Hymes v. Esty , 43 N.Y. Sup. Ct. 147 ( 1885 )

Follett, J.:

It is not claimed that the title to any part of the land conveyed has failed, but that the village of Ithaca has opened to its legal width and worked a public street which had been laid out prior to-the conveyance by the defendants’ testator, using for this purpose a strip of the land conveyed about twelve feet in width. The existence of a public street or highway, legally, laid out and openly traveled, upon land conveyed with a covenant of warranty, does not, if the public have but an easement, amount to a breach of warranty. (Whitbeck v. Cook, 15 Johns, 483; Wilson v. Cochran, 46 Pa., 229.) If the soil of a street or highway is appropriated or used for other purposes, the owner may maintain trespass or ejectment against the intruder. (Goodtitle v. Alker, 1 Burr, 133; Cortelyou v. Van Brundt, 2 Johns., 357; Jackson v. Hathaway 15 id., 447.) In this 'State, opening a public street or highway to its legal width, or using it as a street, in not deemed a sufficient eviction to enable the owner to maintain an action against his grantor for the breach of a covenant of warranty. Whether the existence of a public street or highway, is a breach of a covenant against incumbrances, is a question upon which the decisions of the various States do not agree. (3 Wash. R. P. [4th ed.J, 460, 462.)

The sole foundation of this action is the judgment in the case of -the village of Ithaca against this plaintiff, the' judgmeniroll in -which case was introduced in evidence by the plaintiff, by which it ■appears that the land from which the plaintiff claims to have been evicted, was a legal public street at the date of the grant of defendants’ testator to Todd, and also at the date of the grant of Todd to ■the plaintiff. The plaintiff cannot use this judgment as a verity so far as it tends to establish his cause of action, and then turn and treat it as a falsity, subject to be contradicted and overthrown by oral ■evidence in so far as the findings upon which it rests are found unfavorable. The judgment-roll which the plaintiff invokes to establish his cause of action, destroys it.

The order granting a new trial is affirmed, with costs to abide the event.

Hardin, P. J., concurred; Poardman, J., not voting.

•Order granting new trial affirmed, with costs to abide the event.