The conclusion reached by me in this case is in accord with that of Mr. Justice Close that the “ Broken Lands ” were not included within the patent of 1636, although in Matter of City of N. Y. (Gerritsen Marine Park) (248 App. Div. 240) there was concurrence by me in the opinion of Mr. Justice Hagarty to the contrary. The determination in that case, as pointed out by Mr. Justice Close, is not res judicata here and, since there are new material facts, stare decisis is not applicable. The change in my views is largely due to the corrected translation of that part of the description in the patent from what was then conceded in the Gerritsen Marine Park case (supra) to be the correct translation, to wit, “ extending the length of a certain Kill coming from the Sea the most part Northerly till to the woods,” to the present translation “ stretching in length from a certain kil coming from the sea almost north into the woods * * *.” The translation, accepted by all in the Gerritsen Marine Park case (supra), fortified as it was by the description in the Nicolls confirmatory patent of 1667 and the finding in the arbitration of 1696, both then deemed to be accurate, readily invited the view that the westerly bounds was the Strom kill from the Sea north and, therefore, tended to justify the inference that the ocean was the southerly boundary of the land granted by the patent. This meant, of course, as urged by claimants, that the lands in dispute were within the patent of 1636.
But the corrected translation sets a new face on the situation. This new translation, to wit, “ stretching in length from a certain kil coming from the sea almost north into the woods and in width from a certain valley, included, almost west also into the woods ” *201suggests to me a construction different from the one outlined by Mr. Justice Close in his opinion, but with no change in result. “ Stretching in length from, a certain kil coming from the sea * * * ” means a “ stretching ” from some part of, or place on, the kill that comes from the sea. What part of, or place on, the kill is not stated. The “ kil coming from the sea ” describes the kill, but does not mean that the boundary starts from the sea whence comes the kill. There is nothing in this part of the description which indicates a definite place of beginning. But an inference as to where the place of beginning was may be made from the remainder of the description “ in width from a certain valley, included, almost west also into the woods.” These words not only indicate the width, but also the eastern boundary. Upon the conceded facts, the southernmost part of the valley was directly north of the head of what is now known as Mill creek, and thence the valley runs along the side of Bestafather’s kill. “ Almost west also into the woods ” describes land which is also north of Mill creek. There is no description of width south of Mill creek. If the width of the land granted was entirely north of Mill creek, then the length must have begun north of Mill creek stretching “ almost north into the woods.” The Hubbard map, though crude,, made ten years after the patent, shows Mill creek running about east and west and joining the Strom kill on the west. Since a place on what is conceded to be the Strom kill is where the stretching begins, and the entire width is north of Mill creek, and the valley begins on the north side of and about at Mill creek, it may be fairly said that the “ stretching in length from a certain kil coming from the sea almost north into the woods ” meant that the length of the grant was measured from where the Strom kill meets Mill creek and thence “ almost north into the woods,” meaning probably the direction of the Strom kill. From all this it may be inferred that the width on the south was from a place where the Strom kill and Mill creek meet over to the valley or Bestafather’s kill, and that the length was from between those points on Mill creek “ almost north into the woods.” Thus Mill creek was the southerly boundary. Of course, this is not by any means conclusive, nor completely convincing. But it does give a sensible interpretation to a description obscured by its sparseness.
That Mill creek was intended as the southerly boundary and that no part of the grant extended below that creek is also strongly indicated by (1) the absence of any boundary to the east below the valley, which means below Mill creek, although Hubbard’s map shows a five-mile stretch from Mill creek south to the ocean, consisting of sand hills and Canarsie Bay on the east; and (2) *202the failure expressly to name the ocean as the southerly boundary. In this connection it may be noted that in the patents to Gravesend adjoining to the west, the main “ ocean sea ” is given as the southerly boundary.
Although my colleague, Mr. Justice Close, has written an extensive opinion, I take the liberty of making several additional observations in connection with items which have a different significance in light of the new translation and tend to support the conclusion reached by him.
Reference is made by Mr. Justice Close to the grant of Bergen’s Island by Governor Kieft to Onderhil and by the Indians and Onderhil to Spicer and by Spicer’s heir to Elbertsen in 1665. Although the arbitration of 1696 indicated that the westerly bounds of the early grant was the Strom kill beginning at the sea, from which it was inferred that the “ Broken Lands ” were included in the original patent, the arbitrators, nevertheless, found the patent from the Dutch Governor Kieft to Onderhil of Mutelar’s Island (Bergen’s Island) and conveyed by Onderhil to Elbertsen. There was no reference to the early Dutch grant in this connection. Bergen’s Island, according to the description in the Kieft patent, was two creeks from Long Island, therefore, a part of what is called the “ Broken Lands.” A recognition of this patent by the arbitrators, it seems to me, is inconsistent with a holding that the “ Broken Lands ” were included in the early Dutch grant. It tends to support the view of Mr. Justice Close that the early Dutch grant did not go below Mill creek.
The description of Barren Island, also called the “ Broken Lands,” conveyed by the Indians to Tilton and Spicer is not without significance. It is as follows: “a, Certain Island, commonly called by the Indians Equindito; And by the English the broken Lands lying and being near Unto the Westermost End of Long Island, and to the Southside thereof, And 'for the most part Inviorined with the Main Ocean Sea, which on the westermost part thereof branches itself into a river running Northerly, that is to say, to the land sometime belonging to Hugh Garratson, And aliso into a river run running Easterly.” It thus appears that the “ Broken Lands ” were surrounded for the most part with the “ Main Ocean.” This includes the south side and the east side. On the west is a river running northerly, i. e., Strom kill, and on the north is a river running easterly (Mill creek). It also appears that the river running northerly goes to the land “ sometime belonging to Hugh Garratson.” I assume that this is one of the Gerritsen family, through whom the original Dutch patent comes. It thus seems that the Strom kill ran up to Garratson’s land and thence ran easterly a river which also was a branch of the ocean. This *203suggests that Garratson’s land did not begin at the ocean. It also tends to support the view expressed by Mr. Justice Close that there were two branches of the “ Ml coming from the sea.”
In the Nicolls patent to the Flatlands freeholders of 1667 there is a description difficult to follow and understand, a part of wMch is as follows: “ from their Westerne Bounds wch begins at a Certaine Creek or Kill comonly called ye stromme Kill they Stretch to ffirkins or varckens Hook.” On Hubbard’s map there is a part outlined in red indicating the boundaries of the grant wMch claimants assert was made under the original Dutch patent. Outside of these red lines to the east thereof and to the east of Bestafather’s kill will be found the words “ Varkin’s Hook.” From this part of the description and from a general understanding of the balance thereof, it is fair to infer that this grant to Flatlands was north of Mill creek and did not include the “ Broken Lands.” In tMs grant to Flatlands, as in the original Dutch patent, there were no bounds by the ocean. The ocean is not mentioned. It is hardly likely that two such large islands would be included within the words “ Together wth all Havens Harbours Creekes Quarryes woodlands Meadow Ground Reedland or Valley of all Sorts Pastures Marshes Waters Rivers Lakes fishing hawking hunting & fowling & all other profitts Comodityes Emolumts & Hereditamts to ye said Lands & prmisses (wthin ye said Bounds & Lymitts sett forth belonging or in any wise apperteyning,” as is claimed by appellants.
There are a number of items upon which appellants may call to sustain their view. The Dongan grant of 1685 indicates that the ocean was the southern boundary of Flatlands, wMch seems to be presently conceded. The various grants of Gravesend were made, all of wMch were bounded on the south by the ocean. In the arbitration of 1696 it was found that the western boundary of Elbertsen’s land, granted by Governor Nicolls in confirmation of his purchase from Gerritsen growing out of the original Dutch grant, joins to the easternmost part of the Gravesend town patent which ran to the ocean. In the Nicolls patent of 1667, the description was followed by the words “ TOGETHER with all the lands, Soyles, Woods, Meadows, fflats, Pastures, Marshes, Creekes, Waters, Lakes, flashing, Hawking, Hunting and Howling, And all other profits, Commodities, Emoulments, and hereditaments to the said Parcell or Tract of land <fc premises belonging or in anywise, appertaining with their and every of their Appurtenances and of every part and parcell thereof 1” TMs it is said, refers to the “ Broken Lands ” and, at least, indicates what it was thought that the original Dutch patent granted. It will be remembered ' *204that in 1664 the Indians conveyed Barren Island or the “ Broken Lands ” to Tilton and Spicer and that an heir of Spicer conveyed to Elbertsen in 1681. It appears that in 1679 Elbertsen claimed title to the island in an action which he brought for trespass. There are also some other items which, appellants argue, indicate that the “ Broken Lands ” were included within the original grant. However, whatever doubt may be thrown on the conclusion reached by the trial court by reason of these various items submitted by appellants, they are not sufficient to overcome the construction placed upon the original patent adopted by the trial court, starting with the corrected description as a basis.