
    David S. Paige, Resp’t, v. Edmund E. Waring et al., Ex’rs, App’lts.
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    Adverse possession—Award op damages to “ unknown owners ”—Code op Civil Procedure, § 370.
    In an action to recover an award to “ unknown owners ” of certain lands, which was paid to defendant’s testator, plaintiffs claimed title to the land by adverse possession as well as by deed. Held, that there being some evidence from which the jury could find that the land was “usually cull ivated or improved” and " protected by a substantial inclosure" for more than twenty years preceding the date of the award, the plaintiff’s claim of adverse possess! n was well founded, and he was entitled to recover.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment in favor of the plaintiff.
    
      H. H. Anderson, for app’lts; John E. Burrill, for resp’t.
   Earl, J.

This case has been here once before, (76 N. Y., 463), and the most important legal questions involved were then settled. The action was brought to recover certain awards made to “unknown owners” for the taking of certain land in the city of New York for the opening of Madison avenue, which awards were paid by the city to defendants’ testator, upon his claim to be the owner of the land. Both parties claim the land taken, by title derived from Peter Poillon. His conveyance of the land in the chain of plaintiff’s title was made June 21, 1827, and, if that conveyance had been at once recorded, there is no dispute but that plaintiff’s title to the land and the awards would have been perfect. But the infirmity in his title arises from the fact that that conveyance was not recorded until August 15, 1867. PoiUon’s conveyance of the land in Waring’s chain of title was dated January 29, 1861, and recorded the next day; so that the defendants have the best record title, and, if there were nothing more, their title to the money awarded for the land, and paid to their testator, would have been perfect.

There is no evidence that any of the persons under whom the defendants claim were ever in the possession of the, land, or ever exercised any acts of ownership over the same. But the plaintiff claims that his grantor was in the actual, open, notorious possession of the land, by his tenant, in January, 1861; and hence that, within the rule laid down in Brown v. Volkening (64 N. Y., 76), and other cases, there was constructive notice to Poillon’s grantee, at that time, of the prior unrecorded deed, and of the rights acquired thereunder. He also claims that for more than twenty years before the land was taken by the city, and the awards made, he, and those under whom he claims, were in the actual possession of the land, claiming under the conveyance from Poillon, and hence that his title to the award was perfect on that account.

The persons who knew most about the facts relating to the possession were, at the trial of this action, dead, and hence the evidence as to such possession was not as certain and definite as could be desired. But it was submitted to the jury under instructions as tq the law which we must, in the absence of the charge or any exceptions thereto, assume to have been proper and satisfactory, and their verdict in favor of the plaintiff must be regarded as conclusive, so far as there was any evidence upon which it could be based.

To make out the adverse possession in this case, it was incumbent upon the plaintiff to prove that the land was “usually cultivated or improved,” or that it was “protected by a substantial inclosure.” 2 R. S., 294; Code Pro., § 83; Code Civil Pro., § 370. Here, without going particularly into the evidence, we are satisfied that there was some evidence from which the jury could find that both of the conditions mentioned was satisfied during a period of more than twenty years preceding the date of the awards, and that plaintiff’s claim of adverse possession was therefore well founded.

Without, therefore, determining whether, at the date of the second deed of Poillon, to-wit, January 29, 1861, plaintiff’s grantor was in the open, notorious, and actual possession of the land, within the meaning of the case of Brown v. Volkening, and other cases cited, we are of opinion that, for the reasons stated, the judgment should be affirmed, with costs.

All concur, except Miller, J., absent. 
      
       Affirming 36 Hun, 643, mem
      
     