
    ARNOW v. CARMEL REALTY CO.
    (Supreme Court, Appellate Division, Second Department.
    November 18, 1910.)
    Appeal from Special Term, Richmond County. Action by Henry Arnow against Carmel Realty Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
    Julius Fischer (James Chambers and Charles Chambers, on the brief), for appellant. Max Monfried (Aaron A. Feinberg, on the brief), for respondent.
   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 by 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 judicial 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., concur. JENKS and BURR, JJ., dissent.  