Danziger v. Boyd ( 1887 )

The Court at General Term held:

“This decision should be followed, unless it clearly appears that, for some cause not presented by counsel or considered by the cqurt on that appeal, the former decision was erroneons. The learned counsel for the appellants now claims that the deed to the plaintiff, under which he claims title to the premises in dispute, was void for the reason that at the time of the delivery of the deed such land was in actual possession of the defendant claiming under title adverse to the plaintiff. § 147, article IV., title I., chap. 1, part II. Revised Statutes. The case of Crary v. Goodman, 22 N. Y. 170, appears to be decisive against the appellant on this point. The court there says, ‘Nothing can satisfy the language of the latter act (the statute in question) but the existence of some specific title under which the party claims. The title may be good or bad, but there must be, at least, a color of title opposed to the title of the grantor in the deed; and there is no such color of title when the possession was taken purely by mistake as to the boundaries of the deed.’ On an examination of the other objections to the plaintiff’s title it clearly appears that they are within the decision of the case on the former appeal, and we think that decision is decisive. The trial judge submitted the question of the amount of the mesne profits to the jury, as directed by the decision of the general term on the last appeal, and applying that decision, it does not appear that the court below erred.”

Townsend & Mahan, for appellants. Kaufmann & Sanders, attorneys, and L. Sanders, of counsel, for respondent.

Opinion Per Curiam.

Judgment affirmed with costs.