280 A.D. 980 | N.Y. App. Div. | 1952
In an action to recover possession of real property and for damages for the withholding of same, defendant appeals from a judgment in favor of plaintiffs and dismissing his counterclaim. Plaintiffs appeal from so much of the judgment as adjudicates that they are not entitled to the “ judgment of ejection prayed for in the complaint ” and fails to direct damages in their favor. The action, instituted in 1949, is based upon an alleged encroachment of the northerly wall of defendant’s building on the southerly portion of plaintiffs’ property. Defendant’s counterclaim for damages is predicated upon an alleged encroachment by the southerly wall of plaintiffs’ building on the rear of defendant’s premises. Judgment modified on the law and the facts by striking therefrom the first decretal paragraph, and the words following the word “merits” in the second decretal paragraph, and by adding a provision that the complaint is dismissed. As gp modified, the judgment is unani