Opinion PER CURIAM. railroad, to use or permit the use of the building for business purposes, he would be justified to use it or permit its use for any lawful business, no matter how obnoxious it may be to the residents of the street. The case of the defendant, Thacher, may be a hard one, but he bought with his eyes open and voluntarily assumed the litigation; hence, his case is like that of his predecessors in interest, as to whom ALLEN, J., in delivering the opinion of the court of appeals, said it would be unreasonable and unconscientious to hold them absolved from the covenant in equity, for the technical reasons assigned, that it did not run with the land so as to give an action at law. The plaintiffs are entitled to judgment, with costs. J. F. McIntyre and A. J. Dittenhoefer, for appellant. ent. G. D. & L. Harrison and S. P. Nash, for respond PER CURIAM.-Judgment affirmed, with costs, upon the opinion delivered by FREEDMAN, J., at special term. Statement of the Case. HESTER SHERMAN AND OTHERS, APPELLANTS, 0. THOMAS KANE AND WIFE, AND THE MAYOR, &c., OF THE CITY OF NEW YORK, RE SPONDENTS. I. Real estate. · 1. ADVERSE POSSESSION. (a) GRANTOR, IN FAVOR OF. 1. Adverse possession can commence and run in favor of a 1. This, though he has never given the grantee possession. 1. In this case held such disclaim. (b) CORPORATION, TITLE BY ADVERSE POSSESSION. 1. Has power to acquire such title in protection of an undoubted power to hold the lands in question. (c) WARRANTY DEED, EFFECT of as estoppel. 1. Does not estop grantor from beginning an adverse possession, and acquiring thereby a title which will not accrue to the benefit of the grantee. 1. Possession, effect of not giving. The above is the rule equally when possession is not given, as when it has been given and there has been a re-entry. (d) IMPLICATION FROM ADVERSE POSSESSION, AND POLICY OF DOCTRINE OF. 1. It necessarily implies that a title has been competently acquired through one or another of the methods of transferring title recognized by law, and which, if relied on by a warrantor, who had not gained title by adverse possession, I would enure to the benefit of the covenantee. BUT Where title by adverse possession is relied on, the POLICY OF LAW FORBIDS an examination of any particular claim from its conclusive presumptions that there has been some unquestionable claim. Statement of the Case. 2. STREET OPENINGS IN THE CITY OF NEW YORK. (a) LAND NOT REQUIRED FOR A STREET, EFFECT OF MAKING AND RECEIVING AWARD THEREFOR. 1. An award by commissioners for land not required for the street, but which is a part of a lot, a portion of which was required,, and which the commissioners deem it expedient to include in their estimate and assessment, and the acceptance of such award operate as a conveyance of the land to, and vest the title in, the corporation of the city of New York. II. PRESUMPTIONS AND ADMISSIONS. (a) EVIDENCE. 1. Cannot be relied on (when they do not operate as an estoppel) to the exclusion of decisive evidence as to the matters to which they relate. Before CURTIS, Ch. J., and FREEDMAN, J. Decided June 18, 1880. This is an action of ejectment to recover the possession of certain premises on the southwest corner of Seventy-ninth street and Third avenue. The diagram on the next page will serve to apply the opinion of the court to the questions involved in the view taken of the facts by the court. The line D D, intersecting the south side of Seventy-ninth street, is the southern line referred to in the opinion at page 321. This line is referred to in the testimony and points of counsel as line D D. The line JK represents the center line of the Old Post road as laid down on the old Goerck map. It intersects line D D at a point three hundred and forty-seven feet west of Third avenue. The space confined within lines E F, F G, G H, and H E, is the locus in quo. Plaintiffs claimed title through Alpheus Sherman, who claimed title through James Walker, who claimed under a warranty deed made to him in 1803, by the mayor, &c., of the city of New York, the description in which deed was as follows: 100.1 Land conveyed by City to Alpheus Sherman in 1835 bounded on the south by a piece of land belong ing to the party of the second part being part of lot 194 347 60 100 88,09 11 Statement of the Case. "All that certain piece or lot of land, parcel of the common lands of the said party of the first part, situated in the seventh ward of the said city, and described in the survey and map or chart of the said common lands, filed in the office of clerk of the said city, by the number one hundred and ninety-four; bounded on the west end by a certain road laid out on the said map, called the east road; on the east end, by another road laid out on the said map, called the Post Road; on the north side, by a street of sixty feet in breadth, between the said lot hereby granted and released, and lot number one hundred and ninety-five; and on the south side by another street of the like breadth of sixty feet, between the said lot hereby granted and released, and lot number one hundred and ninety-three. Reference being had to the said map, will more fully and at large appear." The lots are laid out on the map as containing in breadth at each end three chains and three links (200 feet), and in length on each side, thirteen chains and ninety-four links (920 feet), according to the English standard. It, perhaps, is proper to mention, that according to the testimony of Mr. Ludlam, if measurements are taken from the intersection of the division line between the New York and Harlem commons, with the easterly side of the east road the center line of the old sixtyfeet street, between lots 194 and 193, will intersect the east side of Fourth avenue, at a point one hundred and forty feet one inch south of the southerly line of Seventy-ninth street; while, if the measurements are taken from Forty-second street, it will intersect at a point one hundred feet two inches south of the southerly side of Seventy-ninth street. He also says line DD was intended to show the northerly line of the old street between lots 193 and 194. |