
    Max Danziger, Resp’t, v. John Boyd et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed December 9, 1887.)
    
    Deed—Adverse possession.
    To make the possession of land adverse, so as to avoid a deed thereof under the statute (2 R. S., 739, § 147), such possession must be under the claim of some specific title. The title may be good or bad, but there must be at least a color of title opposed to the title of the grantor in the deed; and there is no such color of title when the possession was taken purely by mistake as to the boundaries of the deed.
    Appeal from a judgment entered upon the verdict of a jury.
    This action was brought to eject the appellants from a strip of land about six feet in width, being the easterly part of the premises upon which stands the rear house of No. 150 Leonard street, New York city; in other words, to cut off six feet of the easterly part of said house to its full length.
    Anthony Crown, deceased, about thirty years ago, built four houses, a front and rear house forming the premises 150 Leonard street, and another front and rear house forming the premises 152 the same street. At his death he was the owner of these four buildings, and of two other buildings fronting on Leonard street, known as Nos. 146 and 148 therein.
    Nos. 150 and 152 each comprise two buildings—two in the front and also two in the rear. The entrance to the rear buildings is by an alley, between 150 and 152, and extending upon both lots. In partition proceedings had after his death, said property was sold by the referee. After the sale the referee made a report of such sale, in which he stated that he had sold 146, 148 and 150 Leonard street to James Boyd (under whom the defendants claim), and that he had sold 152 Leonard street to Peter Pia, under whom the plaintiff claims. This report was confirmed, and by the order of confirmation the referee was directed to complete the sales made by him, and to execute the necessary conveyances to the purchasers.
    Nowhere in the referee’s report or title, or in his report of sales, nor in the order of confirmation of sales made by him, or in the judgment of partition, are any distances or metes or bounds of any of the premises given. They are designated throughout by street numbers.
    The referee, upon the confirmation of his report of sales, made deeds of conveyances to the respective purchasers. The one to James Boyd, and under this said grantee at once took, and he and his successors in interest, including the defendants, have ever held possession of premises 150 Leonard street, front and rear, as now. The one to Peter Pia, and under it the grantee and his successors in interest, down to and including the plaintiff, took and have ever since held possession of 152 Leonard street, front and rear, as now, never, until the commencement of this action, making any other claim. To the eye there is nothing indicating the width of the rear of 150 or 152, except the rear buildings. There are no fences dividing the premises. The referee, in his description, gave the breadth in the rear as being about as many feet as is the width of the front, and he omitted to give the street numbers by which alone these premises could be identified as the ones sold and which he was directed to convey. Peter Pia, and all claiming under him, down to and including the plaintiff, have by all conveyances in the chain of title, designated the premises conveyed to Peter Pia as being known by street number 152 Leonard street. There has always been a party wall as it now stands between the rear building on 150 and 152, and an alley-way as now between the front buildings on Leonard street. The space between the front and rear buildings, Ros. 150 and 152, has always been open—no dividing fences. The buildings on each are constructed with reference to the partition wall between the rear buildings.
    
      Townsend & Mahan, for app’lt; L. Sanders, for resp’t.
   Per Curiam.

This case has been twice before this court on appeal. On the first appeal it was held that the plaintiff was the owner of the strip of land in dispute, and this decision should be followed unless it clearly appears that, for some cause not presented by counsel or considered by the court on that appeal, the former decision was erroneous.

The learned counsel for the appellant now claims that the ■deed to the plaintiff under which he claims title to the premises in dispute was void for the reason that, at the time of the dehvery of the deed, such land was in actual possession of the defendant claiming under title adverse to the plaintiff. Section 147, art. 4, tit. 2, chap. 1, part 2, Revised Statutes.

The case of Crary v. Goodman (22 N. Y., 170), appears to be decisive against the appellant on this point. The court there says, “Nothing can satisfy the language of the-latter act (the statute in question), but the existence of some specific title under which the plaintiff claims. The title may be good or bad, but there must be at least a color of title opposed to the title of the grantor in the deed; and there is no such color of title when the possession was taken purely by mistake as to the boundaries of the deed.”

On an examination of the other objections to the plaintiff’s title it clearly appears that they are within the decision of the case on the former appeal, and we think that, decision is decisive.

The trial judge submitted the question of the amount of the mesne profits to the jury as directed by the decision of the general term on the last appeal, and, applying that decision, it does not appear that the court below erred.

The judgment should, therefore, be affirmed, with costs,  