Opinion
February 21, 1919.
Charles F. Dalton, for the appellants.
Frank Leo Ryan [ Judson G. Wells with him on the brief], for the respondents.
While the improvements on these lots did not go as far as those by a like purchaser in Italian Savings Bank v. Le Grange ( 169 App. Div. 120), the erection of a wooden signboard on a post in a conspicuous part of the land, reading: "No trespassing, Grant J. Kunze, 597 Prospect Avenue, New York City," was a direct assertion of occupation, and a public notice of a claim of ownership. The court has found such sign to have been maintained continuously from 1907 to 1915, when it was replaced by another sign, with the same name, but the address changed to his new residence.
Against this was testimony by Eugene Medinack that about the date of this 1911 mortgage to Rosenzweig which purported to cover forty-three or forty-five lots, including the two sold to plaintiffs, he saw no such sign or any cultivation; that he walked over all these forty-three lots and located them by pacing off distances from the corners to the particular parcels.
The court, however, refused to make any negative finding on such evidence. No ground is shown to question such determination. The testimony of Mr. Taylor to having driven over the property and that he saw no sign nor the slightest evidence of cultivation, is also somewhat vague, when we consider the number and extent of the lots then mortgaged. The proof that plaintiffs paid taxes, and made such payments to Mr. Taylor, as supervisor of the town, stands uncontradicted.
This November mortgage followed a similar one by the same Le Grange to the Italian Savings Bank in July, 1911, and carried with it a duty of inquiry regarding the land operations of such a borrower, whose business of installment lot sales was well known. The finding that this $9,000 mortgage was taken with notice of the plaintiffs' rights is well supported.
The question of the jurisdiction over Egan, the non-resident grantee from Rosenzweig, is not before us, since Egan is in default, from which there is no appeal.
The judgment is, therefore, affirmed, with costs.
JENKS, P.J., PUTNAM, BLACKMAR, KELLY and JAYCOX, JJ., concurred.
Judgment affirmed, with costs.