107 N.Y.S. 868 | N.Y. App. Div. | 1907
The plaintiff appeals from a judgment dismissing her complaint at the opening of the trial at Special Term. Both parties concede that the action is in equity to remove a cloud upon the plaintiff’s title. The question turns upon the extent and validity of certain letters patent from the People of the State. The learned court dismissed the complaint upon the ground that the court did not have jurisdiction; that such a grant could only be attacked by a suit brought directly by the-sovereign, either by the People themselves, through the Attorney-iGeneral, to set aside the entire grant, or, where it affects a private individual, as in this case, by the People on the relation of the owner to set aside the grant. My discussion is . limited to the question whether an action of this nature lies. It is well, settled that where evidence dehors. the patent is required to show the invalidity thereof the patent can be .avoided “only in a direct proceeding to review the action of the commissioners,, or by action in equity to vacate the patent.”. (Blakslee Mfg. Co. v. Blakslee's Sons Iron Works, 129 N. Y. 155, a,pd authorities cited.) ■ But I think that this r.ij'Je does- not prohibit .an. action by an individual to remove á cloud on his title. The distinction is clearly
The question of any defect of parties defendant is not raised on this appeal. Whether there is such a defect in this action, which is in personam (Hart v. Sansom, 110 U. S. 151, 154; 5 Pom. Eq. Juris. [3d ed.] § 12; 1 Pom. Eq. Rem. § 12), needs not now to be considered.
I recommend that the judgment be reversed and a new trial be granted, costs to abide the final award of costs.
' Woodwabd, IIookée and Gaynqe, JJ., concurred ; Hiesohbebg, P. J., not voting.
Judgment reversed and new trial granted, costs to abide the final award of costs.