JAMES, J., concurred in the opinion that the land in question was not legally appropriated as a street; but he thought the act of the defendant was a mere trespass, and that no case was made to sustain ejectment. HOYT, J., thought the question whether thelocus in quo was a street was not in the case. Ejectment lies to recover the plaintiff's *Page 658 land, although it were in a street; and the act of the defendant is a sufficient occupation by it to support the action. COMSTOCK, Ch. J., SELDEN and DENIO, Js., concurred with HOYT, J. LOTT, J., also concurred in the opinion that the action of ejectment was a proper remedy to recover land, though subject to public use as a street; but he agreed with JAMES, J., that there was no such occupation by the defendant as would sustain that action against it.
Judgment reversed, and judgment at special term affirmed.