
    Elizabeth Greenleaf et al., App’lts, v. The Brooklyn, Flatbush & Coney Island Railroad Co. et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Appeal—Peo poema affibmance.
    ' Where it is not entirely clear that the contention of the appellants on a second appeal rightly interprets the opinion of the court of appeals on fhe former appeal, the judgment should be affirmed and the question left for the determination of the court of appeals.
    Appeal from judgment in favor of defendants in an action of ejectment.
    On a former appeal a judgment in favor of plaintiffs was reversed by the court of appeals, and a new trial granted.
    
      Williams & Ashley (Frederic A. Ward and Mornay Williams, of counsel), for app’lts ; Thomas E. Pearsall, for adjoining owners ; William C. Dewitt, for resp’ts.
   Dykman, J.

The parties to this action differ in respect to the decision of the court of appeals when the case was there last.

According to the understanding of the defendant the court of appeals overthrew the proposition that the judgment in partition imported seizin of the land, while the plaintiffs contend that the opinion of the court of appeals sustained the decision of the general term respecting the legal effect of that judgment and the deeds executed in pursuance thereof; and held that as to the judgment and deeds in view of their age it was unnecessary to show possession.

The opinion of the court of appeals states that the authenticity of the judgment was established by the record and was admissible in evidence, and that it was usually impossible to prove an ancient possession of property by living witnesses, and when a deed forming part of a chain of title is so ancient that there can be no person living who can testify to acts of ownership by the grantor or grantee it may be received in evidence without such proof.

Then it contains this language, “while under this rule the judgment in partition and the subsequent deed to John Emmons were admissible in evidence without proof of contemporaneous possession of the land by the parties to the judgment and deed, yet they are not sufficient evidence of title of one who claims under them through mesne conveyances to recover in ejectment without showing some subsequent or modern possession by the parties who have received later deeds which go to make up plaintiff’s chain of title.”

Understanding this last clause to specify a requirement which might be supplied upon another trial, the plaintiffs upon the trial introduced testimony to show that the land in question was so situated as to render any use or occupation thereof impossible.

It was a sand lot .lying upon the shore of the ocean and destitute of anything useful. It could not be utilized for access to ■the water because the surf beat upon the beach so as to prevent ■the launching or boats, the sand was not salable or useful there, and there was no grass or timber to cut.

There was a concession, also, that apart from the possession of the defendant the premises have always been vacant and actually unoccupied.

Therefore, the plaintiffs now contend that with the new testimony supplemented by the principle of law which requires courts to consider the true owner as constructively in possession of the lands to which he holds title, unless they are in actual hostile occupation of another under a claim of title, Bliss v. Johnson, 94 N. Y., 235, they have made a case which entitles them to a judgment in their favor within the decision of the court of appeals.

These views are in accordance with the decision of this general term, but we are not entirely clear that they rightly interpret the opinion of the court of appeals, and as the case must go there again, we think it wise to let it go directly upon a judgment of affirmance.

We have said nothing upon the question of location, because we think it unnecessary to do so, but we are prepared to adhere to our former decision that' the premises are properly located. In fact, the concession upon the trial respecting the possession substantially admits that the defendant is in possession of the premises, and if they are so, then they are located.

However, as we have said, we think the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  