Kraus v. Birnbaum

• Decision Date: 06 December 1910
• Citation: 93 N.E. 474,200 N.Y. 130
• Parties: KRAUS v. BIRNBAUM.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 130

93 N.E. 474

KRAUS

v.BIRNBAUM.

Court of Appeals of New York.

Dec. 6, 1910.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Anna Kraus against Louise Birnbaum. From a judgment dismissing the complaint, plaintiff appealed to the Appellate Division of the Supreme Court, where the judgment was reversed (132 App. Div. 567,116 N. Y. Supp. 916), and defendant appeals. Reversed.

See, also, 132 App. Div. 940,118 N. Y. Supp. 1118.

Jeremiah K. Long, for appellant.

John W. Roddy, for respondent.

CHASE, J.

This is an action of ejectment. Upon the trial at the close of the plaintiff's evidence the defendant moved for a nonsuit upon grounds stated at length. The motion was granted and the court said: ‘Upon the two grounds that the plaintiff has failed to prove that she has been ousted from the possession of said lot (the lot described in the complaint), and on the ground that the plaintiff has failed to prove that defendant was in possession of any part of said lot at the time of the commencement of this action, I grant the motion to dismiss the complaint.’

The plaintiff duly excepted to the determination of the court and asked to go to the jury upon all of the issues raised by the pleadings. The motion was denied and an exception was taken to such denial. Judgment was entered, and upon appeal to the Appellate Division of the Supreme Court therefrom the judgment was reversed, the order and judgment stating it to be upon the law and the facts, and a new trial was granted, with costs to the appellant to abide the event.

It is urged that because the judgment of the Trial Term was reversed upon the facts as well as the law, this court has no jurisdiction to hear the appeal. Tousey v. Hastings, 194 N. Y. 79, 86 N. E. 831;Van Slyck v. Woodruff, 192 N. Y. 547, 84 N. E. 724;Hirsch v. Jones, 191 N. Y. 195, 83 N. E. 786.

Upon a motion for a nonsuit an issue of law only is presented. The question of law is, whether admitting all the facts presented, and giving to the plaintiff the advantage of every inference that can properly be drawn from the facts presented, an issue of fact is presented for the determination of the jury. Second National Bank of Morgantown v. Weston, 172 N. Y. 250, 64 N. E. 949;Ware v. Dos Passos, 162 N. Y. 281, 56 N. E. 742;Second Nat. Bank of Elmira v. Weston, 161 N. Y. 520, 55 N. E. 1080,76 Am. St. Rep. 283;Witherow v. Slayback, 158 N. Y. 649, 53 N. E. 681,70 Am. St. Rep. 507;McDonald v. Met. St. Ry. Co., 167 N. Y. 66, 60 N. E. 282;Place v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 345, 60 N. E. 632.

The case of Collier v. Collins, 172 N. Y. 99, 101,64 N. E. 787, is called to our attention, and it is claimed that it is authority for the defendant's claim that without the entry of an order denying a motion by the plaintiff for a new trial and an appeal therefrom, the Appellate Division had no power to review or reverse the judgment of nonsuit. In the Collier Case there was no exception to the determination of the court granting the nonsuit, and the appeal was from the judgment only. The court say: ‘Such an appeal does not permit that court (Appellate Division) to pass upon the weight of evidence, and is in effect a waiver of any further review of the questions of fact. While Appellate Divisions have a wide latitude, which we would be glad to have them exercise more freely, in reversing upon the facts, they have no power to do so, in an action tried before a jury, unless an order is entered denying a motion for a new trial made upon the proper ground and an appeal is taken from the order.’

In Alden v. Knights of Maccabees, 178 N. Y. 535, 542,71 N. E. 104, 106, this court, referring to the Collier Case, say: ‘No exception was taken at the trial to the ruling of the court dismissing the complaint, and no motion for a new trial was made, but the appeal taken from the judgment only. We held that, because there was no exception, the Appellate Division was without power to reverse the judgment, though the nonsuit might have been improper.’

The decision in the Collier Case in no way affects the other decisions of this court which hold that a nonsuit or direction of a verdict, duly excepted to, raises a question of law reviewable on appeal from the judgment both in the Appellate Division and in this court. The only question now for determination in this court is a question of law, notwithstanding the form of the order of the Appellate Division.

The land, the possession of which is in dispute in this action, is situated in a short block on the south side of Twenty-Fourth street (formerly Utica street) in the city of Watervliet. The block is bounded on the west by Seventh avenue (formerly William street) and on the east by a 20-foot alley. The block of land is divided into four lots, known and distinguished on a certain map of a part of a farm made January 1, 1847, by George Henry Warren and copied and additions made thereto November 11, 1851, by B. Turner, civil engineer. The four lots are each described as 25 feet front and 94 feet deep running from Twenty-Fourth street to a 10-foot alley. They are numbered from Seventh avenue on said maps as 75, 76, 77, and 78. On the corner of Twenty-Fourth street and the 20-foot alley is a house that has stood there for many years. On the corner of Twenty-Fourth street and Seventh avenue is another house that has also stood there for many years. The plaintiff's husband became the owner of lots 75 and 76 by deed dated March 4, 1895, in which said lots are described as being 50 feet on Twenty-Fourth street and running to the 10-foot alley, and as being lots 75 and 76 as distinguished on said maps. The defendant became the owner of lot 77 by deed dated May 18, 1886, in which the lot is described as being 25 feet on Twenty-Fourth street and running to said alley, and as being lot 77 as distinguished on said maps. The distance from the northeast corner of the house on Twenty-Fourth street and the 20-foot alley to the northwest corner of the house on Twenty-Fourth street and Seventh avenue is 108 feet, being 8 feet more than the aggregate stated width of the four lots. It does not appear whether this excess of land arises from an error in the surveys and maps or whether it arises from one or the other or both of said houses extending over upon the alley or avenue respectively. There is a house on the defendant's lot, and measuring from the northeast corner of the house at Twenty-Fourth street and the 20-foot alley westerly 50 feet, the defendant's west line would appear to be about one foot westerly of her...