Sutter v. Vanderveer

• Decision Date: 02 December 1890
• Citation: 25 N.E. 907,122 N.Y. 652
• Parties: SUTTER v. VANDERVEER.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 652

25 N.E. 907

SUTTER

v.VANDERVEER.

Court of Appeals of New York, Second Division.

Dec. 2, 1890.

Appeal from a judgment of the general term of the supreme court in the second judicial department affirming a judgment entered on a verdict directed at the circuit, and also affirming an order denying a motion for a new trial. Action for the conversion by the defendant of a quantity of oysters alleged to belong to the plaintiff. The defendant claimed that he was a resident of the town of Jamaica, in Queens county; that the oyster-bed in question was in said town, and that he had a lease thereof from the proper authorities pursuant to the provisions of chapter 639 of the Laws of 1871; that the plaintiff was a non-resident of the town, and had no right to plant oysters in the public waters thereof, in violation of said act; and that, being a trespasser, he lost all right to the oysters so planted by him, and could not maintain an action for the conversion thereof against one in lawful possession of the bed. Evidence was given in behalf of the plaintiff tending to show that the oyster-bed in dispute was in the town of New Lots, county of Kings, while, according to the evidence for the defendant, it was in the town of Jamaica, county of Queens.

A. N. Weller, for appellant.

William J. Gaynor, for respondent.

VANN, J., ( after stating the facts as above.)

Upon the trial of this action there was a conflict of evidence, and, unless the question of fact was determined in favor of the defendant, the question of law, upon which he relies to reverse the judgment against him, is not presented by this appeal. At the close of the evidence each party moved that a verdict be directed in his favor, whereupon the court ordered the jury to find a verdict for the plaintiff, and to assess his damages. The trial judge in giving this direction to the jury remarked that it was his impression that the facts were as claimed by the defendant, but that it was not material, as the question turned upon the construction of certain statutes. After the jury had assessed the damages and rendered their verdict, the defendant moved to set the same aside, and for a new trial upon all the grounds specified in section 999 of the Code of Civil Procedure. The court reserved its decision, and the justice presiding stated that in deciding said motion he should hold the facts to be as claimed by the defendant; but the order denying the motion contains no statement to that...