Opinion
December, 1932.
Present — Lazansky, P.J., Kapper, Hagarty, Carswell and Davis, JJ.
Judgment unanimously affirmed, with costs. If the parties cannot agree, defendants may move to apply at the foot of the judgment to have damages awarded in lieu of the direction to remove the shingles. Mere sequence of possession in several grantors is insufficient in the absence of credible proof or testimony of an intent on the part of the several grantors to convey to the several grantees the land not expressly included in each description in the several conveyances. ( Smith v. Reich, 80 Hun, 287; affd. on opinion below, 151 N.Y. 642.) There was such proof in Belotti v. Bickhardt ( 228 N.Y. 296) as distinguished that case from the line of cases of which Smith v. Reich ( supra) is typical. That case did not concern vacant land but concerned a considerable portion of a substantial structure. Here during the twenty-year period a mere vacant strip is involved except a small section of an unsubstantial shack or shed on the rear of the property. Moreover, the testimony amply sustains the findings of the trial court that each successive grantor did not intend to convey to his respective grantee anything other than the plot contained within the description by metes and bounds in the respective deeds.