In this case the people seek to recover part of the property held by Trinity church in this city. The complaint claims the property as belonging to them, and avers that they were possessed thereof on 1st January, 1856. The answer denies the allegations set up in the complaint, and also avers that no title accrued to the people within forty years, and also that the defendants acquired title in 1786, and have since been in possession thereof.
Upon the trial the plaintiffs proved the occupancy of the premises by some of the defendants, in separate parcels, and rested. The court, on the defendants’ motion, dismissed the complaint. From that judgment the plaintiffs appealed. The ground on which the plaintiffs claimed to maintain the action, on this evidence, was that the people were the presumptive *548owners of all lands in the state, until title in another was shown, and that in ejectment it was not necessary for the people to prove title, in the first instance. The cases of The People v. Van Rensselaer, (5 Selden, 291,) and The People v. Arnold, (4 Comst. 508,) are relied on to establish this proposition. The first of these cases was brought to recover vacant lands, and in that case it was said it was enough for the people, in the first instance, to prove that the premises in dispute were vacant and unoccupied within the 40 years, and that the defendant subsequently entered and made claim to them. The latter case was on demurrer, and did not present the question now before the court. The only question there was as to the sufficiency of the answer, and that pleading was held to be good. The answer in the present case appears to have been drawn after that one.
In Wendell v. The People, (8 Wend. 183,) the premises claimed were proved, by the attorney general, to have been vacant and unoccupied within 40 years previous to the trial, and there the presumption in favor of the state, was held to be sufficient to put the defendants on their defense.
In The People v. Denison (17 Wend. 312) the same rule was adopted, and the court held that such proof of the premises being vacant was sufficient, in the first instance. But in no case to which we have been referred has such presumption of title been considered sufficient, without such proof of the lands being vacant within the period of limitation. If this is necessary in regard to unoccupied lands, to warrant the presumption of title in the state, without proof of title, how much more necessary to require the state to show sorqe title, or the absence of any possession by others within 4Q years, where, in order to maintain the action, it is necessary for the plaintiffs to prove that the defendants were occupying the property as tenants of a third party. Where proof is furnished of a tenant being in possession, the presumption is a fair one that such possession is legal; and until the plaintiffs show some right to the possession within 40 years, they do *549not furnish sufficient evidence to dispossess the defendants of the property claimed.
[New York General Term, December 13, 1859.In The People v. Van Rensselaer, above referred to, Judge Willard says, “ At the time the counsel for the people rested the case, there was no sufficient evidence before the court to entitle the plaintiffs to recover, or to require the defendants to be put upon their defense. First, there was no proof that the premises were vacant,” &c.
It is apparent that in that case such evidence was deemed necessary before the presumption of title in the people could be resorted to against the defendant in possession of, or even claiming, the property. On the trial of this case, no evidence of title, or of vacant possession, was offered by the plaintiffs. One or the other was necessary, to warrant a recovery, and the court was not in error in dismissing the complaint, for want of such evidence.
The judgment should be affirmed.
Roosevelt, Sutherland and Ingraham, Justices.]