twenty-eight feet from Second street to the alley.

If, therefore, the proof in this case establishes an adverse possession in the plaintiff in this strip, within the provisions of §§ 370, 371 and 372 of the Code, we think under this complaint she might recover.

Upon this branch of the case there was evidence from which the jury might have found that these premises were held by plaintiff and her grantors adversely for more than fifty years before the new barn was constructed on defendant's lot in 1864, provided they found that the same was so inclosed and occupied as to create an adverse possession, within the provisions of §§ 370,. 371 and 372 of the Code of Civil Procedure.

I think that within the case of Barnes v. 116 N. Y., 34; 26 St. Rep., 654, the case upon this branch should have been sub- . mi tied to the jury.

In that case it was held that an action of ejectment can be maintained upon an adverse possession, even against the true owner, .and several authorities are referred to to sustain that position.

As the plaintiff did not succeed in affirmatively proving that her deed covered this land, and her claim of title was not, therefore, founded upon a written instrument, it was incumbent on her to show an actual, continued occupation under a claim of title for more than twenty years in herself or her grantor, evidenced by a continued substantial inclosure. Code Civil Procedure, §§ 370, 371 and 372, supra.

Upon this question there was evidence which we think raised a question of fact which should have been submitted to the jury.

Judgment reversed and a new trial ordered, costs to abide the • event.

Putnam and Hebbick, JJ., concur.  