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Ludlow v. Rector, Church Wardens & Vestrymen of St. John's Church

207 N.Y. 689 Court N.Y. Decision date 1913-01-28 English

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p. 689
Mary McLean Ludlow, Respondent, v. The Rector, Church Wardens and Vestrymen of St. John’s Church in the Town of Islip, Appellant.

Headnote

Ludlow v. Rector, etc., St. John's Church, 144 App. Div. 207 , reversed.
(Argued January 14, 1913;
decided January 28, 1913.)
Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 7, 1911, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial in an action to determine title to real property.
Augustus Van Wyck, Timothy M. Griffing and Joseph Wood for appellant.
Joseph M. Belford and Robert J. Fox for respondent.

Without entering upon a discussion of the other questions presented on this appeal, we reach the conclusion that the order appealed from must be reversed and the judgment of the Special Term affirmed for the following reason:

In order to maintain this action it was incumbent on the plaintiff to establish that she had been in possession of the real property involved in the "action for at least a year before the commencement of her action. Her allegation in the complaint to this effect was denied by the defendant, and the court at Special Term refused to find as requested by her that she had thus been in possession. Under the

p. 690
provisions of the Code, as it existed at the time, it must be assumed that the reversal by the Appellate Division was upon questions of law and not of fact. Especially, in view of the peculiar nature of the property involved in this action, it cannot be said, as matter of law, that the plaintiff was in possession of the premises as required by the Code, and, therefore, under the refusal of the trial court to find as requested, she has failed to establish this fact essential to her recovery.

The. order and judgment of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in both courts.

Cullen, Ch. J., Werner, Willard Bartlett, Hiscock, Chase, Collin and Hogan, JJ., concur.

Order reversed, etc.

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