App. Div. 239]

Second Department, June, 1921.

lant was apprehended he was promptly locked up, and his fellow-officers, including the precinct captain, are witnesses for the prosecution. Such facts suggest a personal animus, which the defense has emphasized, and is one of the considerations moving the majority for reversal.

This precise circumstance, that suggests contrivance on the part of the people's witnesses, however, justifies what would otherwise be a technical error in admitting evidence. Hostility from the other officials may give a coloring of testimony, and even lead one to ask if the narrative of the seaman, Nels Anderson, was not largely a product of suggestion leading him to make out a case against an unpopular fellow-officer. When such discredit is attempted, it is right to show the consistency of the people's witness, by earlier statements before he had become subject to any of these influences. (People v. Bertlini, 218 N. Y. 584.) In view of this acknowledged principle, I cannot regard it as error to receive evidence of Anderson's original identification, although at a stage of the trial before Anderson had been sought to be discredited. In the Jung Hing case the court recognized the exception where the witness is." under the imputation that his story is a recent fabrication." (212 N. Y. 402.) The propriety of this ruling must be tested by the trial as a whole, not by an accidental order of proof which is in the discretion of the trial court. (People v. Barnes, 202 N. Y. 77.) Hence in my view there was no error in receiving testimony to the original identification.

This entire case leaves no satisfactory ground to substitute the findings of this court, which reviews upon a printed record, for that of the jurors who saw and heard the witnesses. The testimony of appellant's supporting witness Cahill, in my view, was most damaging; since the narrative of his aimless saunterings with Russell at three A. M. in a November rain storm strains credulity. The issue of identification is one of fact, and no adequate ground is shown to reject the jury's finding. (People v. Cohen, 223 N. Y. 406, 423.)

Allowing Police Sergeant Rourke to testify to the declarations of Anderson at four A. M. that morning, when first brought to the police station, is claimed to be error. No identification had then taken place. Its importance was that at the first moment Anderson had made a complaint. He stated that he

Second Department, June, 1921.

[Vol. 197 had been robbed and described the robber. The objection then raised was that defendant was not present when this complaint was received an objection that misunderstood the grounds for its admission. It is not necessary to fall back on the rule that in rape, offenses of larceny and such crimes, the fact of an early and prompt complaint by the victim is relevant. (Wigmore Ev. § 1142; Stephens Dig. Ev. art. 8.) A Finnish seaman telling of his robbery by an officer in uniform may properly fall under the exception, by which a prior consistent statement is "receivable to repel the suggestion of recent contrivance, upon a general principle applicable to all witnesses." (Wigmore, § 1762.) These are not objective facts, but merely declarations manifesting a state and attitude of mind, and are, therefore, exceptions to the hearsay rule. (1 Greenl. Ev. § 123.) Hence the objection made that defendant was not present was properly overruled. As a whole, the trial was fair to appellant, although his counsel sought to call Anderson a Bolshevist.

With no good exception and nowhere any substantial error, I cannot vote to reverse, much as I share in the natural reluctance to condemn one of the city police.

JAYCOX, J., concurs.

Judgment of conviction reversed upon reargument, and new trial granted.

JAMES MCKAY, Respondent, v. IDA A. NICHOLS, Appellant.

Second Department, June 10, 1921.

Ejectment verdict not specifying estate in property recovered informal but not defective - Code of Civil Procedure, § 1519, construed when judgment not describing property is not defecplaintiff entitled to costs though partly unsuccessdefendant not entitled to costs on separate issue - equity rule as to costs not applicable.

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In an action of ejectment in which each side claimed an estate in fee, the defendant also relying on the defense of adverse possession, the verdict of the jury that " The defendant is entitled to the land upon which the house stands and the plaintiff is entitled to the land back of the house along the fence" is informal but not fatally defective.

App. Div. 246]

Second Department, June, 1921.

While the jury might have been sent back and so have made a more definite finding, especially as to the rear part by the fence, in conformity with the requirement of section 1519 of the Code of Civil Procedure that the verdict shall" specify the estate of the plaintiff in the property recovered," this was not indispensable.

The judgment, therefore, that defendant is "entitled to

that

portion of the land in controversy upon which the dwelling house of the defendant stands," which was entered upon the aforesaid verdict, is not defective.

Though the plaintiff was in part unsuccessful, he is entitled to full costs. The defendant is not entitled to costs on a separate issue relating to the boundary line, since she did not maintain her claim to a full boundary. While the complaint concluded with a prayer for equitable relief, the rules in equity as to costs are not applicable, since the case was tried as an ejectment action.

APPEAL by the defendant, Ida A. Nichols, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of November, 1919, on the verdict of a jury; also from parts of said judgment, as resettled, entered in said clerk's office on the 24th day of February, 1920; also from an order entered in said clerk's office on the 19th day of November, 1919, vacating a judgment entered in said clerk's office on the 21st day of October, 1919, and also from an order entered in said clerk's office on the 25th day of October, 1919, denying defendant's motion for a new trial made upon the minutes.

The litigation is over a disputed boundary line between two residence properties on South Broadway in Tarrytown. Beside asking a declaration of title and possession up to a line that passed through about four inches of defendant's house and even more of the yard in the rear, the complaint asked injunctive relief for the removal of encroachments.

Briggs & Griffin [Joseph B. Thompson of counsel], for the appellant.

David Ashworth [Humphrey J. Lynch of counsel], for the respondent.

PUTNAM, J.:

The verdict as originally entered was: "The defendant is entitled to the land upon which the house stands and the plaintiff is entitled to the land back of the house along the fence." After denial of a motion for a new trial, the original

Second Department, June, 1921.

[Vol. 197 judgment was entered. But this was later resettled so as to adjudge to the defendant the land beneath her house, and to plaintiff the gore in the rear by the back fence, these last being described by surveyed lines and as containing twenty-eight and seven-tenths square feet. Plaintiff also taxed full costs. The first question arises on the regularity of this verdict and the judgment as thereon entered, in view of section 1519 of the Code of Civil Procedure, that the verdict "specify the estate of the plaintiff in the property recovered." . While the jury might have been sent back and so have made a more definite finding, especially as to the rear part by the fence, this was not indispensable.* Here was no question of the respective estates or interests. Each side claimed an estate in fee, the defendant also relying on the defense of adverse possession. The later addition to the Nichols house built in 1892 was set on original foundations which had stood unchanged in site for many years before 1892. Therefore, judgment could properly be entered upon this informal, but plain verdict, which in popular speech settled these differences and validated defendant's building line. As finally resettled, the judgment declared defendant "entitled to that portion of the land in controversy on which the dwelling house of the defendant stands," which is better than to bound this irregular four-inch strip by surveyor's courses. It was certain, and sufficient for all practical purposes. (19 C. J. Ejectment," § 287.) The judgment as entered was not defective.

* * *

Although plaintiff was in part unsuccessful, the recovery rightly carried costs. (Code Civ. Proc. § 3228.) While a defendant in ejectment may be awarded costs on a separate issue (Code Civ. Proc. § 3234), this is not such a case, since defendant did not maintain her claim to a full boundary across, so as to be entitled to costs on this issue. (19 C. J. 1231, § 347.)

While the complaint concluded with a prayer for equitable relief, the cause was not so treated, but was tried as an eject

*Rule 241 of the new Rules of Civil Practice has inserted the words specify "in writing" the estate of the plaintiff in the property recovered, etc., but is a new requirement.-[NOTE BY THE COURT.

App. Div. 249]

Second Department, June, 1921.

ment action; hence, defendant cannot urge the rules in equity as to costs.

I advise, therefore, that the judgment and orders appealed from be affirmed, with costs.

Present- BLACKMAR, P. J., MILLS, RICH, PUTNAM and JAYCOX, JJ.

Judgment and orders unanimously affirmed, with costs.

JENNIE LAURA J. STARKE-BELKNAP, Respondent, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

Second Department, June 10, 1921.

Ejectment colonial land grant rule of stare decisis observed grant construed to include land under bays and coves in Hudson river grant, though to individual, not strictly construed.

In construing colonial land grants the rule of stare decisis will be faithfully observed, since more than private rights are often concerned. The terms of a colonial land grant, including "in the said Northerly Line all Meadows Marshes Coves Bayes and Necks of Land and Peninsula's that are adjoyning or extending into Hudsons River within the Bounds of the said Line," and which grants "fishing in Hudson's river, so far as the bounds of the said lands extends upon the same," aptly express a boundary along the necks or points of land so as to include bays and coves as part of the grant.

Said grant, though to an individual, should be liberally construed in favor of the grantee.

APPEAL by the defendant, New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of July, 1918, upon the decision of the court rendered after a trial at the Rockland Special Term in an action of ejectment in which plaintiff was adjudged owner in fee of the premises set forth in the complaint, with $6,088.18 as damages for withholding the property.

The complaint described two parcels, one to the east and the other to the west of defendant's railroad tracks along the shore