278 A.D. 983 | N.Y. App. Div. | 1951
In a consolidated action in ejectment, in which respondent counterclaimed upon a claim of title by adverse possession, plaintiff Joseph D. Van Valkenburgh appeals from a judgment dismissing plaintiffs’ complaint and awarding judgment in favor of respondent upon the counterclaim, adjudging that she has fee title to the subject real property and permitting her to remove fences and obstructions placed thereon by plaintiffs. Judgment affirmed, with costs. No opinion. Carswell, Johnston, Sneed and Wenzel, JJ., concur; Nolan, ■P. J., dissents and votes to reverse the judgment, to dismiss respondent’s counterclaim and to grant judgment to appellant Joseph Van Valkenburgh, with the following memorandum: In my opinion the evidence was insufficient to establish occupation or possession of the lots in suit by respondent or her deceased husband for such a time or in such a manner as to establish title by adverse possession. There is evidence in the record that William Lutz, respondent's husband, in his lifetime, and his family, occupied and cultivated the lots. Respondent testified on trial, however, that she knew that her husband had