44 Barb. 218 | N.Y. Sup. Ct. | 1865
The exceptions to the judge’s charge to the jury are not well taken. If the disputed boundary line had been fixed and settled by agreement between the parties, as the jury by their verdict have found the fact to be, and the defendant went on with the knowledge of the plaintiff, afterwards, and made valuable and expensive improvements relying upon such settlement, without any objection or remonstrance, or notice of dissent from the plaintiff in regard to such line, thus established, he is clearly estopped from now claiming that such was not the true boundary line betiveen their respective lots. If he did not intend to be bound by the survey and the line made and marked in his presence by the surveyor called with his assent for that purpose, it was his clear duty to notify the defendant when he saw him erecting his wall, and making the addition to his house, in accordance with the line thus made. He is presumed to have known that the defendant was making the improvement in the faith that he acquiesced in the line fixed by the sur
A mere equitable defense may be interposed in this action, since the code. (Crary v. Goodman, 2 N. Y. Rep. 266.)
A new trial must therefore be denied.
Hew trial denied.
Johnson, E. Darwin Smith and James 0. Smith, Justices.J