This is an action in ejectment to recover possession of a parcel of land between Melrose avenue and another avenue in the county of Bronx. The State claims title by escheat from one James Wells who died at the city of New York on or about the 10th day of June, 1879. The corporation defendant is in. possession of the property, or a portion of it but exhibits no claim of title thereto. The defendant Tuthill holds an assignment of a tax lien upon the property from the city of New York.
Since the court merely dismissed the complaint for lack of evidence of plaintiff’s title, no decision or findings of fact *633were filed. The court filed an opinion, however, indicating what facts had been satisfactorily proven, and wherein, as it was considered, the proof had failed.
The facts shown to the satisfaction of the court and abundantly proven by the evidence were that James Wells, who died in the city of New York on or about June 10, 1879, was the person of that name who was the grantee of the premises in suit from G-ouverneur Morris by a deed dated May 10, 1861; that he died seized of the premises ; that he was about ninety-two years old at the time of his death and died intestate; that he left him surviving a wife, who died March 19, 1883, and that he never had a child. It also appeared in evidence that Wells originally came from England or Wales, or at least he so stated. His place of origin was not definitely fixed.
The learned justice who presided at the Special Term was of the opinion that the State had failed to show with sufficient certainty that the deceased had not left collateral heirs, and upon this ground dismissed the complaint. The evidence upon the subject was given by a nephew and niece of James Wells’ wife, both of whom had lived with said Wells and his wife for eleven years prior to his death in 1879, at which time the nephew was nineteen years of age, and the niece sixteen. They testified very positively, and were unshaken by cross-examination, that Wells had repeatedly said to them and in their presence that he had no brothers or sisters or other living relatives. The declarations of the decedent in such a case as this are competent proof. {People v. Fulton Fire Ins. Co., 25 Wend. 219; Young v. Shulenberg, 165 N.Y. 388; Layton v. Kraft, 111 App. Div. 845.) This evidence the court in the case at bar entirely rejected because of some supposed interest on the part of the nephew and niece who gave it, but we can discern no way,in which they can gain an advantage by the vesting of title in the State, since they made no claim to be of the blood of James Wells. There was an attempt made to show that at some time after the death of Mr. Wells’ widow some steps were taken looking to obtaining an act of the Legislature releasing the title to her relatives, but it came to nothing. On the whole we consider that the plaintiff sufficiently proved that James Wells in his lifetime, and when he *634had no ulterior purpose to subserve by telling an untruth, repeatedly declared that he had no living relatives. This we think, as against defendants having no claim of title whatsoever, was sufficient. We are not unmindful of the general rule that . a plaintiff in ejectment must recover upon the strength of his own title and not on the weakness of his adversary’s, but this rule, as has repeatedly been said by the Court of Appeals, “has its proper application where title is asserted against title; but not to a case where the defendants, making no claim of title, object that the plaintiff has not proved a perfect title against those who might claim adversely.” (.Deering v. Reilly,. 167 N. Y. 190, 191; Barson v. Mulligan, 191 id. 306, 325.)
James Wells had been dead thirty-seven years when this cause was tried and no one claiming to be related to bim had appeared or been heard of. He had owned the property for eighteen years before his death and, until shortly before he died, had occupied it and was well known to his neighbors, and so far as appears no one of them had ever heard of any relatives of his. His place of origin is unknown so that there is no place at which inquiries could be made. It will be seldom that the State can give better evidence of escheat than it has done here.
The judgment appealed from must be reversed, and a new trial granted, with costs to appellant to abide the result.
Clarke, P. J., and Davis, J., concurred; Smith and Page, JJ., dissented.