John Gross et al., Respondents, v. Arthur Welwood et al., Appellants

John Gross et al., Respondents, v. Arthur Welwood et al., Appellants. (Argued June 28, 1882; decided October 10, 1882.) This was an action of ejectment to recover certain land in the city of Brooklyn. Plaintiff claimed title through John Gross, who was conceded to be the former owner. Defendants claimed through one Bergen, first, as mortgagee in possession under a mortgage executed by said Gross ; and second, as purchaser of a tax lease executed by the city to Bergen. The court held that there could be no adverse title acquired under either, and it was for defendants to show that they had a right to their possession. (Bedell v. Shaw, 59 N. Y. 46.) The tax lease was void, and defendants appear to have abandoned on the trial all claim under it. The "evidence as to possession by Bergen was conflicting. The court say, “ it was, therefore, an issue which the jury alone could determine. It was for them to say whether Bergen was in fact in possession, and if so, the character of that possession, and whether lawfully acquired or not. (Trimm v. Marsh, 54 N. Y. 599; 13 Am. Rep. 623; Mad. Ave. Church v. Oliver St. Bap. Church, 73 N. Y. 94); and as the verdict established that defendants’ possession was not taken under the mortgage, plaintiffs were entitled to recover.” John H. Bergen for appellants. William J. Groynor for respondents. [MAJORITY — Danforth, J.,] Danforth, J., reads for affirmance, with costs. All concur. Judgment affirmed.