
    GREENLEAF et al. v. BROOKLYN, F. & C. I. RY. CO. et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Appeal—Affirmance by General Term.
    Where the parties to an action construe differently an opinion oí the court of appeals on a former appeal, and it is not entirely clear that the views of plaintiffs, though in accordance with the decision of the general term at a former trial, are supported by the opinion of the court of appeals, and where the case will undoubtedly be carried again to the court of appeals, a judgment for defendants will be affirmed.
    Appeal from special term, Kings county.
    Action originally brought by Charles H. Greenleaf and James S. Butler against the Brooklyn, Flatbush & Coney Island Railway Company and Charles W. Kitchen, to recover possession of land on Coney island, in the town of Gravesend. Charles H. Green-leaf died pending the action, and Elizabeth Greenleaf, his sole executrix, legatee, and devisee, was substituted in his stead. From a judgment dismissing the complaint on the merits, with costs, plaintiffs appeal.
    Affirmed.
    For former reports, see 37 Hun, 435; 5 N. E. Rep. 786; 3 N. Y. Supp. 222; 8 N. Y. Supp. 30; 30 N. E. Rep. 762.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Williams & Ashley, (Frederic A. Ward and Mornay Williams, of counsel,) for appellants.
    William C. De Witt, for respondents.
   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 defendants, the court of appeals overthrew the proposition that the judgment in partition imported seisin of the land, while the plaintiffs contend that the opinion of the court of appeals sustained the decision of the general term respecting idle 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 the plaintiff’s claim 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 of 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 defendants, 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 defendants are 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-All concur.  