it started, does not appear. If the plaintiff boarded the car just north of the first pillar at Sixty-Third street, and remained upon the running board until hit by the second pillar, no explanation is given by him as to why he thus remained in a dangerous situation during the passage of the car from the first to the second pillar, instead of promptly entering the car. His testimony, taken as a whole, and given the most favorable construction, fails to show an absence of contributory negligence on his part and negligence on the part of the defendant, and defendant's motion to dismiss his complaint on that ground should have been granted.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

(42 Misc. Rep. 358.)

MITCHELL v. EINSTEIN et al.

(Supreme Court, Special Term, New York County. January, 1904.)

1. ADVERSE CLAIMS TO REALTY-EVIDENCE.

An action to determine claims to real estate under Code Civ. Proc. § 1638, may be maintained on proof of legal title.

2. QUIETING TITLE.

A person may maintain equitable suit to remove a cloud from title if he is in actual possession.

3. MUNICIPAL CORPORATIONS-ESTABLISHMENT OF HIGHWAY.

Proceedings taken by the city of New York to widen and extend the Bloomingdale Road at about 1795 were taken under the highway act of 1787, c. 61, which appointed the common council commissioners, with power to assess damages.

4. SAME TITLE ACQUIRED.

The proceedings for the acquisition of the Bloomingdale Road under Laws 1787, c. 61, were for the purpose of acquiring a public road, and an easement for it, and the city neither sought nor acquired the fee of the land in the road.

5. SAME-EASEMENT.

An owner of land on the western side of the Bloomingdale Road, in New York, and other owners of other lands, by a deed, March 24, 1795, released to the city of New York so much of their lands as might be necessary to make the road four rods wide. Held, in view of the recitals therein conveying the land for a public road to the city of New York "for the sole and only use of a public road forever," the city acquired only an easement in the road; the fee thereof, subject to such easement, remaining in the grantors.

6. HIGHWAY-ABANDONMENT-RIGHTS OF ABUTTING OWNER.

A grantor in a deed conveyed certain lands to the city of New York for a road, reserving the fee, and retained until his death the land abutting on one side of the road between Ninety-Sixth and Ninety-Seventh Streets, in the present city of New York. The fee in the road passed in partition under a referee's deed in 1856, which by its description covered the land in the road. The road was closed by the commissioners of Central Park. in proceedings taken under Laws 1867, p. 1748, c. 697, in 1868. Held, that the fee of the side of the road abutting on the lands of such grantor passed, under section 3, c. 697, p. 1750, of the Laws of 1867, to the purchaser from the referee in partition.

7. SAME.

Where an owner of land gave a city a right of way over the same for a road, reserving the fee, and the abutting land was subsequently partitioned among the heirs of the grantor, and the purchaser at partition in

and 120 New York State Reporter

1860 conveyed the abutting land by a deed, whose description excluded the land on the westerly side of the road, to one S., and he conveyed such land to one K. before 1868, at which time the road was closed by the commissioners of Central Park under Laws 1867, p. 1748, c. 697, held, that K., as abutting owner, when the road was closed, had no title to the land on the westerly side thereof, because the city never had the fee thereof, and could not pass it to K. when the road was closed.

8. DEED-CONSTRUCTION-RIGHTS IN HIGHWAY.

Where a deed describes certain lots as bounded "easterly in front by the Bloomingdale Road," it conveys the road lying in front of the lots to its center.

9. SAME.

A deed of certain lots referred to a map, giving their numbers, and described them as beginning at a point formed by the intersection of the B. Road with the northerly side of Ninety-Sixth street, "thence westerly, thence northerly, thence easterly along the southerly side of Ninety-Seventh street to the westerly side of the B. Road, and thence southerly along the westerly side of it to the point of beginning." Held not to convey any part of the road.

Action by Lucy B. Mitchell against David L. Einstein and others. Judgment for defendants.

Charles S. Noyes (David B. Ogden, of counsel), for plaintiff. Seligman & Seligman (James A. Deering, of counsel), for defend

ants.

LEVENTRITT, J. This action involves the title to the westerly half of the bed of the old Bloomingdale Road, between Ninety-Sixth and Ninety-Seventh streets. It is conceded that the record title is in the defendants, but it is claimed that facts and circumstances outside the record, and primarily an unrecorded deed produced from the comptroller's office, establish the invalidity of the defendants' title, and the foundation of the plaintiff's claim.

The complaint can be construed in the alternative, as setting up the Code action to determine claims to real property (section 1638), or the classic equity suit to remove a cloud. Preliminary objections are made by the defendants that the action cannot be maintained in either form. I believe the objection unfounded, and that the issue should be determined on its merits. Under the recent authority of Whitman v. City of New York, 85 App. Div. 468, 83 N. Y. Supp. 465, possession is deemed to follow the legal title, and proof of the latter is sufficient to sanction the maintenance of the Code action, while the requirements of the equity suit are satisfied by actual possession at the time of the institution of the action.

In its last analysis, the determination of this action turns upon the construction of an instrument executed in 1795 by landowners along the line of the Bloomingdale Road to the then city of New York. If that instrument be held to convey a fee, then the legal title will be found to be in the plaintiff; if an easement merely, then the legal title is in the defendant. Stripping the case of intermediate questions, we reach the point where the Bloomingdale road was closed under the act creating the Central Park commission. Who was at that time the

¶ 8. See Boundaries, vol. 8, Cent. Dig. § 123.

abutting owner on the westerly side of the road? If the plaintiff's predecessors in title-and they were if the instrument of 1795 passed a fee then the fee of the bed became vested in those predecessors, and through them in the plaintiff. If the defendant's predecessors in title -and they were if the instrument of 1795 passed an easement-then the fee of the bed became vested in the defendant's predecessors, and through them in him. This instrument of 1795 has never been construed by the courts of this state, so far as I am aware, although I am of the opinion that its construction was necessarily involved in at least one case (De Peyster v. Mali, 92 N. Y. 262), and was indirectly before the lower courts in several others. The instrument itself remained undiscovered in the comptroller's office until the year 1881, and, while in evidence in the De Peyster Case, was not referred to in the opinion. This is the instrument:

"To all to whom these presents shall come:

"Whereas the Mayor, Aldermen and Commonalty of the City of New York have lately laid out, regulated and continued the public highway or Road, commonly called the Bloomingdale Road, of the breadth of four rods, through the lands of James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John P. Waldron, Andrew McGown, Samuel Kelly and Samuel Bradhurst:

"Now, therefore, know ye that, in order to show the willingness and consent of the said persons respectively above named, that parcel of their respective lands, or so much thereof as may be necessary for the said road of the breadth of four rods, should be taken and held by the said Mayor, Aldermen and Commonalty of the City of New York, for the purpose of a public road as aforesaid. And for and in consideration of the sum of five shillings to the said persons respectively above named paid by the said Mayor, Aldermen and Commonalty of the City of New York, they the said persons above named-to wit, the said James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John P. Waldron, Andrew McGown, Samuel Kelly and Samuel Bradhurst-have, and each of them doth, for himself, his heirs and assigns, hereby grant, release and forever quitclaim unto the said Mayor, Aldermen and Commonalty of the City of New York, and their successors, all that, the parcel of their respective lands, or so much thereof as may be necessary for the said road of the breadth of four rods as aforesaid; to have and to hold the said parcel of the said respective lands, or so much thereof as may be necessary, for the said public road as aforesaid, with the appurtenances, unto the said Mayor, Aldermen and Commonalty of the City of New York, and their successors to and for the sole and only use of a public road forever.

"In witness whereof, the said James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John P. Waldron, Andrew McGown, Samuel Kelly and Samuel Bradhurst have hereunto respectively set their hands and seals this twenty-fourth day of March, in the year one thousand seven hundred and ninety-five. [L. S.]

James Striker.

James Striker, the first signer, was the owner of the premises in question. They formed part of a tract of land known as the "Striker Bay Farm," originally owned, with other lands, by one Theunis Edes,

and 120 New York State Reporter

in 1680, and conveyed to Gerritt Striker, the father of James, by one Apthorp, in 1764.

James Striker died in 1831, leaving by will the farm to the children. by his second wife. In 1855 an action in partition was begun by George W. Striker, one of the children of James. On April 25, 1856, a judgment of partition and sale was entered, and Philo T. Ruggles, Esq., was appointed referee to sell. Sale was had on June 11, 1856, the farm being sold in lots with reference to existing streets and the Bloomingdale Road, in accordance with a map on file in the register's office, known as the "Striker Bay Farm Map."

On this map, lot Nos. 251-258, both inclusive, embraced all of the land lying on the westerly side of the Bloomingdale Road, between Ninety-Sixth and Ninety-Seventh streets. By deed dated August 1, 1856, Referee Ruggles sold to John B. Cotte lot Nos. 252-258, inclusive, "which lots when taken together, are bounded and described as follows: Easterly in front by the Bloomingdale Road," southerly by Ninety-Sixth street, and on the other sides by identified lot numbers. On the same day lot 251 was conveyed by him to George H. Peck, which was likewise bounded "easterly in front by the Bloomingdale Road." In 1859 Peck conveyed to Cotte, so that the latter became the owner of the whole block between Ninety-Sixth and Ninety-Seventh streets, bounded easterly in front by the Bloomingdale Road. These several descriptions were all effective to carry whatever title the grantor had in one-half of the bed of the Bloomingdale Road lying in front of the premises conveyed. People v. Law, 34 Barb. 494; Lozier v. N. Y. C. R. Co., 42 Barb. 465; Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370, 13 L. R. A. 611. On March 1, 1860, Cotte conveyed to Richard Sands his eight lots. The description in the deed begins by referring to the Striker Bay Farm map, and identifies the lots as those sold by Ruggles, referee, by the Nos. 251-258, and then continues:

"Which said lots taken together, are bounded and described as follows: Beginning at a point formed by the intersection of the westerly side of the Bloomingdale Road with the northerly side of Ninety-Sixth Street, and running thence westerly along the said northerly side of 96th Street 86 feet and 8 inches, thence northerly and parallel with the Eleventh Avenue 100 feet 11 inches to the centre line of the block, thence easterly along said centre line of the block 25 feet, thence northerly and parallel with the Eleventh Avenue, 100 feet 11 inches to the southerly side of 97th Street, thence easterly along said southerly side of 97th Street 87 feet 84 inches to the westerly side of Bloomingdale Road, and thence southerly along the said westerly side of the Bloomingdale Road, 203 feet and 6 inches, to the point of beginning. Together with the right, title and interest of the said parties of the first part, in or to such parts of the strips of land laid out on the said map as public streets called Ninety-Sixth and Ninety-Seventh streets, as lies in front of, or adjoining the said lots hereby granted and conveyed, and extending to the middle of the said streets."

The effect of this description is the subject of some controversy. The authorities, however, are conclusive that the portion of the road lying in front of the premises conveyed did not pass by the deed, but remained in the grantor. Van Amringe v. Barnett, 8 Bosw. 357: Child v. Starr, 4 Hill, 370; Jones v. Cowman, 2 Sandf. 234; Augustine v. Britt, 15 Hun, 395, affirmed in 80 N. Y. 647; Mead v. Riley, 50 N. Y. Super. Ct. 20, affirmed in 102 N. Y. 669; Blackman v. Riley, 138 N. Y. 318, 34 N. E. 214. The case of Augustine v. Britt, relating to

the same property, and where the precise description here involved was construed, would seem to be controlling. Not only does the description begin at a point formed by the intersection of the westerly side of the Bloomingdale Road with the northerly side of Ninety-Sixth street-a point that has been held to be as controlling as any monument, and effectually to exclude the soil of the road (White's Bank v. Nichols, 64 N. Y. 65; English v. Brennan, 60 N. Y. 609; Holloway v. Southmayd, 139 N. Y. 390, 34 N. E. 1047, 1052)-but the last course, running along the side of the road, taken in connection with the point of beginning, is in itself sufficient and controlling (Blackman v. Riley, supra). I do not follow the plaintiff in his argument that there is any ambiguity in this deed from Cotte to Sands, and that therefore parol and extrinsic evidence is admissible to prove that the intent was to include the road. It will not do to say that because a description by lot numbers alone would be held to convey to the center of the street or highway (Bissell v. N. Y. C. R. Co., 23 N. Y. 61; Perrin v. Same, 36 N. Y. 120), this general description, followed by a specific description which plainly excludes the road or street, creates any ambiguity. The specific description controls the general description, and, where the description by lot number is followed by one beginning at the intersecting point of the exterior lines of two streets, this point controls the rest of the description, so that lines running along the streets are confined to the streets' exterior lines, excluding the bed. White's Bank v. Nichols, supra; Fearing v. Irwin, 4 Daly, 385, affirmed in 55 N. Y. 486; Matter of St. Nicholas Terrace, 76 Hun, 209, 27 N. Y. Supp. 765, affirmed in 143 N. Y. 621, 7 N. E. 635; Augustine v. Britt, supra.

But even should the extrinsic evidence be admitted to explain the grantor's intent by showing that Cotte had no other property in the neighborhood, the proof would not be of much avail to the plaintiff. It would not establish the fact that he could not have intended to retain the title to the road in himself. The controlling specific description would still fail to convey the fee of the road. The language of the court in Blackman v. Riley, supra, the facts of which go beyond the requirements of this case, is pertinent:

"It is difficult to conceive of any reason for consciously reserving or failing to convey the roadbed of this road, subject to the public easement. We cannot think it was ever really intended, yet nevertheless we are disposed to hold that, by the language actually used, the grantors in fact failed to convey any portion of the land forming the bed of the road in question." Pages 324, 325, 138 N. Y. page 215, 34 N. E.

It remains, therefore, that whatever title Cotte had in the bed of the Bloomingdale road fronting the premises before the conveyance to Sands was still in him to dispose of after his conveyance to Sands. The plaintiff, who claims only the bed of the old road, therefore, cannot trace his title to that land to Sands, as the latter never had it.

The plaintiff, however, also claims title through a different source, and this brings us to the more serious question of the case. By a series of mesne conveyances, the lands conveyed to Sands became vested in one Martin M. Kellogg, who became the owner thereof on December 14, 1867. The description in these mesne conveyances