
    William Halladay (Otherwise Called William Halliday), Respondent, v. Frank Gass, Appellant.
    
      The record of a deed is evidence of its. delivery —presumption where the spelling of the grantee’s name is substantially, that of the name of the possessor' of the deed.
    
    The recording of a deed is presumptive evidence that it was delivered to the grantee therein named. •
    The possession of a deed by a person whose name is substantially the same as that of the grantee mentioned therein, although the spelling of the name is not identical, is evidence that the deed was delivered to such person and that he was the grantee named in it.
    Appeal by the defendant, Frank Gass, from an order of the Supreme • Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1900, granting the plaintiff’s motion for a new trial after a dismissal of the complaint.
    
      Seward Baker, for the appellant.
    
      Roswell W. Keene, for the respondent.
   Rumsey, J.:

The action was ejectment. Both parties claim title from one James Lent who was conceded to have been the owner of the premises on the 1st day of June, 1854. The plaintiff 'to establish his title read in evidence a certified copy of a deed made by James Lent and wife to William Halliday conveying the premises in question, duly acknowledged and recorded on the 8th day of May, 1855, in the office of the clerk of the county of' Westchester where the premises are situated. He also proved that that deed'w.as in his possession down to 1878, but that it had been subsequently lost. The certified copy of the duly, recorded deed, was evidence of its contents-with like effect as the original conveyance. (Code Civ..Proc. § 93’5.) The fact that the deed was recorded was presumptive evidence at-least 'that it had been delivered to the grantee named therein.. (Doorley v. O'Gorman, 6 App. Div. ,591.) The fact that the plaintiff had the deed in his possession was evidence not only that it had been delivered to him but that he was the grantee named in it, the name being' substantially the same, although not spelled correctly. (Strough v. Wilder, 119 N. Y. 530; Mercantile Deposit Co. v. Huntington, 89 Hun, 465.)

When the plaintiff rested his case there was clearly sufficient evidence to entitle,him to recoyer unless his title had been disproved,,, but no evidence was given on the part of the defendant. A witness was sworn for him but apparently his testimony was given de beneesse, and it was not considered upon the trial.. But if it had been ' considered it still left a question for the jury which should have-been submitted to them, and in any case, therefore, it was error-to order a verdict, and filie learned trial justice was correct in ordering a new trial, and the order must be affirmed, with costs of the action.

Patterson, Ingraham, McLaughlin and Hatch, JJ\, concurred..

.Order affirmed, with costs of the action.  