Hardenburgh v. Crary , 1858 N.Y. App. Div. LEXIS 188 ( 1858 )

Hogeboom, J.

There is one particular in which I think the judge at the circuit erred, and for which I think a new-trial ought to be granted, without examining the other questions in the case. He excluded evidence to show who was in the actual occupation of the premises in dispute; the object being, doubtless, to show that the defendant was so in possession. I think this was a question of fact, and not a conclusion of law. It was a question to be determined by ocular observation, and not by a process of reasoning. Actual possession means actual occupancy. It does not involve the question of right to the premises, but the mere question of who was upon the premises. It is true, this was one of the questions in dispute, but that did not make it any the less a matter of fact, as to which a witness could testify. It might be more or less difficult to answer if both parties were upon the premises, but the difficulty of the question does not affect the competency of the evidence. It might involve the necessity of further questions, and perhaps of a rigid cross-examination, but this .last I think was the true remedy, and not an objection to the question itself. It belongs to that class of facts of which there are many in the law, seemingly involving, to some extent, the expression of an opinion, or a conclusion from other particular facts, as to which, from the necessity of the case, the law tolerates a direct and comprehensive question. But the point is directly adjudged in this court, by a decision at general term. (See Parsons v. Brown, 15 Barb. 590.) And if we are to regard the decision of a co-ordinate branch of this court as of controlling authority—and such, with much reason, is urged to be the rule— (see Burt v. Powis, 16 How. Pr.289,) then the only course left for us is to apply the law in accordance with such decision. But I regard the decision above referred to as correct in principle, independent of the question of authority. I am therefore of opinion that the order of the special term, granting a new trial in this action, should be affirmed, with costs to abide the event.

[Albany General Term, December 6, 1858.

G-ould, J. concurred.

Weight, J. dissented.

Order affirmed.

•Wright, Gould and Eogehom Justices.]