
    Antimo Cioppa et al., Appellants, v. State of New York, Respondent.
    (Claim No. 37190.)
   Gibson, P. J.

Appeal by claimants from a judgment of the Court of Claims which dismissed their claim for damages on account of an alleged de facto appropriation for highway purposes of a portion of their property abutting the northerly line of the Troy-Seheneetady highway. The reconstruction of the highway precipitated this claim. The State made no formal appropriation of any lands from claimants and its contention that claimants did not own the parcel for which they claim damages was properly sustained by the Court of Claims. By a 1945 deed there was purportedly conveyed to claimants a rectangular parcel, 60 feet in width, front and rear, and extending northerly 388 feet from the center line of the highway; but in connection with that purported conveyance, a survey and map were made, which claimants now rely upon as part of their ease, which show a marker on the westerly line of the parcel, some 17.4 feet northerly of the described southerly line and a corresponding marker in the easterly line of the parcel, some 15.25 feet northerly of the described southerly line; and the area delineated by the markers on the north and the highway on the south is marked “subject to right of road” and is the area of the alleged de facto appropriation, appellants’ brief asserting the State’s “intrusion into claimants’ premises of fifteen to seventeen feet”. By convincing testimony and visual proof, the State established the acquisition of this disputed parcel by the County of Albany, for purposes of the highway, by deed executed in 1909, claimants’ counsel conceding the identification thereof by stipulating to the 1909 deed as “ covering the exact parcel that we are now litigating.” Judgment affirmed, without costs. Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.  