123 N.Y.S. 360 | N.Y. App. Div. | 1910
At the opening of the case, and before any testimony was introduced, defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. At the close of plaintiffs’ case a motion for a nonsuit was made. The denial of these motions constitutes reversible error, for the reason that it affirmatively appears that, as against defendant, plaintiffs were not the owners of the property which constitutes the subject-matter of this action, and for the conversion of which defendant has been held in damages. The complaint" alleges and the proof establishes the following facts: A corporation known as the Trustees of the First Presbyterian Church of den Cove was the owner of a tract of land, with a frame church building thereon, situated at South den Cove in the town of Oyster Bay. ■ On the 23d of October, 1906, the corporation conveyed to plaintiffs the building and the contents thereof by an instrument in writing described as a bill of sale. From this instrument it appears that the building only was sold, and in connection with the sale plaintiffs were given the privilege of removing the building from the property as soon as convenient without damage to the said property beyond the removal of any trees which may be found in the way of such removal. That this building formed part of the realty, and that the conveyance thereof was an interest in land, must be conceded. (Green v. Armstrong, 1 Den.
Subsequently to the entry of judgment in this action, defendant made a motion for a new trial upon the ground of surprise and newly-discovered evidence, and from the order denying that motion an appeal was also taken. We think that the affidavits used upon that motion, taken in connection with the case made, did not justify the trial court in setting aside the verdict, and the judgment entered thereon, upon the grounds specified. The order denying the motion for a new trial on the ground of surprise and newly-discovered evidence should be affirmed, with costs to the respondents. The judgment and the order denying a motion for a new trial upon the grounds specified in section 999 of the Code of Civil Procedure should be reversed and a new triaVgranted, costs to abide the event.
Jenks, Thomas, Rich and Cabe, JJ., concurred.,
Judgment and order reversed and new trial granted, costs to abide the event. Order- denying motion for a new trial on the ground of surprise and newly-discovered evidence affirmed, with costs to the respondents.