
    Mary Griffith, Resp’t, v. Charles E. Dickinson et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Appeal—Reversal.
    Where, in an action to determine the location of the dividing line be tween plaintiff's and the adjoining lot, conveyed by him to defendant, the trial justice was misled as to the time plaintiff’s house, which encroached on defendant’s land, was actually built by an error in the stenographer’s minutes of the testimony, it was held that, as the time was important in determining the question of estoppel, a new trial should be ordered to eliminate the mistake.
    Appeal from a judgment in favor of plaintiff.
    George F. Yeoman, for app’lts;
    William B. Hale, for resp’t.
   LEWIS, J.

The parties own adjoining lots, situated upon the westerly side of Lake avenue, in the city of Rochester. Both lots formerly belonged to the plaintiff, and she conveyed to the defendant the lot he now owns and occupies. The negotiations leading to the sale were conducted on the part of the plaintiff by her husband, who died prior to the commencement of this action. A controversy arose between the parties as to the true location of the line between their lots, a strip of land about nine inches in width being claimed by each of the parties. The defendant’s lot was fenced upon both" sides at the time he purchased it of the plaintiff. The defendant testified, upon the trial, that the plaintiff’s husband, while negotiating the sale, represented to him that the lot consisted of the land lying between these fences, and that the lot was fifty feet wide. He further testified that he relied upon these representations, and made the purchase without having the lot surveyed or measured. Soon after the defendant purchased his lot, by an arrangement between him and the plaintiff, the front portion of the fence between their lots was removed, and the ground sodded over.

The precise location of this piece of fence at the time the dex fendant purchased the lot was a matter litigated upon the trial, and the evidence was somewhat conflicting. The defendant’s lot, between his northerly fence and the line now as claimed by the plaintiff, is bnt forty-nine feet and three inches in width, and the plaintiff’s lot is a foot or more wider than her title deed calls for. The preponderance. of evidence, as it impresses us, was rather with the defendant’s contention, but not so much so, perhaps, as to justify a reversal of the judgment for that reason. The plaintiff, a short time before she conveyed to the defendant his premises, had constructed a house upon her portion of the land not conveyed to the defendant, which very slightly encroaches upon the defendant’s lot, as the line is claimed by him. The encroachment consists of_the eaves of her house extending over the line very slightly.

It appears from the opinion of the trial judge, which is printed .in, the case, that he understood, when considering and deciding the case, that it was established by the evidence that the plaintiff Jouilt her house after she had conveyed the lot to the defendant, and that the defendant, while the house was being built, resided in the house upon his lot, and must have been aware of the location of plaintiff’s house, and made no objection or complaint that it was encroaching upon his land. This fact, if true, was very important evidence against the defendant, and justified the trial •court in holding that the defendant was estopped from thereafter claiming that the plaintiff’s house encroached upon his land. It is a conceded fact that plaintiff’s house was built before the defendant purchased his place, and the defendant was entirely ignorant, so far as it appeared upon the trial, of the fact, when he purchased his premises, that any portion of plaintiff’s house extended over the line as now claimed by him. The trial justice was misled as to the time the house was actually built by an error in the stenographer’s minutes of the testimony; the stenographer having erroneously written the word “after” when it should have been “before,” and thus made it appear that the house was constructed after the defendant purchased his lot. This, as stated, was an important piece of evidence, if true. How much it influenced the mind of the trial justice we cannot know. Had the plaintiff brought an action of ejectment to recover possession of the strip of land, the defendant would have been entitled to a new trial under the statute. Justice demands, we think, that the case should be retried, so that this important and significant error in the evidence can be eliminated from the case.

Judgment reversed, and new trial granted; costs to abide the event.

DWIGHT, P. J., and WARD, J., concur. BRADLEY, J., not voting.  