
    Second Department,
    November, 1910.
    Henry Arnow, Appellant, v. Carmel Realty Company, Respondent.
    
      Vendor and purchaser ■— title by adverse possession —failure to prove—earnest money.
    
    Appeal by the plaintiff, Henry Arnow, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county, of Richmond on the 6th. day of May, 1909, upon the decision of the court, rendered after a' trial at the Richmond Special Term, dismissing the complaint upon the merits.
   Thomas, J. :

I think that an affirmance of the judgment would not do complete justice in this case. It does not appear that on the final day for closing the title there was any suggestion that the defendant had title hy reason of adverse possession, or that any facts were presented proving the same. In the answer the defendant did not assert such title. So far as appears defendant relied on its record title. The plaintiff brought this action, and before judgment the defendant conveyed the property, putting it beyond its power, although it might show title by adverse possession and receive j udicial sanction of same, to give plaintiff the benefit thereof. I think that the defendant did not on the trial give evidence that it had such title, and I conclude that the plaintiff at least should have the deposit returned. The judgment should be reversed and a new trial granted, costs to abide the event. Woodward and Carr,- JJ., concurred; Jenlts and Burr, JJ., dissented. Judgment reversed and new trial granted, costs to abide the event.  