#### Ann C. Ostrander, Resp’t, *v.*John T. Washburn *et al.,*App'lts.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

Evidence—Boundabies.

In an action for trespass the plaintiff claimed that a white oak stump was the northeast corner of a farm, while the defendant, claiming under one McGinnis, alleged that the true corner was thirty-two feet west of this stump. The lands of the contestants adjoined, and together made the south boundary of the farm of one Myer. The latter testified for plaintiffs that he and McGinnis had divided their division fences, and that he had always "built the west half beginning at the oak and going easterly, and that as to so much of the division fence as was between him and the plaintiff the witness had built- his share of the same, beginning at said oak, and extending westerly. On cross-examination it appeared that the question whether the oak was the dividing point in the north boundaries of the plaintiff, and of the defendant, had never been raised. Held, that the admission of the evidence was improper because the testimony might have misled the jury.

Appeal from a judgment entered upon the verdict of a jury at the trial at the Ulster circuit.

*Peter Cantine,*for app’lts ; *John E. Van Etten,*for resp’t.

Landon, J.

The defendants appeal from a judgment entered upon the verdict of a jury against them. They were charged with cutting trees standing upon the plaintiff’s land, and taking the wood away. The defendants claim under McGinnis, their vendor of the standing trees. The plaintiff and McGinnis own adjoining farms in the town of Saugerties, Ulster county. The determination of the action depends upon the location of the boundary line. Both parties rely upon a deed to plaintiff’s ancestor, given in 1835, for a description of the boundary. The description begins at a pitch pine tree standing in the boundary, and after nineteen courses and distances ends there. The stump of the tree is still standing. The plaintiff claims that a white oak tree standing about 900 feet northerly of the pine tree is the northeast corner of her farm.

The disputed boundary and *locus in quo*depend upon the location of this corner. The surveys given in evidence on the part of the plaintiff make the white oak tree the corner, but the testimony shows that the surveyors adapted their surveys to the corner, and then adjusted the courses and distances given in the deed accordingly. Their testimony tends to support the reliability of their *46surveys. The survey made by the defendants’ surveyor seems to us to be the more reliable. The thirteenth course in the survey runs along a fence which both sides concede to be the line, “to the west side of the stage road leading from Kingston to Saugerties," quoting from the deed. That established line enabled the surveyor to obtain the variation of the needle. Starting from that fixed point on the west side of the stage road, using that variation, following the courses and distances according to the calls of the deed, confirmed by an established line for the length of one intermediate course, he reached the pitch pine tree in due course. This left the disputed corner 82^ feet west of the white oak tree, and gave McG-innis the land in dispute.

Other evidence was given on the part of the plaintiff tending to show the practical recognition of the white oak tree as the corner. The north line of the plaintiff’s farm and the north line of the farm of McG-innis are in a continuous straight line and together form the south boundary of the farm of Edwin Myer. Myer testified in plaintiff’s behalf, notwithstanding defendants’ objection, that he and McGinnis had divided their division fence between them and he, Myer, had for fifty years built the westerly half of it beginning at the white oak in question and extending easterly; he also testified, notwithstanding like objection, that he had built his part of the division fentíe between his land and that of the plaintiff, beginning at the same oak and extending westerly. Upon cross-examination it appeared that the witness had built his part of the division fence between his farm and thé other two farms and that the part he built was on both sides of the oak, and that neither party had ever spoken of the oak as the point of division between them, or as indicating where Myer’s share of the division fence began or ended. Defendants’ counsel moved to strike out his testimony given on the plaintiff’s examination, and the motion was denied.

We think it should have been stricken out. It seemed to make it appear that the oak was a recognized corner between the lands of plaintiff and McG-innis, when in fact there was nothing more than that the witness had built upon both sides of the oak, and that he probably supposed it was the corner between their lands. It was in fact immaterial, but it was likely to mislead the jury.

Judgment reversed, new trial granted, costs to abide the event.

Learned, P. J., and Mayham, J., concur.