20 N.Y.S. 145 | N.Y. Sup. Ct. | 1892
The parties own adjoining lots on the east side of Partition street, in Saugerties, and the controversy arises out of an alleged right of way claimed by defendants over appellant’s lot. In 1854 plaintiff’s land was owned by John Clennon, who, with Abigal Heath, owning the adjoining lot on the" north, on May 17, 1854, by deed created a lane between the two lots for the use thereof. Defendants own the lot on the east side of Partition street, adjoining plaintiff’s lot on the south. On the rear of defendant’s lot is a barn, and the only means of access thereto by teams from Partition street is through the above-mentioned lane and across the rear of plaintiff’s lot. The testimony shows that the owners or occupants of defendants’ lot for over 80 years prior to this action, both before and after its purchase by plaintiff, have used to a greater or less extent said lane and way across plaintiff’s lot as a means of access to said barn. Plaintiff obtained title to the lot he now owns on May 9, 1867, and to the premises now owned by defendants on April 24, 1869. He remained the-owner of both lots until March 12, 1889, when he sold to defendants the property now occupied by the latter. Ho mention is made in the deed of a right of way across plaintiff’s premises or through said lane. Defendant Schwartz and one Lazarus testified in substance that just before the deed, and pending the negotiations leading to the purchase, plaintiff went with the said witnesses from Partition street east through the lane, and from the end of the lane through a gate across the rear of his lot to the barn, and pointed out the said route as the right of way to the barn; and Schwartz testified that in making the purchase he relied upon such representations. There was conflicting evidence as to the representations made by the plaintiff, presenting a question of fact which was properly submitted to the jury. Plaintiff, shortly before the action, fastened up the gate at the end of the lane, thus preventing access by defendants to their barn. They broke the fastenings, and plaintiff brought this action. Defendants claim a right of way by necessity, and also- by prescription. The trial judge held that defendants established no right of way by necessity or prescription, and withdrew these questions from the jury; but submitted the question whether the alleged representations of plaintiff as to the right of way were in fact made, and, if made, he instructed the jury that “the plaintiff so practically located what he sold as to give the defendants such a license, coupled with such interest, to go through this alley, that he cannot and ought not to be permitted to revoke it.”
Concurring with the view of the court below that the evidence did not establish a right of way by necessity or prescription, the only question for our consideration is whether plaintiff, having, as determined by the verdict, at the time of the purchase represented that there was a right of way to the defendants’ barn, as now claimed by them, is estopped by such representations. The plaintiff was selling to defendants a lot of land, with a barn on the rear. It was apparent that there was no access to the barn for teams except through
The appellant claims that the court below erred in receiving paroi evidence as to negotiations prior to the deed. Corse v. Peck, 102 N. Y. 513, 7 N. E. Rep. 810. The doctrine in the authority above cited is not applicable in this case. Parol evidence as to the representations of á grantor prior to the execution of the deed may be shown to establish fraud or an estoppel. See cases cited above; also Newman v. Nellis, 97 N. Y. 285.
The appellant further suggests that the court erred in receiving and refusing to strike out the evidence tending to establish the right of way claimed by prescription. Assuming that such testimony was incompetent, yet the court, in his instructions to the jury, withdrew this evidence from their consideration, and stated that the only question for them was as to what occurred between plaintiff and defendants at or immediately prior to the purchase as to this right of way. He instructed the jury clearly that the evidence.did not establish a right of way by necessity or by prescription, and that those questions were not for them to consider. It was formerly held that an error in receiving improper evidence was not cured bya direction of the judge to
The appellant insists that the court below erred in denying the motion for a new trial on the ground that the verdict was against the weight of evidence. We think that this is a case where the trial court properly submitted to the jury the question of fact in the ease. There was conflicting evidence, and, although we might, on reading the testimony, reach a different conclusion from that arrived at by the jury, yet we are unable to say that the evidence was so strongly preponderating in favor of the plaintiff as to render a reversal of the judgment proper. The judgment should be affirmed, with costs.
All concur.