Trustees of Freeholders & Commonalty of East Hampton v. R. E. Dowling Realty Corp.

282 A.D. 966, 125 N.Y.S.2d 780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1953
• Status: Published

Opinion

-In an action in ejectment involving title to land in the Eastern Plains in the town of East Hampton, Suffolk County, both sides moved for a directed verdict at the end of the case. The court discharged the jury and took the case under advisement, and thereafter granted plaintiff’s motion and denied defendants’ motion. Defendants appeal from the judgment entered thereon. Judgment reversed on the law, with costs, and complaint dismissed, with costs. The findings of fact contained in the court’s memorandum decision are affirmed. Plaintiff claims the Dongan Charter of 1686 as its original source of title. That charter granted to the plaintiff “ all * * s"' parcell or pareells tract or tracts of land * * 6 [in the town of Bast Hampton] not yet taken up or appropriated to any particular person or persons”. There is no proof in the record whereby it can be determined whether the land from which plaintiff seeks to eject defendants, situated between defendants’ land and the mean high water mark of the Atlantic Ocean, was or was not “ taken up or appropriated ” at the time the Dongan Charter was granted; nor can it be determined where any of the lands in the Eastern Plains then “ taken up or appropriated ” were actually situated. The plaintiff, therefore, has failed to sustain the burden of proving its title. (Jarvis v. Lynch, 157 N. Y. 445; Beers v. Hotchkiss, 256 N. Y. 41.) Present — -Adel, Acting P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ.