
    Ann Maria Palmer v. Gustav H. Saft.
    
      (New York Superior Court; General Term,
    
    
      Filed January 7, 1889.)
    
    Adverse possession—Code Civ. Pro., §§ 365, 372, sued. 1.
    Where the defense of adverse possession is set up, and the evidence shows that the plaintiff was not seized or possessed of the premises in dispute within twenty years preceding the commencement of the action, hut that they were claimed hy the defendant and were protected hy a substantial enclosure within section 372 of the Code, it constitutes adverse possession, and the question should have been submitted to the jury.
    Exceptions taken by the defendant and ordered to be Reard in the first instance at the general term.
    
      Lemuel Skidmore, for def’t; D. D. McCoon, for pl’ff.
   Ingraham, J.

This is an action of ejectment to recover the possession of a strip of land about twenty feet and six inches long by two and one-half inches wide on the rear of the lot claimed by plaintiff, Ho. 68 West Thirty-eighth street, which the defendant has occupied in the erection of the east wall of the building on lot Ho. 70.

One of the defenses relied on for the defendant was adverse possession since 1860. To sustain that defense the defendant produced on the trial a witness, Marie A. Felter, who testified that she became the owner of the premises owned by the defendant, Ho. 70 West Thirty-eighth street, on the 30th of Hovember, 1860, and that she went into actual possession of the premises and lived there some time in December, 1860; that on the east side of the lot, between it and Ho. 68 (plaintiff’s property), was a wood fence, a board fence, which ran from the building Ho. 68 to the stable; that her yard was entirely enclosed by fences and walls, and it remained so all the time she occupied the premises; that none of those fences and walls were changed in their location at any time during the period that she occupied Ho. 70; that she lived there until Hovember, 1882, when she sold the premises .to Mr. Saft, the defendant. December 5th, 1882, was the time when she parted with the possession of the premises; that during the time she was in possession she claimed the whole of the premises as enclosed, and that no one ever made any claim to the contrary to her knowledge; that when she gave to the defendant his deed she put him in possession of the premises as she held them.

The defendant was also sworn as a witness and testified that he purchased the premises Ho. 70 West Thirty-eighth street on December 5, 1882, and that he went into possession of the premises about two weeks afterwards; that between lot 70 and lot 68 was a wooden fence, and that it abutted against the rear of lot Ho. 68, and stood back a few inches and ran to the side of the stable; that they had the new building all finished and then he had a fence put up in the area way, and then this fence was pulled down; that the fence on the east side towards Ho. 68 was not pulled down until the latter part of March, 1883, and until that time it remained as it had been, and that the defendant claimed all inside the fence; that the fence was never removed until the witness removed it when the building was finished, and that the wall of this building was built up inside of this line fence.

Anton Harmony was called on as a witness for the defendant, and testified that he took down the old fence on the east side of this wall, Ho. 70 West Thirty-eighth street, and that the defendant’s new house was then up all the way; and James P. Niblo testified for the defendant that he was the builder who built the new house on No. 70* that he built the wall of the defendant’s new house inside of the fence; and it further appeared that the brick work ■on the wall of the new house was commenced November 13, 1883, and that the wall was finished on March 27. There was no change made in the east fence of No. 70 from the time the defendant took possession until the new building was put up and the fence finally taken down.

At the end of the testimony the defendant asked the ■court to submit to the jury the question whether defendant had not acquired title by adverse possession to the strip of land in question. The court refused and defendant excepted.

The court then directed a verdict for the plaintiff and ordered exceptions to be heard in the first instance at the general term.

By section 365 of the Code, it is provided that an action to recover real property, or the possession thereof, cannot be maintained by a party other than the people, unless the plaintiff, or his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the commencement of the action; and by section 372, it is provided that, for the purpose of constituting adverse possession of the person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases: First, where it has been protected by a substantial enclosure, and Second, where it has been usually cultivated or improved.

We think the evidence in this case was at least sufficient to require the question of adverse possession to be submitted to the jury. The' evidence would have justified the jury in finding that the premises in dispute was within the limits of the fence, as it actually existed from December, 1860, to the time it was removed in March, 1883, and that during all that time the defendant and his grantor claimed the title to the whole of the premises included within that fence.

The property in dispute was thus enclosed by a substantial enclosure within subdivision 1 of section 372 of the Code, and constituted an adverse possession by the defendant and his grantors of the premises in question, and the plaintiff, not being seized or possessed of the premises within twenty years before the commencement of the action, could not recover.

In the case of Paige v. Warington (103 N. Y., 636; 2 N. Y., State Rep., 730), it was held “that the defendant bad the best record title, and if there were nothing moré, their title to the money awarded for the land and paid to the testator would have been perfect.”

But plaintiff claims that for more than twenty years before the land had been taken by the city and the award made, he and those under whom he claims were in the actual possession of the land claimed under a conveyance, arid that hence his title to the award was perfect on that account; and the court held that there being some evidence from which the jury could find that the land was protected by a substantial enclosure during a period of more than twenty years preceding the date of the award, that plaintiff’s claim of adverse possession was well founded.

The exceptions must, therefore, be sustained and a new trial ordered, with costs to the defendant to abide the event of the action.

Sedgwick, C. J., and Freedman, J., concur.  