
    Nathaniel Jarvis, Jr., App’lt, v. Sarah Lynch, as Executrix, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 18, 1895.)
    
    1. Boundaries—Waters.
    A description made by commissioners appointed in a proceeding to acquire land for city purposes, which gives as one of its boundaries the Harlem river, does not necessarily include premises lying between high and low water mark.
    3. Evidence—Title.
    Recitals cf ownership in proceedings by commissioners to appropriate land for city purposes, or to assess damages on property for the expense of -opening streets, do not constitute a judicial determination,, binding upon all parties and their privies, that the persons named have title to the property assessed.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      Anderson Price, for pl’ff ; O liarles E. Miller, for def’t.
   Per Curiam.

This action, which is one of ejectment to re-' cover possession of premises consisting of a block of land in the city of New York, bound by 155th and 156th streets, Eighth avenue, and• Exterior street, along the Harlem river, has been, twice tried. The first trial resulted in a dismissal of the complaint, and the judgment entered thereon was affirmed upon- appeal to this court, upon the ground that it was impossible to determine from the description in the deeds and grants through which plaintiff claimed titled whether they affected the premises in controversy. The evidence satisfactorily establishes that these premises formerly lay between high-water and low-water mark of the Harlem river, and the defendant insists, upon the authority of Mayor, etc., v. Hart, 95 N. Y. 448, that the title thereto did not pass to the freeholders and inhabitants of Harlem by the Nichols patent of 1666, as claimed by the plaintiff, but, instead, that title thereto became vested in the mayor, aldermen, and commonalty of the city of New York by the Dongan charter of 1686; and it may be observed in passing that the argument in that case strongly supports the defendant’s contention, although there is present that opportunity for distinction between the cases which was pointed out by this court on the former appeal. . Passing to the question whether the deeds put in evidence by the plaintiff'located the property with sufficient accuracy to enable a court or jury to determine whether it is described by the words of the complaint, we observe that the plaintiff has not overcome the defects in the proof which were pointed out by this court on the former appeal. Upon this trial he claims title through precisely the same deeds or grants, and none other. Assumiug that the title to the premises in controversy‘passed 'by the Nichols patent of 1666 to the freeholders and inhabitants of Harlem, and that such property can be located with sufficient accuracy in the several mesne conveyances between and including the deed from the freeholders and inhabitants of Harlem to Barent- Waldron and the deed from John Myer to Abraham Myer, in 1743, still the plaintiff falls far short of the proof requisite to maintain his action, for the subsequent conveyances do not contain such a description of the premises in question as make it possible to locate them as a part of the property described in the grants. The plaintiff testified that he received as a part of his muniments of title an unrecorded deed from Abraham Myer to Arent Myer, dated March 21, 1746, and an effort was made to prove it as a lost instrument, and to show that the premises described therein were the same as in the deed •of 1743 from John Myer to Abraham Myer. We have examined the folios to which counsel referred as proof of his assertion that the lost deed was admitted in evidence, and it seems to us not to .sustain his position. It is true that the plaintiff testified that he had had such a deed, and that it was mislaid, and, upon being ■shown a memorandum, he testified that it was copied from his memorandum book, which contained a copy of the deed. The memorandum being handed to him by his counsel with a request that he read it, an objection was interposed by the counsel for the defendant, and the court said: “You have, according to-Mr. Jarvis’ testimony, a copy of the original deed in his record book, still in his possession. Why not bring that down?” This suggestion of the court seems to have been acquiesced in, for the plaintiff at once proceeded to inquire of him with reference to other papers which were subsequently put in evidence, and we have not been able to find that the subject was again referred to. But, if it can be assumed that the testimony elicted from the plaintiff while his counsel vyas attempting to lay a foundation for the introduction of secondary evidence constituted sufficient proof of the instrument as a lost deed, and established that it contained •a description like that in the deed from John to Abraham Myer, then the fact is that from the date of such deed—March, 1746-—• every instrument, whether of will or deed, through which plaintiff ■claims title, was without such a description . as to enable a court or jury to say that the premises in question were described therein. As each of such instruments was referred to on the former appeal, their future consideration is not needful.

The plaintiff introduced in evidence the proceeding for the opening of Eighth avenue, which was confirmed in the year 1816. The commissioners’ report states:

“ That the said Baron Bussing is also seized in fee of and in certain .lands and premises easterly of and adjoining to the last above described piece or parcel of land, which said last-mentioned adjoining lands and premises are situated in the Ninth ward of the said city of New York, and are bound northwesterly in front by the last above described piece or parcel of land, northwesterly by Harlem river, .aforesaid, southeasterly by the center line between the said Eighth avenue and the Seventh avenue, and southwesterly by lands and premises now or lately belonging to the ■above-named Cadwallader D. Golden.”

In considering what value, if any, this evidehce has, it may be •observed :

1. That, in the absence of measurements, it is difficult, to say the least, to determine whether any part of the premises in controversy was included within this description. At some period of time this property was situated between high and low water mark, and the city of New York, prior to the conveyance under which the defendant claims title, claimed to be the owner of all the land between high and low water mark on the Harlem river, under the Dongan charter. So a description made by the commissioners appointed in a proceeding to acquire land for -city purposes, which gives as one of its boundaries the Harlem river, cannot be said to necessarily include premises lying between high and low water mark.

While the effect of such proceedings is to vest in the city the title to lands taken for the purpose of a street, it has no other effect. The commissioners appointed by the court in such cases endeavor to obtain the names of the owners of the property taken ; but, if this cannot be accomplished, the city may nevertheless acquire title to the property upon compliance with the provision of the statute authorizing the making of an award for damages to unknown owners.

The other feature of the proceeding relates to the assessment upon property benefited to defray the expense of the opening of the street. While the names of the owners of the property are usually given, the assessment, nevertheless, is upon the property benefited, not upon the individual. And any suggestion that such action upon the part of the commissioners amounted to a judicial determination, binding upon all parties and privies, that the persons named have title to the property assessed, is too absurd for serious consideration. Id this trial, as on the former one, the plaintiff introduced evidence of alleged acts of possession on the part of Aaron Bussing, for the purpose of proving seisin of plaintiff’s grantors. For that purpose, as was said on the former appeal, the evidence was of no value, in the absence of evidence of title in Bussing. It is also claimed that the evidence of possession introduced on the- part of the plaintiff covered such a period of time as requires a grant to be presumed. We do not understand that it can be given that effect. The premises were never fenced in or cultivated, nor were they ever capable of cultivation, prior to the time when defendant filled in the -property at great labor and expense. It does appear from the testimony of the plaintiff that one of the devisees of Aaron Bussing, during a period of years, occasionally gave permission to parties to cut grass on it. The interviews occurred, according to the plaintiff, at the residence of the devisee, nearly half a mile from the premises in controversy, and when he gave permission for the cutting the uncle pointed towards the river and in the direction of the meadow. How much, if any, of the land in controversy was included in such “ pointing out ” by the uncle, it is not easy to determine. It seems quite clear that the witness had a very indefinite recollection on the subject, for, according to his testimony, the period of time during whiph he knew grass to be cut extended down to 1869, .whereas it further appeared from his testimony that upon his return from a visit to South America, in 1856, he found the property filled in. If it satisfactorily appeared that the cutting of grass was upon the uroperty in question, it would not be of sufficient value to authorize a presumption of a grant Price v. Brown, 101 N. Y. 369. "We do not think the proof on this trial requires any different disposition of the case than was made on the former appeal.

' The exceptions should be overruled, and judgment ordered for the defendant, with costs.  