
    (70 Hun, 459.)
    SILLIMAN v. PAINE et al.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    1. Ejectment—New Trial—Stare Decisis.
    Where a decision in ejectment has not been reversed, on a second trial' under the statute, unless the essential facts have been changed, the first decision must be regarded as stare decisis.
    2. Same—Adverse Possession.
    Where plaintiff in ejectment introduces evidence tending to show adverse possession of the land described in the complaint, he is entitled to go to the jury, though the land involved is not embraced in the description in his deed. ■
    Appeal from circuit court, Rensselaer county.
    Ejectment by Helen A. Silliman against John W. Paine and others. Plaintiff’s complaint was dismissed, and she appeals.
    Reversed.
    For former report, see 1 N. Y. Supp. 75.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Lansing & Cantwell, (James Lansing, of counsel,) for appellant.
    Irving Hayner, (John H. Peck, of counsel,) for respondents.
   MAYHAM, P. J.

Appeal from a judgment entered upon an order of the trial judge, dismissing plaintiff’s complaint, at the-trial. This action has been once before tried, before a referee, who reported in 'favor of the defendants; and on appeal from the judgment entered upon that report the judgment was affirmed by this court, in a well-considered opinion by Justice Landon, reported in 1 N. Y. Supp. 75. That decision has not been reversed, and, unless the essential facts have been changed on this trial so as to lead to a different result, must, we think, be regarded, as stare decisis in this case. It is true, as the plaintiff saw fit to avail herself of the provisions of the statute providing for a new-trial in actions of ejectment on payment of costs, that she is-entitled to a new trial de nova, and to have her case disposed of substantially as if no trial had been previously had; but if, on such new trial, the facts have not been substantially changed, this court should not disregard the light reflected upon the case by the examinations and adjudications of the court on the former-trial. We have examined the evidence on this trial, and do not see that it is essentially changed, as to the location of the land actually embraced in the plaintiff’s deed. Upon that question there ■ seems, now, as on the former trial, a want of evidence fixing any definite starting point from which a survey can be made with sufficient certainty to locate this dividing line, with accuracy, within the narrow margin of 6-¡- inches. Assuming, as we must, that the former decision on that question was correct, we see no change of facts which would change the legal conclusion reached on the-former trial.

But it is insisted by the learned counsel for the appellant that the proof on the second trial clearly establishes in the plaintiff' a 20 years’ adverse possession of this strip of land, and that, therefore, the plaintiff is entitled to recover, even though the proof fails •to show that it is embraced within the description in the plaintiff’s deed, or covered by the allegations of her complaint. The plaintiff makes no claim in her complaint for land not embraced in lot Uo. 123, and seeks only to recover a part of that lot bounded on the north line of that lot. That claim is, therefore, inconsistent with a claim to recover lands lying northerly of that line. But the complaint does specifically describe the piece of land sought to be recovered, by boundaries, from which, if the plaintiff should recover, the locus in quo could be taken possession of by the-sheriff, and the plaintiff put in possession. It is a strip 6^ inches-wide from front to rear, parallel with the north line of the lot, and extending 28 feet from Second street to the alley. If, therefore, the proof in this case establishes an adverse possession in the plaintiff in this strip, within the provisions of sections 370-372' of the Code, we think, under this complaint, she might recover.. Upon this branch of the case there was evidence from which the jury might have found that these premises were held by plaintiff' and her grantors, adversely, for more than 50 years before the new barn was constructed on the defendant’s lot, in 1864, provided they found that the same was so inclosed and occupied as to create an adverse possession, within the provisions of sections 370-372 of :-the Code of Civil Procedure. I think that within the case of Barnes v. Light, 116 N. Y. 34, 22 N. E. Rep. 441, the case, upon ■this branch, should have been submitted to the jury. In that •case it was held that an action of ejectment can be maintained rupon an adverse possession, even against the true owner, and ■ several authorities are referred to, to sustain that position. As the plaintiff did not succeed in affirmatively proving that her deed ■ covered this land, and her claim of title was not, therefore, founded upon a written instrument, it was incumbent on her to show an ractual, continued occupation, under a claim of title, for more than "20 years, in herself or her grantor, evidenced by a continued substantial inclosure. Code Civil Proc. §§ 370-372, supra. Upon this •question there was evidence which, we think, raised a question of fact which should have been submitted to the jury. Judgment reversed, and a new trial ordered; costs to abide the event. All • concur.  