The defendants in this action of ejectment claim the right to hold the property by virtue of an assignment of a tax lien and also a tax lease for 999 years from the city of New York made in proceedings wherein the property was sold for taxes and assessments levied against it by the city between the years 1895 and 1912.' Unless, therefore, the plaintiff, State of New York, showed that there was escheat of the property prior to those dates the defendants were entitled to possession. The city of New York thus transferred to defendants the title of *635the owners of the property for the purpose of enforcing the tax lien, and unless the taxes were invalidly imposed because of prior escheat the defendants’ title is good. This is not a case, therefore, where defendants assert no title, as in Beering v. Reilly (167 N. Y. 190) and Barson v. Mulligan (191 id. 306, 325), cited by Mr. Justice Scott, and the plaintiff must succeed on the strength of its title just as in any action of ejectment.
The learned justice at Special Term appeared to be satisfied with the proof of identity between the James Wells who died in 1879 and the James Wells who received a deed of the property in 1861. It seems to me, however, that the proof of this fact was far from satisfactory. It rests entirely on the statement of the witness Matthew S. Wilson, a nephew by marriage of the James Wells who died in 1879, that his uncle “ told ” him he owned the property. This was pure hearsay, and was not brought within any known exception to the hearsay rule. This testimony was objected to, and motion to strike it out denied, but no exception was taken. Nevertheless it has no more weight than hearsay testimony of an interested witness should be given. It is the only evidence which identifies the James Wells of the deed with the uncle by marriage of the witness. I can find no evidence in the record that James Wells ever occupied the premises. An attempt was made to prove this fact by testimony of James L. Wells, the present State Treasurer, who has long been familiar with Bronx real estate, but, on cross-examination, it appeared that this witness had no knowledge of the facts except that on investigation he learned that the property did not belong to his father, also named James Wells, and assumed that it must have belonged to the James Wells of One Hundred and Fifty-sixth street, because he was the only other James Wells known to the witness. We thus have proof that there were at least two men named James Wells at that time. How many more there may have been we do not know, but the name is not uncommon.
It does not appear that any deed to this property was left among the papers of the James Wells who died in 1879, and there is nothing to connect him with it except the hearsay testimony of his wife’s nephew and his name.
*636As to the interest of the witness, the proceeding to obtain the property by act of the Legislature was taken on behalf of the witness Wilson himself and his sister after the death of Mrs. Wells, and was an attempt to have the land passed to the heirs of Mrs. Wells, who were the witness and his sister, by act of the Legislature, on account of failure of heirs of James Wells, and the witness frankly admitted his interest in this action.
As to the proof of failure of heirs of the James Wells who died in 1879, it rests solely upon the testimony of these two interested witnesses, Matthew S. Wilson and his sister. The alleged declarations of James Wells that he had no family of any kind, direct or collateral, were made in the presence of Matthew S. Wilson when he was between the ages of eight and twelve, or more than forty years ago. The other witness, his younger sister, heard the same declarations when she was between the ages of five and sixteen years. No doubt James Wells had no direct family, and so stated in the presence of these children, but it is doubtful from the evidence if his general statement that he had no family included collateral relatives. No attempt was made to find heirs of this James Wells in England or Wales, whence his nephew stated he was reputed to have come. I think, therefore, that the evidence was insufficient to warrant a judgment for the plaintiff, and the action was properly dismissed for failure of proof, and the judgment should be affirmed, with costs.
Smith, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.