The referee found that the judgment recovered in 1866 by Van Rensselaer against this defendant in ejectment for the non-payment of rent terminated the lease. The Court of Appeals, speaking of that very judgment, said : “ The effect of the judgment was to terminate the lease.” (Van Rensselaer v. Wright, 121 N. Y. 626.)
But the referee held that the evidence failed to establish an adverse possession for twenty years by the defendant.
The evidence was to the effect that the defendant had continued in possession ever since the judgment, without redeeming and with*318out paying any rent. Had lie done either, the relation of landlord and tenant would have been reinstated. But as it was terminated by the judgment, and was in no wise reinstated, the continued possession of the defendant down to 1894, when this action was commenced, was not under that relation, and since the plaintiff’s claim, rests upon that relation and upon no other; it necessarily fails.
It should be noticed that the “ six months after possession of the property awarded to the plaintiff in such an action has been, delivered to him by virtue of an execution,” within which ,tlie defendant has a right to redeem after judgment (Code Civ. Proc. § 1508), or, as it was expressed in Van Rensselaer v. Wright (supra), by which- the- “ force and effect (of the judgment) could be averted by the defendant’s paying up-his arrears of rent and thus keeping the possession . of the property,” never arrived, because the plaintiff in the judgment of 1886' never had the possession delivered to him. Thus this defendant, during the twenty-eight years of his undisturbed holding, after the termination of the lease, lias never been placed in a-, position- where he must elect to reinstate himself under the lease, or lose his right of possession.
Since the. termination of the lease the defendant lias held peaceable possession- of the premises, claiming adversely,, no matter if. without original right, to the perfect- exclusion of any , possession of ' the plaintiff or her grantors or under them, His adverse possession is,, therefore, complete. (Code Civ. Proc. § 365.)
Moreover, the defendant in 1858 originally entered into possession " under a warranty deed from John Young, conveying the premises to him, “ subject only to all demands that may be made a lien hereafter by Stephen Van Rensselaer, or his heirs from this date.” All such, demands were merged in the judgment of 1866. • Under his judgment,. we may assume- that Stephen Van Rensselaer or his. grantees might at any time have taken possession of the. premises, but as neither he nor they did so within- twenty years, nor have been able to. do- since, the plaintiff lacks both -the -seisin. and possession, which section 365 prescribes as the condition precedent to her right t.o maintain the action. If cases like Bradt v. Church (110 N. Y. 542); Whiting v. Edmunds (94 id. 314); Bedlow v. N. Y. Floating Dry Dock Co. (112 id. 263) apply, they do so by defining the limitation of - plaintiff’s rights, under the lease ; such rights are presump*319tive merely. The cases hold that when the relation of landlord and tenant is once shown to exist, it is presumed to continue. But for the-judgment of 1866 this presumption would exist here. But that judgment terminated the lease and thus • rebutted the presumption. The burden manifestly rests upon the plaintiff to show that since that judgment the defendant has done something to reinstate the old relation or to recognize its continuance. Nothing has been shown. Therefore, I advise a reversal of the judgment.
Judgment affirmed, with costs.