This action was brought to recover possession of certain lands alleged to be held by defendant, subject to certain permanent leases, for non-payment of rent. The defense was a general denial.
*28On tbe trial before tbe referee certain leases were produced purporting to have been given prior to 1820, to wit, 1808 and 1815, to one French and others. Evidence was given tending to show on information that the witnesses to the leases were dead. The witnesses then testified as follows: “ By inspection of many early leases of same character have become familiar with the signatures of those writers and think them genuine. Knew Stephen Van Rensselaer, grantor named, and saw him write; believe signature genuine; S. Van Rensselaer is dead.” The leases were then offered in evidence. The objection was taken that there was no proof of execution by grantor or of delivery of deeds. The objection was overruled and defendant excepted. The referee held that the leases proved themselves as an ancient record to which also the defendant excepted.
. An ancient deed is admissible in evidence, if it is made to appear that it comes from such custody as to afford a presumption that it is genuine and that it is not subject to suspicion by reason of interlineations, erasures or otherwise. It may be also admitted upon proof of thirty years’uninterrupted possession under it. (Clark v. Owens, 18 N. Y., 437; 1 Gr. Ev. §21 and note; Ridgeley v. Johnson, 11 Barb., 527; Lyon v. Adde, 63 id., 89, 104; Hewlett v. Cock, 7 Wend., 371, disapproving of Jackson v. Blanshan, 3 Johns., 298.)
In this case there was no such proof of possession under the leases as the law requires to make the leases competent evidence. Nor was there any evidence of the custody of the lease from the time of its date to the day of the trial, or any portion of that time. In fact when the plaintiff rested his case nothing had been proved which entitled the leases to be received in evidence to support plaintiff’s claim of title to the premises in controversy.
This action was begun in 1861 or 1862. The trial of the issues joined was begun in 1864 and concluded in 1879. The leases and other documentary evidence are not printed in full. The abstracts do not even contain a description of the property conveyed. There is nothing in the evidence by which the lands described in the complaint can be identified. Doubtless the return is imperfect. However that may be, we think the exceptions to the admission of the leases in evidence were well taken.
*29Other exceptions were taken and. discussed. They refer to the findings of the referee on the facts and the want of evidence to sustain them. As a new trial will take place and evidence will be offered anew, it will not profit the parties to discuss those exceptions. If they are well founded the plaintiff can obviate them if possible upon such new trial.
The judgment must be reversed and a new trial granted, costs to abide the event. The defendant asks for restitution of possession, but the case does not show he has been deprived of the possession. The judgment must be reversed.'
Present — Learned, P. J., Bockes and Boardman, JJ.Judgment reversed, new trial granted, referee discharged, costs to abide event.