3 Johns. 283 | N.Y. Sup. Ct. | 1808
The lessors of the plaintiff derive their title from T. C. Ten Eyck, and rely altogether for a recovery on the ground, that in 1791, the defendant was Ten Eyck’s tenant.
The defendant admits that in 1791, he was the tenant of Ten Eyck ; but he insists, that after Ten Eyck’s death, and when the lessors of the plaintiff had succeeded to his rights, under his will, they dissolved the connection of landlord and tenant, and abandoned their claims to the premises. And it is admitted, that if this be so, there ought to be a new trial. One question submitted to the decision of the court, therefore, is, whether the defendant did not sufficiently make out his defence.
In 1793, on the application of certain persons claiming to have an interest in the Kayaderosseras, Van Schaick’s and Clifton Park patents, the legislature passed an act for the appointment of commissioners to settle and establish the boundaries of their several tracts which were then in dispute. The commissioners appointed by this act, pur
The defendant proved by Benjamin Rosekrans, that in March, 1806, Waldron, one of the lessors of the plaintiff, and the husband of the other lessor of the plaintiff, informed him that upon the determination of the commissioners, he had given up all claim to the lands, which, according to that determination, belonged to the Kayaderosseras patent ; and that he did not censure the defendant for having purchased under the last mentioned patent, but having recently been informed, that Ten Eyck did not sign'the petition to the legislature for the appointment of the commissioners, he had renewed his claim to the lands.
From this it is evident, that Waldron knew of the submission to the commissioners, and of their decision, both of which, indeed, must have been facts of public notoriety. He expressly admits, that after the decision of the commissioners, and according to which he had'no title to the premises, he had given up all claitn thereto. He also knew, that in consequence of this decision, the defendant had purchased from the proprietors under the Kaydderos~ seras patent, But he says, that having recently been informed, that Ten Eyck had not united in the application to the legislature to pass the act of 1793, he h,ad-renewed his claim to the lands, That is, after he had for nearly ten years, acquiesced in the determination of the commissioners, and supposed himself concluded thereby, not having, during the whole of that period, demanded rent from the defendant, but on the contrary, abandoned all his claim to the land ; having by this means encouraged the defendant to purchase from the Kayaderosseras proprietors, in whom the commissioners had determined the title to be valid; having, during this period, never considered the defendant in any respect as his tenant, he now renews his claim to the land. I think this claim comes too late, and that it would be unjust, after all that has taken place subsequent
If the award of the commissioners is not conclusive as to the title, (about which I give no opinion) the plaintiff ought, atleast, to be compelled to show his title which the defendant will then be in a situation fairly to meet; and . if it should be found that the award is not conclusive, and that the premises are comprehended within the patent of Van Schaick, the defendant would then have his remedy against the proprietors, under the Kayaderosseras patent, to whom, it is to be presumed, he has paid a valuable consideration . for the lands in question, and taken the necessary covenants to indemnify him, in case of a failure of their title.
On this ground, therefore, I am of opinion, that a new trial ought to be granted. And inasmuch as I think that the act of 1795, and the award of the commissioners, pursuant thereto, ought to have been permitted to be given in evidence, for the purpose of strengthening the testimony of Rosekrans, as to the fact that the lessors of the plaintiff had abandoned all claim to the premises, and to show their acquiescence in the decision of the commissioners, I am also of opinion, that the costs ought to abide the event of the suit. '
Spencer, J. and Kent, Ch. J. were of the same opinion.
Thompson, J. and Yates, J. not having heard the argument in the cause, gave no opinion.
New trial granted.
