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Poppenhusen v. Poppenhusen

Supreme Court of New York, Appellate Division

February 23, 1912

CAROLINE S. POPPENHUSEN, Appellant,
v.
CONRAD H. POPPENHUSEN and Others, Respondents, Impleaded with LONG ISLAND RAILROAD COMPANY, Respondent, Appellant.

Page 308

APPEAL by the plaintiff, Caroline S. Poppenhusen, from a judgment of the Supreme Court in favor of the defendant Long Island Railroad Company, entered in the office of the clerk of the county of Queens on the 23d day of September, 1910, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived, and also from an order entered in said clerk's office on the 14th day of October, 1910, denying the plaintiff's motion to strike out certain evidence.

Appeal by the defendant, the Long Island Railroad Company, from that part of the said judgment which dismisses the said defendant's counterclaim.

COUNSEL

Lewis R. Conklin, for the appellant Caroline S. Poppenhusen.

James W. Treadwell [Joseph F. Keany with him on the brief], for the respondent, appellant, Long Island Railroad Company.

Eugene H. Hatch, for the respondents Poppenhusen.

Page 309

THOMAS, J.:

The plaintiff, widow of Herman C. Poppenhusen, whose heirs at law are the defendants, Conrad H., P. Albert and Herman A. Poppenhusen, brought this action for an admeasurement of dower of land in possession of the Long Island Railroad Company, and to recover mesne profits. Defeated in this she has appealed from the judgment against her and an order denying her motion to strike out evidence, while the company has appealed from so much of the judgment in favor of the defendants Poppenhusen as dismisses, with costs, the counterclaim that the heirs convey to the company the land of which there exists a recorded deed to their father, which is alleged by the company to have been conveyed to him in trust for its predecessor.

The plaintiff alleges seizin in her husband at his death, descent in the heirs subject to dower, and possession by the company. The heirs do not deny and make no claim.

The land is situated on Bradford avenue in the former village of Flushing, and on it and other land owned by the company is the railroad station built about the year 1870. The defendant company and companies in privity with it have had possession of the land from the time of the delivery to one of them of a deed dated April 1, 1868. Hence, such possession had existed for nearly forty years before the present action was begun. The land was at a time owned and possessed by one Coxe, whose brother and business agent was Bradford Prince, then a lawyer in Flushing. The lots were by her sold to one Master. Charlick, the president of the New York and Flushing Railroad Company (herein for convenient reference called the first company), employed Prince to purchase the land for the company, and for that purpose furnished him with money. Prince drew the deed executed by Master, but the name of the grantee was not inserted, and upon its execution and delivery by Master it was turned over to Charlick, and on the trial produced from the files of the Long Island Railroad Company or its predecessors, where presumably it had been since 1868.

But the deed, as produced, shows as grantee one Orange Judd, whose intimate relations with several railroad companies

Page 310

here concerned will be later stated. Prince, as agent, received from the railroad company the principal and interest of the mortgage subject to which conveyance was ...


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