Judgment and orders affirmed, with costs. This court decided
in the ejectment action (Town of Oyster Bay v. Stehli, 169 App. Div. 257) that the description in the deed of 1667 from the Indians to Underhill did not include the sound beach between the meadows and high-water mark, and that, therefore, this beach passed to the town under the later Andros patent. We reversed the contrary judgment of the Trial Term in favor of the defendant and granted a new trial. The defendant appealed to the Court of Appeals where the judgment of this court was affirmed and under defendant’s stipulation judgment absolute was entered against him (221 N. Y. 515). That ejectment action involved a strip of beach 200 feet long, west of the beach which is the subject of this present action. The town of Oyster Bay alleging that this former adjudication was res judicata in the case at bar, a separate trial of the issue was had at Trial Term where the judgment was in favor of defendant (Stehli v. Town of Oyster Bay, 111 Miss. Rep. 355), but upon appeal the judgment was reversed (199 App. Div. 940), this court holding “ that the prior judgment is not a bar as to the questions of adverse possession, or regarding the possibility of prior grants as reserved in the Andros patent. The case, therefore, now will stand for trial on the pleadings.” Upon the trial of the action under this last decision the court submitted the question of adverse possession and whether or not the present beach occupied the same location as in 1667 to the jury, and their verdict was against the plaintiff on both these issues. The learned trial justice, following the opinion of this court in the former case, interpreted the deed of 1667 from the Indians to Underhill as not including the beach in dispute, which adjoins and is part of the beach involved in the former litigation, and directed a general verdict for the defendant. We see no reason for interfering with the judgment entered upon the verdict. If the deed to Underhill included the beach, the plaintiff Stehli made out a case. On the contrary, if the deed in question did not include the beach, then it passed to the town under the Andros patent. Rich, Jaycox, Kelby and Kapper, JJ., concur; Kelly, P. J., concurs in separate opinion.