Woodhull v. Rosenthal (61 N.Y. 382, 1875)

Dwight, C.

The defendants rely upon a number of propositions which they deem fatal to the plaintiff’s case.

I. They claim that the plaintiff cannot recover, because the sheriff could not deliver possession.

This is a misconception of a well known rule of law that where the property is not, in its own nature, capable jof physical possession, an action of ejectment will not lie. A common example is an easement or other incorporeal hereditament. (Child v. Chappell, 9 N. Y., 246; Rowan v. Kelsey, 18 Barb., 484; C. and St. Law. R. R. Co. v. Valentine, 19 id., 484.) These cases lend no countenance to the idea that land itself cannot be recovered in ejectment because it happens to be inaccessible at the time judgment is entered, or during the trial. If that were the case, should highways be obstructed by a freshet so that the sheriff could not approach the land, no judgment in ejectment could be entered. The legal proceedings would be suspended until the water subsided. Such a conclusion is absurd. The fact is, that the judgment can be rendered wherever the title to land, or a corporeal estate in it, is in controversy. Delivery by the sheriff is a matter arising subsequently, and is an executive act following upon the judicial determination as to the title.

II. The defendants further claim that all title to the property in controversy had passed from the plaintiff when the action was commenced, and, accordingly, that he has no cause of action, against them. Their argument upon this point is, that the plaintiff conveyed to Burt, or to Keyser, the lot on the corner of White and Church streets, of such dimensions that it included 37 White street (as set forth in the statement of facts), with the “ appurtenances.” The description in that case embraced a lot of land with defined boundaries. It was referred to as being on the corner of Church and White streets and composed of parts of lots of designated numbers and as containing, respectively, on the front and rear twenty-five feet, and on the sides seventy-five feet. Such language cannot be held to include adjoining property not described, unless it can be embraced within the word “ appurtenances.” The meaning of this term is now well ascertained by adjudged cases. A thing l