
    Catharine Diefendorf, Resp’t, v. Mariah Diefendorf et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    1. Deed—When not intended as a will
    D., a few days before his death, bein■ ■ sifck, sent for Dr. A., the son of his attending physician, asked him if he ,vould draw a deed, and told him he wished to give all his property to his wile, real and personal, in consideration of $3,000 she had paid to him. < --r, A. drew the paper in question, it was executed by D. before a notary his request, and delivered to the doctor with instructions to retain it for D.’s wife until after his death, and then have it recorded, which was done. Meld, that it was a present conveyance of D.’s property to his wife, and not'p, will.
    3. Same—Action tp quiet title—Possession for three tears.
    Under the statute it is requisite to the mainten;' if an action to determine claims as to real property that there should.iiave been possession for three years or more by the plaintiff, or by her and “ thpse'whose estate she had.” Held, that it was not essential that such possession should be adverse for three years to defendants’ claim. And as plaintiff’s husband had possession for several years, and as between the date of the conveyance under which plaintiff claimed and the commencement o4 this action there was a period of two years and eight months, the action was properly brought.
    3. Same.
    The property was a large building on the corner of two streets, the first floor being used for stores, and plaintiff occupying the second and third floors as a millinery store and as a residence. She res'led on the premises, and collected rents from the tenants. Held, that in vtuis occupation there was that foothold upon the ground which is essential 'o constitute actual possession.
    Appeal from an order of the general term of the third -d-icial department, reversing a judgment of-the special term and gn. ‘mg a, new trial.
    The complaint alleged that plaintiff was in possession of 'teal property under a claim of title by deed from her deceased husband and that defendants claimed the land as heirs at law of her husband. . '
    It demanded a judgment barring said defendants from any estate in said property, and that plaintiff’s title be quieted and adjudged to be free from any right therein of the defendants.
    The answer denied plaintiff’s possession and alleged that John Diefendorf, plaintiff’s husband, was seized of. the property at the time of his death and died intestate, leaving plaintiff as his widow and defendants as his heirs at law.
    The defendants introduced no evidence upon the trial. _
    _ It appeared that John Diefendorf, a few days'before his death, being sick, sent for one Douglass Ayres, a physician, and a son of his attending physician, and asked him. if he would draw a deed of his property and gave him an old deed containing the description of the property in suit. He told Doctor Ayres that he wished to give all his property to his wife, real and personal, and stated to him. what it was. That was to be in consideration of $3,000 that she had paid to him and other considerations. Doctor Ayres drew the paper which is the subject of this controversy, -and it was executed by Diefendorf and delivered to the doctor, with instructions to retain it for his wife until after his death and then have it recorded. After his death it was recorded.
    The special term found this paper not to have been a deed but an attempted testamentary disposition of property, and that Diefendorf died intestate and that defendants were entitled to the property, subject to the plaintiff’s dower therein. The general term reversed the judgment upon the law and facts and granted a new trial. From that order defendants appealed to this court,
    
      E. Countryman, for' app’lts; N. C. Moah, for resp’t
    
      
       Affirming 31 St. Rep., 1003.
    
   Brown, J.

The complaint contained all the allegations essen-' tial to constitute this an action to determine claims to real prop■erty. Code Civ. Pro., §§ 1638,1639.

The appellants claim that the proof did not show that the plaintiff was in the actual possession of the property. The court found that after her husband’s death she continued to reside upon it and assumed to be its owner, and collected the rents from the part not used by her. The. property was on the corner of Division and ■Canal streets, in the village of Fort Plain, and a large building ■covered nearly the whole lot. The first floor was used for stores. The plaintiff occupied the. second and third floors, partly for a millinery'store and partly as a residence. She testified that she had property in every room in the second and third stories. The other parts of the building were rented to tenants who paid their rent to the plaintiff. In this occupation there was that foothold upon the ground which is essential to constitute actual possession.

Upon the trial defendants moved to dismiss complaint on the ground that the plaintiff had not been in possession for three years.

Under the statute it was requisite to the maintenance of the action that there should have been, possession for three years or more by the plaintiff, or by her and “ those whose estate she had.’ The plaintiff’s husband had been in possession for many years, and it was only necessaiy that the total time of the possession of both should be three years. It is not essential that such possession should be adverse for three years to the defendants’ claim. • Between the date of the conveyance under which plaintiff claimed, ■and the commencement of this action, there was a period of about two years and eight months, and we think the action was properly brought

Upon the facts of the case we concur in the result reached by the general term.

The weight of the testimony was to the effect that Diefendorf intended to make a present conveyance of his property to his wife, and we think there is very slight ground to hold that he intended to make a will. He inquired of Dr. Ayres if he could ■draw a deed.

The statement that he desired to give his property to his wife must be construed in that connection. He contemplated and intended a gift by deed. In form the instrument is a deed. It was sealed and acknowledged as such and the deceased appeared to-understand the necessity of an acknowledgment, as he directed the procuring of a notary public to take it There was nothing in his request to the doctor after its execution to indicate an intention not to make the conveyance effectual immediately. The only direction he gave was that it should not be recorded; but the delivery was for his wife. It was not essential that the delivery should have been to the plaintiff Delivery to Doctor Ayres for her use was enough. Church v. Gilman, 15 Wend., 656. The deceased reserved no control over the deed, and there is no-' question in this case as to its acceptance. The title passed to the plaintiff.

The order should be affirmed, and judgment absolute rendered against the appellants, with costs.

All concur, except Lahdoh,- J., not sitting.  