Opinion
June 28, 1961
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Halpern, McClusky and Henry, JJ.
Judgment and order unanimously reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. Memorandum: The trial court correctly charged the jury that if it found that the plaintiff was not entitled to possession of the real property, the verdict should be no cause of action. The verdict on special questions which found that the plaintiff was not entitled to possession but awarded damages of $7,000 was clearly inconsistent and the defendant's motion to set aside should have been granted.