120 N.Y.S. 323 | N.Y. App. Div. | 1909
The complaint was dismissed on the ground that the suit is in equity and that a court of equity has not jurisdiction of the subject-matter of the action. The plaintiff is the owner of a tract of land in the borough of The Bronx in the city and county .of. Hew York, one of the boundaries of which, according to the record title, is the center line of Cromwell’s or Doughty’s brook. The premises lie between Cromwell avenue and Inwood avenue, southerly of One Hundred and Seventieth street, which in part forms the northerly
Courts of equity exercise jurisdiction to fix and establish boundaries which have once been defined and established but have become lost or obliterated, upon either, of two grounds: First, where it appears that the owners of the ad jacent premises are responsible for the loss or obliteration of the boundary, and secondly,, to prevent multiplicity of suits, even though not between the same parties, as, for instance, where other owners are interested in or may be affected by the establishment of the boundary or monument. (Wake v. Conyers, 1 Eden, 331; Boyd v. Dowie, 65 Barb. 237; Hough v. Martin, 22 N. C. 379 ; Beatty v. Dixon, 56 Cal. 619; Osborne v. Wisconsin Cent. R. R. Co., 43 Fed. Rep. 824; 1 Story Eq. Juris. [13th ed.] 618, 623 et seq.) In the case at bar it does not appear that the defendants,,who are the owners of any one parcel, are interested in the other parcels or any of them, or in the establishment of ■ the boundary as between them and the parcel belonging to the
We are of opinion, therefore, that equity can and should take cognizance of the case on the theory that it is. necessary to. prevent multiplicity of suits, although the possibility of conflicting adjudications in separate actions at law does not alone seem to be sufficient, according to the adjudicated cases, to warrant the interposition of equity. (Boyd v. Dowie, 65 Barb. 237; De Veney v. Gallagher, 20 N. J. Eq. 33.) On the allegations of the complaint equity also has jurisdiction to establish this boundary line upon the theory that it was once established and fixed and has become obliterated through the default of the defendants. Of course when the case comes to trial, none of the defendants excepting the respondents
The court not only dismissed the complaint as to the respondents, but declined to receive proof as against the other defendants who defaulted in pleading. This, likewise, was error.
■ The judgment' should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Judgment reversed, new trial-ordered, costs to appellant to abide event. •