Town of North Hempstead, Respondent, v. Rudolph Oelsner, Appellant

Town of North Hempstead, Respondent, v. Rudolph Oelsner, Appellant. Second Department, January 19, 1912. Costs — extra allowance — ejectment—review of discretion. Where an action of ejectment involved difficult and extraordinary questions of fact, the research and examination of ancient documents, records and histories of the seventeenth century and the production by the plaintiff of more than seventy exhibits, an order granting the plaintiff an extra allowance of costs will not be disturbed on appeal. Such an order is discretionary and the exercise of discretion is reviewable only for abuse thereof. Appeal by the defendant, Rudolph Oelsner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 11th day of May, 1910, upon the verdict of a jury, with notice of an intention to bring up for review an order entered in said clerk’s office on the 18th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 26th day of "April, 1910, granting plaintiff’s motion for an extra allowance. Clarence G. Galston [Arthur Watson with him on the brief], for the appellant. M. Linn Bruce [John J. Graham and George B. Stoddard with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This appeal is from a judgment in favor of the plaintiff, and from an order denying his motion for a new trial, in an action of ejectment. The appeal also brings up for review an order granting the plaintiff an extra allowance of costs. The premises in dispute consist of about nine acres of wild and uncultivated land, known as Bar or Barrow Beach, jutting out from the mainland on ■ the west side of Hempstead Harbor a distance of about one-third of a mile. The defendant owns 276 acres of upland separated from this beach by a highway. He admits that he is in possession of the premises; that he refuses to deliver possession thereof to the plaintiff, and asserts that he is the owner of .the fee under a written instrument, and also asserts title by adverse possession. It is the contention of the plaintiff that; the land in dispute is within the boundaries of what is known as the Kieft patent granted by Governor-General Kieft on November 16, 1644, to the original town of Hempstead, and the subsequent confirming patents granted by English Governors in 1667 and 1685. In 1784 the original town of .Hempstead, was divided into two •towns, North Hempstead and South Hempstead, and under the provisions of the Act of Separation (Laws of 1784, chap. 21) ' all rights and property of the original town of Hempstead, lying within the bounds of North Hempstead, passed to it. (Town of North Hempstead v. Thompson, 8 N. Y. St. Repr. 901; affd. without opinion, 115 N. Y. 635; North Hempstead v. Hemp-stead, 2 Wend. 109.) The rights of the parties depending upon the location of indefinite boundary lines contained in patents and ancient deeds, the question of such location was one of fact for the jury. (Cochran v. Smith, 73 Hun, 597; Gilmartin v. Buchanan, 134 App. Div. 587.) The issues. involved were submitted by the learned trial court under a charge so fair and free from error that no exceptions were taken by either party. The jury resolved all of the questions of fact in favor of the plaintiff, and the evidence is sufficient to sustain théir verdict. The record discloses ho errors in the reception or exclusion of testimony of sufficient gravity to require the reversal of the judgment. I think that the conclusion of the learned trial court that the action was a difficult and extraordinary one authorizing an additional allowance, is sound and should stand. The questions of fact were both difficult and extraordinary, involving the careful research and examination of ancient documents, records and histories of the seventeenth century and the production by plaintiff of more than seventy exhibits, which of itself, irrespective of the questions of law involved, is sufficient to justify an allowance. (American Fruit Product Co. v. Ward, 113 App. Div. 319; affd. without opinion, 190 N. Y. 533.) It was within the discretion of the trial court to grant the allowance, and the exercise of such discretion is reviewable only for abuse (Rowe v. Granger, 118 App. Div. 459; Johnston v. Mut. Reserve Life Ins. Co., 45 Misc. Rep. 316; affd. without opinion, 110 App. Div. 888), and the order must stand. The judgment and orders should be affirmed, with costs. Jenks,- P. J., Hirschberg, Carr and Woodward, JJ., concurred. Judgment and orders affirmed, with costs.