(concurring):
I tried the original ejectment action (Town of Oyster Bay v. Stehli) in 1912 and directed a verdict for the defendant, holding that the deed from the Indians in 1667 to defendant’s predecessors in title included the beach which was the subject of the litigation in that case. The beach in the case at bar is a continuation of the beach involved in the former action. If it was conveyed prior to the date of the Andros patent to the town, then it was not *729included in the lands granted by that patent. I based my judgment upon the decision of Mr. Justice Jaycox in Jacob v. Town of Oyster Bay (73 Misc. Rep. 283; affd., upon opinion at Special Term, 155 App. Div. 913), which involved this same sound beach to the west of the locus in quo; also upon Roe v. Strong (119 N. Y. 316, 321); McRoberts v. Bergman (132 id. 73); Dosoris Pond Co. v. Campbell (25 App. Div. 179, 180; affd., 164 N. Y. 596). The town appealed to this court and the judgment was reversed and a new trial ordered, this court holding that the deed from the Indians above referred to did not include the strip of beach between the meadow and the sound and that, therefore, the beach passed to the town under the Andros patent (169 App. Div. 263). Instead of taking the new trial the defendant Stebli appealed to the Court of Appeals, stipulating for judgment absolute in case of affirmance. The Court of Appeals affirmed the judgment without opinion (221 N. Y. 515). In the original case I held as matter of law that Mr. Stehli had not proved title by adverse possession. He did not appeal from the judgment. In the present case, on what I think were practically the same facts, the question of adverse possession was submitted to the jury and their verdict was in favor of the town. I think the plaintiff in the case at bar must depend upon the interpretation of the Indian deed of 1667 — if that deed did not include the beach I cannot see how he can succeed. Whatever my own views upon the subject may be, I am bound by the interpretation of the description in the deed by this court affirmed by the Court of Appeals, not because the’ question is res judicata so far as the locus in quo in this action is concerned, but because I think I must follow the interpretation of the appellate courts. I, therefore, concur to affirm the judgment and orders. Judgment and orders unanimously affirmed, with costs.