
    John McAuliff, Respondent, v. Mary F. Hughes, née Frances Helen Welcome, and Richard Hughes, Her Husband, and as Committee, etc., of Said Mary F. Hughes, Defendants, Impleaded with Elizabeth Elliott, Appellant.
    Third Department,
    November 10, 1909.
    Beal property — champerty and maintenance.
    Action for.partition. Evidence examined, and field, that a deed under which the plaintiff claimed, having been taken at a time when the defendant was in possession and' excluding all persons from the premises, was chnmpertous and void.
    Cochrane, J., dissented.
    Appeal by the defendant, Elizabeth Elliott, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 14tli day of January, 1909, upon the decision of the court rendered after a trial at the Clinton Special Term, except that part thereof which decrees said defendant to be the owner of two-thirds of the premises in question.
    
      Patrick J. Tierney, for the appellant.
    
      Adelbert W. Boynton, for the respondent.
   Kellogg, J.:

The report of this case upon a former appeal is at 128 Appellate Division, 355, where a judgment in favor of plaintiff was reversed upon the ground that his alleged conveyance was chainpertons and void. The evidence now is substantially that on the former trial. It more fully appears that the premises directed by the judgment to be partitioned contain about an acre of land in a little village, upon which there is a blacksmith and wheelwright shop and defendant’s inclosed garden. A small part of the. premises was not inclosed by a fence until September or October, 1906, and then the defendant fenced the remainder of the premises and refused to allow the plaintiff longer to get water from his spring upon them. Apparently, up to the time the fence was built, the unfenced part of the premises had been run over more or less by cattle from the street, belónging to the plaintiff and others. The plaintiff swears he stored wagons on the premises and pastured it. It is evident he had one or two old wagons at the wheelwright shop, where many parts of old wagons belonging to others had been left, and that his cattle, with other cattle at large upon the street, had at times run upon the premises from the street."

The trial took place in November, 1907; the entire premises were fenced by the defendant in September or October, 1906, and the plaintiff and all others excluded therefrom by the defendant. There is an absence of any circumstances tending to show any act of possession by the plaintiff, especially since the fall of 1906. Thereafter, with knowledge of the defendant’s claim, he purchased the alleged outstanding titles and brings this action. We must, therefore, conclude, as we did upon the former record, that the plaintiff’s alleged title is within the letter and spirit of the Champerty Act, and void. (See Real Prop. Law [Laws of 1896, chap. 547], § 225.) The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Cochrane, J., dissenting.

Interlocutory judgment" reversed upon law and facts and new trial granted, with costs to appellant to abide event.  