
    Joseph Hughes, Resp’t, v. Henry Hughes, Impleaded, etc., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    1. Appeal—Case
    Error, to be available for reversal, must appear from tbe record.
    2. Same—Harmless.
    Errors, not prejudicial, do not afford ground for reversal.
    3. Pleadings—General denial—Ejectment.
    In an action of ejectment, anything, which tends to disprove the plaintiff’s allegations of seizin and right to possession, is admissible in evidence under a general denial of those allegations.
    Appeal from a judgment for the plaintiff which awarded him exclusive possession of the premises- and was entered upon the verdict of a jury in an action of ejectment.
    The complaint alleged exclusive seizen of the plaintiff in fee simple and wrongful entry and detention of possession by the defendant. The answer denied the allegations of the complaint, and for a further defense asserted that the defendant is the owner in fee simple of an undivided one-eighth of the premises and in pos-i session as tenant in common with the plaintiff, the derivation of the defendant’s alleged title to such one-eighth being specifically pleaded.
    
      John J. Gleason, for app’It; Edw. W. B. Johnston, for resp’t.
   Bischoee, J.

The notice indicates that the appeal is intended to be taken from the judgment only. Hence we are not to inquire into the weight of the evidence but to confine our review to the exceptions taken to the rulings of the trial court before the verdict was rendered. Code Civ. Pro. §§ 992, 994, 995, 1346; Boos v. World Mut. L. Ins. Co. 64 N. Y. 236; Matthews v. Meyberg, 63 N. Y. 656.

From the evidence adduced for the plaintiff it appeared that on November 4th, 1874, by deed dated and recorded on that day, the executors of Thomas Kivlen, deceased, conveyed the premises described in the complaint to Lewis Johnston ; that Johnston, by .lease dated November 4th, 1874, and recorded November 15th, 1874, demised the premises to William Hughes, the tenant in possession, for five years and five and one-half months, with a privilege of ten years’ renewal from May 1st,-1880; that thereafter Johnston conveyed the premises, subject to the lease, to Mary C. Powers, the wife of William P. Powers, by deed dated November 5th, 1874, and recorded November 12th, 1874; that Mary C. Powers, by deed dated May 1st, 1875, and recorded three days later, conveyed to Catharine Barrett, again subject to the lease to William Hughes. It is from this period that the divergence in the claim of title by the respective parties to this action begins.

For the plaintiff it further appeared that by deed dated May 20th, 1875, and recorded May 25th, 1875, Catharine Barrett conveyed the premises to Bridget Barrett, subject to the lease to William Hughes ; that Bridget Barrett died in February, 1878 or 1879, intestate, leaving her surviving her husband, Michael, who died in August, 1881, a son, Michael, a daughter, Delia Dugan, and six grandchildren, Irene Florence Marian, Julia Therese, Lavinia, John Joseph, Emma and Mary Kate Barrett, the children of a deceased son, John Barrett; that -Emma and Mary Kate Barrett died intestate, and without issue, leaving their three sisters and brothei’ surviving, as their heirs at law; that on J une 25th, 1891, by deed of that date, and recorded August 11th, 1891, Michael Barrett, the son of Bridget, conveyed his interest to the plaintiff ; that by deed of like date and record Delia Dugan, the daughter of Bridget Barrett, and Irene Florence Marian Barrett, and Julia Therese Barrett, two of the surviving grandchildren of said Bridget Barrett, conveyed their respective interests, also to the plaintiff; that on behalf of Lavinia Barrett and John Joseph Barrett, who were infants at the time, proceedings were instituted in the supreme court, pursuant .to the statute for such cases made and provided, for a sale of their interests; and that these proceedings culminated in a sale and conveyance of the interests of the infants to the plaintiff by deed dated and recorded September 22nd, 1891. From the testimony -of witnesses called for the plaintiff it appeared that William Hughes, the tenant in possession, attorned to Bridget Barrett, and that the latter was in receipt of the rents which accrued under the lease from Johnston to William Hughes. The record title and possession being thus united in Bridget Barrett, the plaintiff’s right to possession, as the grantee of her heirs at law, seems indisputable.

By answer, however, the defendant-appellant denied the plaintiff’s seizin and right of possession. He further asserted that by a deed dated May 3rd, 1875, seventeen days before her .deed to Bridget Barrett, and recorded November 8th, 1877, about two and a half years after the record of the last mentioned deed, Catharine Barrett conveyed the premises in question to William P. Powers; that Powers died leaving a last will and testament by wbicb he devised his real property in equal shares to Joseph Hughes, the plaintiff, and William Hughes, a brother of the plaintiff and the defendant-appellant; that thereafter said William Hughes died, intestate, leaving him surviving, as his heirs at law, the plaintiff, the defendant-appellant, Susan Riordan, a sister, and Michael William Hughes and Mary C. Adams, the children of a deceased brother, Michael Hughes. As such heir at law of William Hughes the defendant-appellant claimed to be entitled to one undivided one-eighth of the premises and to be in possession as tenant in common with the plaintiff.

The exceptions specially urged and argued upon this appeal may be grouped together into two classes, those relating to the exclusion of the alleged deed from Catharine Barrett to William P. Powers, the alleged will of William P. Powers, and of evidence tending to show Bridget Barrett’s knowledge of the existence of the prior deed to Powers at the time of Catharine Barrett’s deed to her; and those relating to the exclusion of evidence tending to show that at the time of the several conveyances to the plaintiff the premises were in the adverse possession of the defendant-appellant from which fact it would appear that the several conveyances to the plaintiff were not such in fact because contrary to the statute which provides that “every grant of lands shall be absolutely void, if at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor,” R. S. Banks Bros. 7th od. vol. iii., p. 2196, § 147, and so, that the plaintiff had failed to establish his title and right to possession.

Neither of the exceptions comprising the first mentioned class presents error. Error is never presumed. To be available for reversal it must appear from the record. Standard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85; Tracey v. Altmeyer, 46 N. Y. 598, 604; Appleby v. Erie Co. Sav. Bk., 62 N. Y. 12, 18; Carman v. Pultz, 21 N. Y. 547; Briant v. Trimmer, 47 N. Y. 96. By omitting from the record presented to ns the papers, of the exclusion of which the defendant-appellant seeks to predicate error ; we are denied every opportunity for judging of their relevancy or materiality, or of their admissibility without proof of their due execution. We are unable, therefore, to determine that any error, prejudicial to the defendant-appellant, was committed in the exclusion of those papers. Errors, not prejudicial, do not afford ground for reversal. Biershenk et al. v. Stokes, 7 Misc. 692; 58 St. Rep. 330, and cases there cited. Eor the like reason the record does not disclose that the testimony offered to show knowledge on the part of Bridget Barrett of an alleged prior deed to Powers related to relevant or material matter,, or that the exclusion of the testimony operated to the defendant-appellant’s prejudice.

The second class of exceptions, however, presents error for which the judgment must be reversed. As already stated, it appeared from testimony for.the plaintiff that William Hughes was in possession of the premises as the tenant of Bridget Barrett. It likewise appeared from the testimony that the defendant-appellant was associated in business, conducted upon the premises, with William Hughes, and that during the lifetime of the latter, and while he continued in possession, the defendant-appellant succeeded to the business and possession. Furthermore, the plaintiff was permitted to introduce in evidence a paper executed by William Hughes only, and purporting to be a lease from him to the defendant-appellant. From these facts an inference was that the defendant-appellant entered into possession as tenant of the plaintiff’s grantors and so was within the rule which estops a tenant from disputing his landlord’s title and right to possession. The court so ruled.

The plaintiff was entitled to recovery of possession only-upon the strength of his own title, not upon the failure of the defendant to prove title and right to possession in himself, Roberts v. Baumgarten et al., 110 N. Y. 380; 18 St. Rep. 162, and anything which tended to disprove the plaintiff’s allegations of seizin and right to possession was admissible in evidence under a general denial of those allegations. Griffin v. The L. I. R. R. Co., 101 N. Y. 348; O'Brien v. McCann, 58 N. Y. 373. It would have been competent to the defendant-appellant to show that the instruments under which the plaintiff claimed to have derived title and right to possession were forgeries. Hence, if for other extraneous matter, the instruments purporting to be grants to the plaintiff were not such in fact, the defendant-appellant was entitled to the admission of such matter in evidence. When, however, the defendant-appellant offered himself as a witness in his own behalf tq show that Powers was in possession of the premises during William Hughes’ occupancy, and that neither Powers, nor William Hughes, nor the defendant-appellant, ever acknowledged Bridget Barrett or the plaintiff’s claim of title, but that they and each of them disputed the claim, and held possession of the premises adversely thereto, and under Catharine Barrett’s alleged deed to Powers, his testimony was excluded under objection from the plaintiff’s counsel regarding its relevancy, materiality and competency.

It nowhere appeared that the testimony offered and excluded related to a personal transaction or communication between the witness and a deceased person through whom he claimed to have derived title. Hence the witness was not disqualified under the provisions of § 829 of the Code of Civil Procedure.

The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.  