| N.Y. Sup. Ct. | Nov 15, 1810
The lessors of the plaintiff proved a possession of the premises in themselves and in those under whom they claimed, for upwards of 30 years. Barent Vosburgh was in possession of the premises as early as 1767 or 1768. He died about the year 1777, and devised his real estate to his son Cornelius Vosburgh. He succeeded to the possession of the premises, and in 1789 sold them by deed to -John L. Van Alen, jun. He took possession, and used the premises for years, and then Isaac I. Van Vleeck took possession, and was in possession to 1799. These two last possessors are lessors of the plaintiff. In addition to this strong proof of title, it was shown, that in 1799 the defendant said he had taken the premises'of Van Vleeck, one of the plaintiffs, for one year; and that at another time he offered to give up the possession to Van Alen, another plaintiff, in the same way he had it óf Van Vleeck, but that at another time he refused, and denied the right of Van Alert.
To meet this testimony, the defendant offered to show that the two lessors, Van Alen and Van Vleeck, had disclaimed any right to the premises; but this disclaimer was not in writing, nor made to or in the pre.senee of the defendant; and he offered further to prove, that he had been in the actual possession of the premises in his own right for more than 30 years before the bringing of the suit. This testimony was overruled. Such a disclaimer "as was here set up could be of no validity 5 and such evidence, if admissible, would lead to fraud and perjury, and be destructive of title to property. (6 Johns. Rep. 21.) The other evidence, which was overruled, went to deny and destroy the landlord’s right,' which a tenant, assuming him to be a tenant, is not permitted to do; (3 Johns. Rep. 504.) but it also went to disprove the fact of any tenancy; and in that view it ought to have been received, and it might have been material. On this single-point, then, the motion to set aside the verdict is granted, with costs 'to abide the event of the suit.
Rule granted.