83 N.Y.S. 538 | N.Y. App. Div. | 1903
The parties to this action are the owners of adjoining premises situate upon Lion street and south of the intersection of Seventh . street and Lion street, in the city of Dunkirk; and this action is in ejectment to recover possession of a strip of land two feet, and one-half inch in width along the south line of the plaintiff’s premises.
It seems that a dispute having arisen respecting the dividing line between the premises of the respective parties, the defendant herein
The present action was commenced at about the same time, as the suit in equity, and both actions were referred to the same ■referee, who, after'a-trial of the equitable action, found that there was a mistake in the description of the line in question, and that the same, instead of being 134 feet south of the corner of Seventh and Lion streets, was but 132 feet and one-half inch therefrom. The plaintiff in that action accepted the conclusion of the referee and entered a judgment in accordance therewith, which definitely established the disputed line at the location named.
Upon the trial of the present action the judgment roll in the equitable action was received in evidence, and after receiving additional testimony the referee found in favor of the plaintiff, awarding him possession of the strip two feet and one-half inch in width next north of the line as-located and established in-the equitable action! It is now insisted by the defendant’s counsel that the conclusion reached by the referee in the equitable action and the judgment entered thereon were erroneous in that the line in dispute should have been located one foot north of the northerly line of a barn upon the defendant’s, premises;, that such error was the result of a mistake upon the part of the referee, and that if the same were corrected so as to accord with the referee’s intention and a new line established, it would embrace the premises awarded to the plaintiff in-the present action.
This brief statement of the facts is, in our opinion, sufficient tv dispose of the present appeal, for'it is hardly necessary to - suggest that any error committed- by the referee in the equitable action cannot be corrected by a collateral attack. (Audobon v. Excelsior Ins. Co., 27 N. Y. 216, 221 ; Stannard v. Hubbell, 123 id. 520.)
Either an-appeal should have been taken from the judgment in the equitable action, or-a- motion made to open the same for the purpose
All concurred.
Judgment affirmed, with .costs.