Property · MBE-tested

Daniel E. Donovan, Respondent, v. James H. Vandemark, Appellant

88 N.Y. 668·New York Court of Appeals·1882·NY

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Opinion

Daniel E. Donovan, Respondent, v. James H. Vandemark, Appellant. (Argued March 20, 1882; decided April 11, 1882.) This was an action of ejectment. It is reported on a former appeal in 78 N. T. 244, which decision the court say is conclusive on this appeal. •It ivas claimed that the judgment embraces more land than was actually occupied by defendant at the time of the commencement of the action, which was simply a quarry on the land. The deed set up by defendant in his answer, under which he claimed, and introduced by him in evidence, conveyed the farm as described in the complaint. No question was raised upon the trial or request made for a finding in regard to that part in excess of the quarry. Held, that without such a finding the point was not presented by the appeal. (Grant v. Morse, 22 N. Y. 323; Phelps v. McDonald, 26 id, 82.) A. Schoonmaker for appellant. John F. VanEtten for respondent. [MAJORITY — Danforth, J.,] Danforth, J., reads for affirmance. All concur. Judgment affirmed.