1 Barb. 168 | N.Y. Sup. Ct. | 1847
This was an action of trespass, commenced of January term, 1845, and tried in April of that year, when a verdict was taken for the plaintiffs, for $2000, to be augmented or reduced by the circuit judge; subject to the opinion of the court on a case, with liberty to either party to turn the same into a bill of exceptions or special verdict.
The circuit judge afterwards gave judgment on the case so made, in favor of the plaintiffs, and increased the amount of the damages to $2040, and the cause is now brought before this Court, on an appeal from the judgment given by the circuit judge.
The declaration contains three counts. In the first count, the premises upon which the trespass is alleged to have been committed, is bounded on the north by the south side of Grand-street, in the village of Williamsburgh; on the east by a lot called “ corporation lot,” as laid down on a map made by Charles Loss; on the west by high water mark, in the East river, and on the south by a line twenty-five feet south of Grand-street, in the said village.
The premises described in the second Count, are the same as in the first count, except that they are bounded by low, instead of high water mark, in the East river; and the premises described in the third count, are the same as those described in the two first counts, except that they extend into the East river so as to include a pier on the south side of Williamsburgh
Daniel Ewen, a witness for the defendants, testified that he was a corporation surveyor of the city of New-York; and on being shown the map of the corporation property at Williams-burgh, he said it was correct. It was agreed that the said map might be referred to. On being shown a map of the said property, he said it was substantially correct. That he made the survey for that map in 1842. Before 1827, the pier was as is indicated by the pink color. After that, it was filled out, and made to conform to the blue lines. The corporation have built a pier, or bulkhead, at the end of the premises described in the declaration in this cause. It appears on the map just shown to
The plaintiffs, to entitle themselves to recover, were bound to show—-
1. That they had, at the time the trespasses mentioned in the declaration were committed, the actual possession of the premises in question, or that they then had a title to the said premises. 2. That the defendants, by some person or persons acting for them, and by their authority, entered upon the possession of the plaintiffs, and expelled them, and kept them out of possession. 3. That the defendants, by their agents or tenants, received the rents, issues and profits of the premises, while the plaintiffs were kept out of possession. 4. That the plaintiffs had, before the commencement of this action, re-entered upon the said premises and regained possession thereof. (19 Wend. 507. 9 John. Rep. 61. 2 John. Cas. 27.) And, 5. If the plaintiffs had proved all the preceding facts, and thus shown a right to recover, they could only be allowed to recover the rents and profits of such part of the premises in question, as was proved to have been held by the defendants’ authoii for the time during which they were so held, thereof. (Arlin v. Parkin, 2 Burr. Rep. 668. 2 R. S. 311 §48.)
If the evidence above set forth did not establish 1 facts above stated, the plaintiffs ought to have been What evidence did the plaintiffs give of title to the ; question, or any part of them ? They offered no c dence for the purpose of showing that they, or any person under whom they claim, had title prior to the time when the trespasses complained of are alleged to have been committed. What evidence did they give, that they had before, or at the time, the trespasses complained of were committed, the actual possession of the premises in question? None, whatever. No witness was called to prove that the plaintiffs, or q,ny person under whom they claimed, had ever had the actual possession of the premises, at any time before April, 1841. Not content with
If the. plaintiffs had proved a title, or prior possession, and
The following extract, from the opinion of the circuit judge, shows how he arrived at the conclusion that the plaintiffs were entitled to recover $2040 damages. “ It seems, that prior to the recovery in ejectment, the defendants received as rent of a part of these premises, $430 a year, and since the recovery $500 a year rent has been paid for the same part of the premises, and $200 a year for the residue thereof. How much was paid for this latter part prior to the recovery does not appear. It is perhaps fair to presume, situated as the premises are, and have been for several years, that all parts of them were in as much demand prior to the recovery as since.
“The demise is laid in the declaration at 1st December, 1836, and there being no plea of the statute of limitations, the damages are to be calculated from that time. Taking then the rent at $630 a year, for five years and five months, and allowing interest upon it from the end of each year, and the costs as taxed at $130, and allowing these plaintiffs one half of that sum, as their suit is only for a moiety, and they would be entitled to $2040,67, for which amount there must be judgment for the plaintiffs.
*184 Rent from 1 Dec. 1836 to Dec. ’37, .... #630
Int. to 1 May, ’42, 4 y’rs 5 m’s, .... 194,77
Rent from 1 Dec. ’37 to Dec. 1, ’38, .... 630,00
Int. as above 3 y’rs 5 m’s,...... 150,67
Rent from 1 Dec. ’38 to 1 Dec. ’39, .... 630,00
Int. 2 y’rs 5 m’s,......... 106,57
Rent from 1 Dec. 39 to 1 Dec. ’40, , . , . 630,00
Int. 1 y. 5 m’s,.......... 62,47
Rent from 1 Dec. ’40 to 1 Dec. 41,..... 630,00
Int. 5 m’s,........... 18,37
Rent from 1 Dec. ’41 to 1 May, ’42, .... 262,50
Costs of ejectment,........136,00
#4081,35
#2040,67”
The annual rent of #430, which the defendants received from the ferry company, was received exclusively for the ferry. Not one cent of it was received for the pier, or for any other part of the premises mentioned in the plaintiffs’ declaration. In relation to the land leased to Robert Seeley, and for which he was to pay an annual rent of #200, the circuit judge assumed that all that land was a part of the premises in question. Whereas only one fourth part of it was a part of the premises described in the plaintiffs’ declaration. The land leased to Robert Seeley, extends from Grand-street, south one hundred feet'. The premises described in the declaration extend from Grand-street, only twenty-five feet. It is evident, therefore, that the damages as settled by the circuit judge are, by reason of his mistake as to matters of fact, excessive. But independent of the damages, a new trial ought to be granted. The costs to abide the event.