Judgment reversed upon the law and the facts, with costs, judgment directed in favor of plaintiff in the sum of $500, with interest from October 10, 1923, and the sum of $65, expense of examining title, and counterclaim dismissed, with costs. The State of New York took possession of the property under the judgment of December 9, 1870, which made its rights by escheat subject to the rights of unknown heirs. The State did not, therefore, enter into possession adversely to the unknown heirs. The action of Milhauser v. Unknown Heirs at Law of William A. Kinnilly and People of the State of New York [-----], is still pending. The order of discontinuance was unauthorized. (Civ. Prac. Act, § 240.) With the claim, asserted in this action by Mary Byrne that she is the sole heir of Kinnilly, still outstanding, plaintiff should not be compelled to take title. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and appropriate conclusions will be made. Lazansky, P. J., Kapper, Hagarty, Carswell and Scudder, JJ., concur. Settle order on notice. [128 Misc. 439.]