103 N.Y.S. 353 | N.Y. App. Div. | 1907
The evidence with respect to the understanding of the parties as to the.meaning of the words “more.or less” was, of course, incompetent in an action based on the contract as it stands. The evidence shows good record title in the defendant to the southerly 170 feet of the premises described in the contract and in the second deed tendered by her. The testimony of the surveyor called by the defendant, that the description in neither deed was correct, owing to the fact that he located the defendant’s northerly boundary line 228.14 feet southerly from the southerly line of One Hundred and Sixty-eighth street, which is not the boundary line" described in either deed tendered, manifestly is to be construed as indicating that in his judgment, owing to the surplus land in the block over the frontage given in tire Findlay survey, the defendant owns 1.1 feet more than 171.25 feet, because the surveyors do not disagree about the southerly line, and, therefore, if defendant’s- northerly line commences 228.14 feet from the southerly line of One Hundred and Sixty-eighth street she. should own 172.36 feet. As shown in the statement of facts, there is no conflict in the evidence with respect to the location of the southerly boundary line of lot 133. All concede that that line is fixed and established and corresponds with the fence constructed thereon. It thus appears, without controversy, that defendant had good record title to .170 feet, and that she was in possession of 171.25 feet or more.. The evi
Patterson, P. J"., Ingraham, Clarke and Scott, JJ., concurred.
Judgment affirmed, with costs, Order filed.