1. A petition presented to a surro-
gate set forth that J. was trustee
under the will of McC.; that the
petitioner was by the terms of the
will entitled to the interest on the
trust fund, which was so invested
as to yield an annual income, of
which at least $337.50 was then in
the hands of the trustee, and that
he refused to pay it over, claiming
that the petitioner had assigned
his interest, which claim, the peti-
tioner averred, was unfounded.
Held, that the petition was suffi
cient to entitle the petitioner under
the Code of Civil Procedure

SICKELS-VOL. XLIX.

(S$ 2803, 2804) to an order for an
accounting. In re McCarter. 558
2. The answer did not deny the va-
lidity or legality of the petitioner's
claim, but set up the pendency of
an action in which the trustee was
plaintiff and the petitioners and
others were defendants, for the
purpose of settling conflicting
claims, alleged by the trustee to
have been made upon the fund and
its income. No proof was given
in support of these allegations.
Held, the facts stated did not in
any way tend to show that the pe-
titioner's claim was of doubtful
validity, or that the action was
necessary; but if this were other-
wise, in the absence of the denial
of validity or legality required by
the Code (§ 2805), the pendency of
the action was immaterial, and
was no bar to an accounting.

ACTION.

Id.

The complaint herein alleged the em-
ployment of defendant as attorney,
etc., and that while so employed he
received the money in question "in
a fiduciary capacity," that the same
had been demanded, but that he
neglected and refused to pay the
same and had converted it to his
own use. Held, that the cause of
action was one ex contractu not ex
delicto. Segelken v. Meyer. 473

ADVERSE POSSESSION.

1. The provision of the Revised
Statutes, declaring a grant of land
void if at the time of delivery
thereof the land shall be in the

83

3. Where the true owner has been dispossessed, if the dispossession terminates within twenty years, the possession will be considered as having returned to him; to defeat his title the adverse possession must be continuous for twenty years. Id.

4. One J. held the legal title to the whole of a highway; S., to whose title plaintiff succeeded, took title, in 1837, to a farm adjoining the highway under a deed which by its terms bounded the lands on the north by the center of the highway; immediately thereafter S. built a fence extending one rod into the highway, along the entire north line of his farm, and he and his successor in title continued to occupy the inclosed strip under claim of title until 1846, when, upon a survey establishing J.'s title to the whole highway the fence was removed back to the south line thereof, and thereafter no part of it was inclosed. From 1867, when plaintiff purchased and took possession, down to 1875, he occupied a strip of land one rod wide adjoining his farm, by plowing, cultivating and mowing it each year. Held, that conceding both of these periods of occupation were hostile in inception and continuous in character and sufficient to initiate a claim to an adverse possession, they did not bar the right of the true owner as there was not a continuous adverse possession for twenty years. Id.

5. During the period between 1846 and 1867, T., plaintiff's predecessor

6.

in title, once a year cut the grass from a small plat of ground in the highway, a row of trees was also planted by him in the highway in 1864, which were within a few years thereafter taken up or destroyed, and he sometimes piled lumber in the highway against his fence. He did not occupy the highway in any other manner. Held, that the evidence failed to establish a claim by adverse possession. Id.

The setting out of trees or the building of a sidewalk in a highway by the owner of adjoining lands, as authorized by the act of 1863 (Chap. 93, Laws of 1863), is not such an occupation as can be made the foundation of a claim to title by adverse possession as against the true owner. ld.

7. A tenant cannot by a disclaimer, or by mere words denying his landlord's title and asserting one of his own, work a forfeiture of his tenancy, or set running an adverse possession. The possession of the tenant and of his grantees and assigns is that of the landlord, and not hostile or adverse; and this is so as to a grantee who has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of tenant, the latter denying any such relation. Whiting v. Edmunds.

309

of a tenant who held under a lease from W., dated in 1823, and running for twenty years. In order to get possession, R. T., who had or claimed a title under a deed from B., employed I. to purchase the lease, which he did with the money of R. T., taking an assignment, however, in his own name. By collusion with I., and without the knowledge of the landlord, R. T. entered into possession, asserting title under the deed from B. The lease, however, was found in his possession, and he made several efforts to buy the W. title. Plaintiff claimed under deeds from the heirs of W. to C., executed in 1858 and 1859. The premises were then in the possession of grantees of G. F. T., who entered under a deed in 1846. It was admitted by defendants that R. T. "and the grantees under him have been in possession * and that defendant is now in possession under that (R. T.'s) claim of title." The trial court refused to submit to the jury the question as to the character of R. T.'s entry into possession, and nonsuited plaintiff. Held error; that if R. T., when he entered in 1824, became the tenant of W., his possession and that of his grantees remained the possession of his landlord not only until the end of the term, but presumably for twenty years thereafter, i. e., until 1863, and so there was no adverse possession at the time of the conveyance to C. making his deed void for champerty; and that, therefore, the question as to the character of R. T.'s possession should have been submitted to the jury. Id.

*

APPEAL.

1. The General Term of the Supreme Court has no authority on appeal to determine the amount of unsettled damages; at least where no facts are found below upon which an estimate as to the true amount can be made. Andrews v. Tyng. 16

2.

Accordingly held, where on trial before a referee in an action for attorney's services wherein the defendant set up a breach of the contract of employment on the part of plaintiffs, and the referee found the breach, but allowed only nominal damages, and where the General Term decided this to be erroneous and that defendant was entitled to substantial damages, that it was error for the General Term to fix the damages; that it only had authority to order a new trial, so that the amount of damages might be determined by a trial court. Id.

3. In an equity action brought to set aside alleged fraudulent conveyances made by a judgment debtor, the defendant is not entitled to a jury trial. The court may frame issues and direct them to be tried before a jury, but this is in its discretion, and its determination is not the subject of review. Wright v. Nostrand.

4.

31

9. It seems, that the party aggrieved must wait until final judgment is entered, when he may either appeal directly to this court (Code of Civil Procedure, § 1336), in which case the appeal will bring up for review only the determination of the General Term, affirming the interlocutory judgment, or he may appeal to the General Term (1350), which appeal will bring up for review only the proceedings after the interlocutory judgment, and in case of affirmance he may appeal to this court, which appeal will present for review all the questions of law involved in the whole case.

Id.

10. It seems also, that where the General Term, on appeal from either the interlocutory or the final judgment, grants a new trial, an appeal

16. Upon motion to dismiss an appeal by a railroad company to the General Term from an order of Special Term confirming the report of commissioners appointed to condemn certain lands under water in the Hudson river, it appeared that under former proceedings the company had obtained possession and begun the construction of an embankment; these proceedings were subsequently annulled and the present proceedings instituted. On application of the company an order was granted allowing it to continue in possession until the final conclusion of the new proceedings, but requiring it to keep open a gap in the embankment for the benefit