(dissenting). Defendant rests his entire case as to the westerly four feet on proof of occupation since 1863. The occupants held without color of title until 1913, when a grantor who had received a deed of thirty-three feet frontage purported to give a deed of thirty-seven feet. The devisees of Fogarty have refused to quitclaim their interest. Two of these devisees, being remainder-men, not in possession, are now under disability. So far as the evidence shows, there may have been disability as to all or part of the owners continuously since 1863. The defendants should negative this possibility. (Woolley v. Newcombe, 87 N. Y. 605.) A purchaser is not required to accept this title. (Shriver v. Shriver, 86 N. Y. 575; Heller v. Cohen, 154 id. 299; Simis v. McElroy, 160 id. 156; Freedman v. Oppenheim, 187 id. 101; Crocker Point Assn. v. Gouraud, 224 id. 343, 350.) At the time the deed was tendered evidence even of occupation had not been collected, and was not exhibited to plaintiff. Even if this proof was sufficient to require plaintiff to accept, the fact that it had not been collected and definitely disclosed to him would justify his refusal to complete the transaction. (Trimboli v. Kinkel, 226 N. Y. 147.)
I dissent, and vote for reversal.
Judgment affirmed, with costs.