Hill v. Mowbray

Woodward, J.: The plaintiff, proceeding Under the provisions of section 1638 of the Code of Civil Procedure, seeks a judicial determination of adverse claims to real property in her possession, and has judgment. The defendants appeal from such judgment. There is no question but that the plaintiff pleaded a good cause of action under the statute, and her own testimony, that she has been in possession of the premises under a claim of title in fee for more than one year prior to the commencement of this action, is undisputed. The deed under which plaintiff claims title is in evidence, and there is evidence tending to show that her predecessor in title had been in possession of the premises for many years, so that at the close of plaintiff’s case she had established, without dispute, every fact essential to the judgment which she now has. The defendants, in their answer, denied all of the material allegations of the complaint, and set up a counterclaim to the effect that they were direct descendants of one Eliphalet Mowbray, deceased, and through him claimed an interest by right of inheritance of the property mentioned and described in the complaint, and demanded' judgment dismissing the complaint. No competent evidence of title in Eliphalet. Mowbray or of any right or interest in the defend-. ants was offered upon the- trial, and the defendants having rested, the plaintiff moved for the direction of a verdict. Defendants objected on the ground that the plaintiff has not made out a case entitling her to a direction, and the learned court granted-the motion and directed a verdict in favor of the plaintiff, to which the defendants took an exception, without making any request to go to the jury upon the question of possession, or any other issue; [509] The practice followed was that approved in Stackhouse v. Stotenbur (22 App. Div. 312); Merritt v. Smith (50 id. 349) and Vanderveer Crossings v. Rapalje (133 id. 203, 205), and we are unahle to discover any reason why the judgment should be disturbed. The judgment appealed from should be affirmed, with costs. Jerks, P. J., Thomas, Carr and Bich, JJ., concurred. Judgment affirmed, with costs.