
    ROBY v. YATES.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Abandonment of Easement—Right of Way.
    Where a railroad company ceases to use as its right of way land which it had appropriated for that purpose, and leases it to a person who takes exclusive possession, the company thereby abandons its easement, and the land reverts to the original owner free from the easement.
    •Exceptions from circuit court, Monroe county.
    Action by Sidney B. Boby against Arthur G. Tates. Defendant moves for a new trial on exceptions directed to be heard at the general term in the first instance, after verdict directed for plaintiff at circuit.
    Motion denied.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBEB, and HAIGHT, JJ.
    William F. Cogswell, for plaintiff.
    Albert H. Harris, for defendant.
   LEWIS, J.

This action was brought to recover from the defend-

ant the possession of real estate in the city of Bochester, which he held as tenant under a lease from the New York Central & Hudson Biver Bailroad Company. The property is the same as that in question in an action brought by this plaintiff against said railroad company, in which the plaintiff had judgment, and which judgment was affirmed by this court, and which will be found reported in 20 N. Y. Supp. 551. The plaintiff, concededly, is the owner in fee of the land. All the rights the defendant claims to have in the property he got by the lease from the railroad company mentioned. All the interest the railroad company ever had in the premises was the right to their use for railroad purposes. This court held in the action against the railroad company, above mentioned, that it forfeited and surrendered all its rights and interest in the property to the plaintiff, by giving to the defendant the lease under which he now claims to hold the property. The material evidence was the same in both cases, and the same question is presented for our decision as was presented in the railroad case. We do not see that the defendant’s case was in any way prejudiced by receiving in evidence the judgment roll in the railroad action, even if, as is contended by the defendant, it was not material evidence, for plaintiff had fully made out his case with-z out that record. The defendant’s motion for a new trial should be denied, with costs, and judgment should be ordered for the plaintiff upon the verdict. All concur.  