[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 568
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 569 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 571 The defendants were entitled to judgment upon the facts found by the General Term. The plaintiff, *Page 573 Carleton, having been in possession of the premises at the time of his dispossession by Darcy in June, 1876, established primafacie, his right to recover. It is well settled that a prior possession is sufficient to entitle a party to recover in an action of ejectment against a mere intruder or wrong-doer, or a person subsequently entering without lawful right, and when such prior possession is shown by the plaintiff, the defendant is put to his defense, and must establish a better right than that of the plaintiff. The plaintiff showed no paper or documentary title to the premises. His possession commenced by an entry upon the land in the fall of 1875, and there is no evidence of any right or title in him except such as is afforded by such entry and his subsequent possession. It was shown that the defendant Darcy entered upon the lot in question in June, 1876, under a lease purporting to be from the mayor, aldermen and commonalty of the city of New York, acting by the commissioners of the sinking fund, but executed by Andrew H. Green as comptroller of the city, under his seal.
The city was properly allowed to come in and defend the action. It was no objection that the lease was not formally executed by the commissioners of the sinking fund, pursuant to section 102 of the charter of 1873. The relation of landlord and tenant between the city and Darcy was recognized by both parties, and although the lease was not formally correct in respect to the manner of execution, the plaintiff is not in a position to question the existence of that relation between the defendants. Whether the city could be made liable upon the covenants in the lease, in an action by the lessee, is not a material question. The possession of Darcy for the purposes of this action, was the possession of the city. The material question is, whether the city established a prior possession to that of the plaintiff to the premises in question. If it did, and such possession was not voluntarily abandoned, it could have maintained an action against the plaintiff to recover the premises prior to his dispossession, for the reason that upon such prior possession being shown, the presumption of title in the plaintiff would be shifted and would attach to the prior possession of *Page 574 the defendant. (Smith v. Lorillard, 10 Johns. 338.) Assuming that the city failed to establish a legal title to the lot in question, by the proceedings taken under chapter 246 of the Laws of 1839, on the ground either that that law was unconstitutional, as is claimed by the plaintiff, or because it failed to show all the steps requisite to be taken for the condemnation of the land, the fee of which it was authorized to acquire by that act, it is nevertheless clearly established that the city was in possession of the lot in question, claiming title under those proceedings, from 1840 or thereabouts, to the time of the plaintiff's entry in the fall of 1875.
The order of the Supreme Court confirming the report of the commissioners of estimate, made on the 3d day of September, 1839, together with such other proceedings as were proved to have been taken for the condemnation of the land mentioned in the act of 1839, in connection with the subsequent acts of ownership exercised by the corporation in respect to the property embraced in the report, leave no room to question the fact that the city claimed to have acquired the title under those proceedings. The lease of the market-house to Harden-brook in 1843, the removal of the market building by the city in 1859, the throwing open of the tract by the common council for a public park in 1863, and inclosing it with a fence, and making walks, and placing therein seats and benches for the accommodation of the public, the continuous use of the tract as a park until the auction sale in 1867, the offering of the lots by the city for sale at that time, and the subsequent use of the unoccupied part of the land for public meetings, and as a public common, were acts and conduct which can only be accounted for upon the assumption of a possession of the tract by the city under a claim of title. Nor is there any evidence that the city abandoned possession of the premises prior to the entry by the plaintiff. It retained such possession and exercised such control as a municipal corporation ordinarily retains and exercises over lands used for public parks or grounds, and the lease granted by the city to Darcy, and under which he entered, was executed within a few months after the entry by *Page 575 the plaintiff. The general statement in the case that the plaintiff was in actual possession of the land from November, 1873, is not consistent with the other special findings, because it is found that after the sale in 1867, and the disappearance of the fence which had previously inclosed the tract, the workmen in the neighborhood went thereon with their horses and carts to take their noon-day meals and rest, and the public went upon and over the land as they pleased, "until the plaintiff inclosed it in September, 1875." If the city could have maintained ejectment against the plaintiff after his entry, by force of its prior possession, a fortiori, can it defend its possession, subsequently acquired, against the claim of the plaintiff, whose only right, so far as the case shows, rests upon the presumption of title from his possession, commencing in September, 1875.
For these reasons the judgment of the General Term should be reversed, and judgment dismissing the complaint entered for the defendant.
All concur, except TRACY, J., absent.
Judgment accordingly.