Opinion
November 27, 1961
In an action to declare void and to cancel of record two deeds, made by the decedent and recorded by defendants, conveying certain farm land in Dutchess County, and to recover damages for the value of defendants' use and occupancy of such land, the defendants appeal from a judgment of the Supreme Court, Kings County, rendered April 19, 1961, upon the decision of the court after a nonjury trial. The judgment directed the cancellation of a deed recorded on October 7, 1959 to the so-called cottage house and tenant house lot of the subject premises; the cancellation of a deed recorded on April 6, 1960 to the entire premises; and the execution and delivery of a deed of reconveyance to the entire premises by the defendants to the plaintiff individually and to the defendant Charles W. Philipbar, Jr., as tenants in common. The judgment also awarded to the plaintiff, as executrix of the estate of the decedent, the sum of $2,600 in damages representing the fair and reasonable value of defendants' occupancy of the entire premises from March 1, 1960 through March, 1961. Judgment modified on the law and the facts: (1) by striking out the fifth decretal paragraph awarding $2,600 damages to the plaintiff, in her capacity as executrix, for defendants' said use and occupancy; and (2) by substituting therefor a decretal paragraph dismissing on the merits the third cause of action in the complaint to recover damages for such use and occupancy. As so modified, the judgment is affirmed, with costs to plaintiff individually. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the record is barren of any proof that the plaintiff, either as an individual or as executrix, was ousted from the premises by defendants or either of them. Nor did the learned Trial Justice make any finding to such effect. In the absence of such proof, plaintiff as a tenant in common, may not recover from defendants the value of their use and occupation ( Matter of Limberg, 281 N.Y. 463; Kullman v. Wyrtzen, 266 App. Div. 791, 266 App. Div. 802). In any event, the award of damages as made, was to the plaintiff in her capacity as executrix, but her right to possession of the premises and to damages for ouster therefrom, lies in her individual capacity as a tenant in common, a status affirmed in the fourth decretal paragraph of the judgment and in the form of the reconveyance deed annexed thereto. Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur.