Opinion
May, 1907.
Peckham, Miller Strong (Charles H. Strong, of counsel), for plaintiffs.
Charles A. Gardiner (Sherrill Babcock, of counsel), for defendants.
The premises in suit were purchased on April 1, 1850, by one Michael Goggin, who died on November 8, 1865, intestate, seized of the same, and leaving him surviving a widow, who died on July 1, 1901, and four children, viz.: Jane, born March 20, 1846; John, born July 2, 1854; Elizabeth, born June 4, 1856, and Matthew M., born May 19, 1864, all of whom, except the plaintiff Matthew M., died after the elevated railroad was completed and began operations in June, 1878. The defendants' claim to title by prescription is sought to be defeated by proof of the parol assignment or admeasurement by the said children to their mother of her dower in the premises. Assuming, as contended for by the plaintiffs, that by such parol assignment a freehold estate in the premises was created (Elmendorf v. Lockwood, 57 N.Y. 322, 324), such estate could not operate to defeat the defense of prescription if otherwise established by the evidence. The widow could have maintained an action to recover rental damages (Muller v. Manhattan R. Co., 53 Misc. 133, and cases there cited), and the remaindermen, notwithstanding such right of action, could have instituted an action to restrain the maintenance and operation of the railroad and for damages. Muller v. Manhattan R. Co., supra, and citations. The latter's cause of action first accrued in June, 1878, when the defendants' predecessors in interest completed the elevated railroad and began to operate it, and it is plain that, with the exception of the plaintiff Matthew M. Goggin, the rights of all the said children, as well as of those who succeeded to their respective shares in the property, have been barred. Muller v. Manhattan R. Co., supra. The testimony relative to the assignment of dower was taken subject to a motion to strike it out, which the defendants renewed at the close of the entire testimony, and decision was reserved. The defendants, by their thirty-sixth request to find on the facts, have now asked me to find that there was a parol admeasurement of the dower estate to the widow, which I have done. In view of such finding I have concluded to deny the motion to strike out. The various matters relied on by the plaintiffs to avoid the defendants' claim to title by prescription as against plaintiffs, other than the plaintiff Matthew M. Goggin, have not, in my opinion, been established. I further find that the plaintiff Matthew M. Goggin is entitled to only one undivided fourth share in the premises, and I fix his fee damage at $600, and award him judgment accordingly, with costs and an extra allowance of $30. I find, furthermore, that no rental damage has been suffered. All other contested questions are disposed of as indicated upon the margin of the proposed findings of fact and conclusions of law submitted by the respective parties. Submit for signature an engrossed copy of the decision, with proof of service.
Judgment accordingly.