Opinion
October 18, 1943.
In an action to recover certain real property, enjoin continuing trespasses by defendants, and recover damages for the wrongful use of plaintiffs' property, judgment dismissing the complaint and the counterclaim reversed on the law and a new trial granted, with costs to appellants to abide the event. For the purpose of a new trial, all findings of fact and conclusions of law are reversed and disapproved. The complaint was dismissed upon the ground that plaintiffs did not have title to the disputed property. This finding was based upon the Special Term's holding that a 1904 deed from one John Claflin and his wife to one McCrum conveyed title to the strip of land in question, and that at the time of the execution of a subsequent quitclaim deed in 1917 from Claflin to Lockwood and Coffin, under which plaintiffs claim through mesne conveyances, the grantor had nothing to convey. This was error. The 1904 deed transferred title only to the lots enumerated therein. Concededly, the disputed strip was not a part of those lots. The reference in the deed to rights under the easement agreement of 1901 did not operate as a conveyance of the fee of the strip which was the subject of that agreement. ( Ogden v. Jennings, 62 N.Y. 526; City of Geneva v. Henson, 195 N.Y. 447.) The foreclosure action did not affect the title, for the mortgage foreclosed did not include the disputed parcel. Upon the record before us, title to the strip of land involved herein was in the plaintiffs. Also, dedication as a public street was not established. ( Niagara Falls Suspension Bridge Co. v. Bachman, 66 N.Y. 261.) Close, P.J., Hagarty, Carswell, Taylor and Lewis, JJ., concur.