Warner v. Will , 25 N.Y.S. 749 ( 1893 )

Clement, Ch. J.

This action was brought by the plaintiff to compel the specific performance of a contract by the defendant whereby the defendant agreed to purchase of the plaintiff an undivided half of certain real estate on Kane place in this city. The defendant, after an examination of the title by his attorney, declined to carry out his agreement, on the ground that the plaintiff did not have title to the property. Plaintiff claimed that he had title by adverse possession. There was judgment for defendant at Special Term, and plaintiff has taken this appeal.

We think that the testimony in the case is entirely insufficient to establish the claim of plaintiff. The defendant proved a perfect record title in the Brooklyn and Jamaica Railway Company who received their deed about March 27, 1866. On the other hand, plaintiff, as a foundation of his title, put in evidence a deed by one Jacob H. Sackman, dated October 11, 1869, to Joseph Koehl and Antonia Koehl, and showed' that, by descent, he obtained the title of such grantors, if any, to an undivided half. The only oral testimony on the point was given by the plaintiff : “ I remember

and recollect the time when my father and mother bought this Kane place property. After it was bought, what was done with it by my father and mother was that a fence was put around it, and it was lying idle. The house will be built on the first day of June, it will be seventeen years. My father and mother had possession of that property from the time they bought it from Mr. Sackman up to the time of their death. They lived on it since the day it was built; on the first day of June last, it was finished sixteen years.”

The authorities cited by the counsel for plaintiff are actions at law, or if in equity, where the testimony showed conclusively adverse possession for a much longer period than twenty years. If we assume the truth of the testimony of the plaintiff, the defendant, if he took title, might be sued by the owner of record, the Brooklyn and Jamaica Railroad Company, and the testimony of plaintiff in this case, when given in such action, would not justify the direction of a verdict. We do not hold that plaintiff had no title to the property, but we do think that the title offered was not free from reasonable doubt. Dingley v. Bon, 130 N. Y. 607.

Van Wyck, J., concurs.

Judgment affirmed, with costs.