SECOND DEPARTMENT, DECEMBER TERM, 1892. length of the vessel, for which a depth of sixteen feet was to be given. In the absence of this undertaking there was no proof of negligence. The ledge of rocks at the bottom of the East river, some sixty feet from the dock, would ordinarily be without the scope of the defendants care and duty to remove. When they undertook that a vessel of 190 feet in length and sixteen feet draft could unload at the dock, it was their duty to know that the undertaking was based upon the fact represented, and the omission to know this was negligence. The case should have gone to the jury under the evidence. The exceptions shoul, therefore, be sustained and a new trial granted, with costs to abide event. DYKMAN and PRATT, JJ., concurred. Exceptions sustained and new trial granted, costs to abide event. THEODORE F. FREUND, PLAINTIFF, v. CHARLES C. OSTRANDER, DEFENDANT. Title by adverse possession· — a purchaser bound to accept it —Code of Civil Procedure, secs. 368, 369. A good title by adverse possession is made out by force of sections 368 and 309 of the Code of Civil Procedure, as against a prior outstanding title in a grantee who has died leaving no infant heirs, by one who, having entered into possession under a written instrument purporting to be a conveyance of the premises, has been in actual continuous possession thereof for more than twenty years under such instrument under one claim of title, and while in possession has erected and maintained buildings and otherwise improved the land under claim of title. Such adverse possession comes within the exception stated in section 368 of the Code of Civil Procedure, to the rule therein laid down, that mere possession is presumed to be under the legal title, and that occupation by another is deemed to have been in subordination to the legal title, "unless the premises have been held and possessed adversely to the legal title for twenty years before the com mencement of the action A title thus acquired by adverse possession must be accepted by a purchaser under a contract which provides that "the party of the second part shall not refuse to take title to said premises by reason of the party of the first part having, or claiming to have, title by adverse possession, unless that the party of the first part does not hold a good title by adverse possession." SECOND DEPARTMENT, DECEMBER TERM, 1892. SUBMISSION of a controversy on an agreed statement of facts, the question presented by which was whether the defendant should be compelled to accept a deed of certain premises in the county of Suffolk, under a contract between the parties dated March 7, 1892, whereby the plaintiff agreed to sell, and the defendant to purchase, the premises in question for the stipulated price of $6,000, $100 of which was paid at the time as a deposit, the deed to be delivered on April 6, 1892. It appears from the agreed statement of facts, in addition to the facts stated in the opinion, that on the 6th day of April, 1892, as provided in the afore-mentioned contract, the plaintiff attended at the time and place provided for the delivery of the deed mentioned in the contract, and thereupon tendered an executed deed containing the usual full covenants, conveying and assuring to the defendant the title to said premises in fee simple, and demanded the balance of the purchase-money due. That thereupon the defendant refused to pay the balance of said purchase-money, or to receive said deed on the grounds that the plaintiff held no title to said premises either by adverse possession or otherwise. The plaintiff demanded judgment, that defendant specifically perform said agreement and accept the deed tendered by the plaintiff, and pay to the plaintiff the balance of said purchase-money, with interest from April 6, 1892, besides the costs of this action. Defendant demanded judgment that the court adjudge that the plaintiff has not a good title to the premises hereinbefore described by adverse possession, or otherwise; that the defendant be relieved from accepting the deed tendered by the plaintiff; that the plaintiff repay to the defendant the $100, his said deposit, and interest from March 7, 1892, and that the plaintiff pay to the defendant his expenses incurred herein, besides the costs of this action. Chapter 475 of the Laws of 1890, to which, as is stated in the opinion, the deed under the contract in question was to conform, is the act providing for short forms of deeds and mortgages. Elliott J. Smith, for the plaintiff. George H. Bruce, for the defendant. SECOND DEPARTMENT, DECEMBER TERM, 1892. BARNARD, P. J.: The plaintiff and his grantors have occupied the premises in question continuously since January, 1862, under operative conveyances. The several owners, while in possession, have erected and maintained buildings and otherwise improved the lands under their claim of title. In March, 1892, the plaintiff agreed to sell the land to the defendant by deed, according to the provisions of chapter 475, Laws of 1890. The agreement contained this clause: "And it is mutually understood and agreed, by and between the parties to this contract, that the party of the second part shall not refuse to take title to said premises, by reason of the party of the first part having, or claiming to have, title by adverse possession, unless that the party of the first part does not hold a good title by adverse possession." The record of deeds in the clerk's office of Suffolk county show a record of a deed conveying the premises in question by Catherine Fleet to Horace Greely, dated April 5, 1851, and recorded June 14, 1854. Horace Greely died leaving no infant heirs. The plaintiff's title is good under section 369 of the Code. The entry of the plaintiff and his grantors was under a claim of title founded on a written instrument as being a conveyance of the premises in question, and there has been a continued occupation and possession of the premises included in the deed for over twenty years under the same claim. By section 368 of the Code mere possession is presumed to be under the legal title, and occupation by another is deemed to have been in subordination to the legal title, "unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action." Such an adverse possession is proven by the long occupancy under a series of warranty deeds from the beginning of 1862 to the present time. In Price v. Brown (101 N. Y., 669) it did not appear that any of the plaintiffs grantors were ever in the actual possession of the lands. A title acquired by adverse possession is as good as one obtained by grant. (Sherman v. Kane, 86 N. Y., 57.) There should be judgment for the plaintiff upon the submitted case, with costs. PRATT, J., concurred. Judgment for plaintiff upon submitted case, with costs. SECOND DEPARTMENT, DECEMBER TERM, 1892. HENRY H. SNOW, RESPONDENT, v. JOSEPH PULITZER, Eviction, rendering a building unsafe by the demolition of an adjoining building both owned by the same person — liability to a tenant. Where the owner of certain premises purchases an adjoining lot and building subject to an outstanding lease, and by demolishing a building on the land previously owned by him renders the adjoining leased building unsafe and thereby destroys the value of the outstanding lease, and the public authorities compel the taking down of both buildings, which is done by the owner accordingly, this is an eviction for which the tenant may recover damages. This is so, even if each building had an independent wall. Proof of acts which rendered the premises unsafe, so as to cause an actual removal Such act of eviction is the act of the owner, even though done by a contractor. APPEAL by the defendant, Joseph Pulitzer, from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 9th day of February, 1892, for $5,675.34, damages and costs, in favor of the plaintiff, Henry H. Snow, and against the said defendant, and from an order denying the defendant's motion, made upon the minutes of the judge presiding at the trial for a new trial, entered on the 29th day of February, 1892. The action was brought to recover damages for the destruction of a building leased and occupied by the plaintiff, and for his consequent eviction therefrom by the defendant. The case was tried at the Kings County Circuit, and resulted in a verdict in favor of the plaintiff for $5,200, on which the judgment appealed from was entered. John M. Bowen and J. Gerard Buckley, for the appellant. 66 329 142a 263 SECOND DEPARTMENT, DECEMBER TERM, 1892. BARNARD, P. J. : On the 5th of January, 1886, Helen A. French granted a lease to the plaintiff of certain premises in the city of New York to be used for the sale of confectionery. The lease expired on the 1st of May, 1889. The plaintiff moved into the premises on April 1, 1886, and expended money thereon to fit it for his business In April, 1888, Mrs. French sold to the defendant the premises leased to plaintiff, but subject to it, and also other adjoining premises outside of those leased to plaintiff. In August, 1888, the defendant demolished the buildings next to those occupied by plaintiff. The removal of the walls on the south and west sides of the plaintiff's premises rendered the same unsafe and dangerous, and the value of the remainder of plaintiff's lease was destroyed entirely. The history of the removal of the walls was this: Mr. Pulitzer wished to erect a new building. He commenced upon the high building next plaintiff to take it down. When two stories had been removed it was certain that the plaintiff's building would fall. The superintendent of buildings then obtained an order to take down both buildings, which was done by the defendant under the decree for the demolition. This was proof of an eviction. As between Mrs. French and the plaintiff he had a right to have his leased buildings stand to the end of the lease. Mrs. French had no right to destroy his lease by taking down the lateral support, even if each building had an independent wall, which was disputed. The defendant took Mrs. French's title with the same duty imposed on him as existed against his grantor. The acts which rendered the premises unsafe, so as to cause an actual removal of plaintiff therefrom, were sufficient proof of eviction. (Dyett v. Pendleton, 8 Cow., 727; approved in Boreel v. Lawton, 90 N. Y., 293.) The act of eviction was an act of defendant, even though done by a contractor. The plaintiff had a right to his possession from the defendant, and any act done or caused by defendant, which drove the plaintiff out of his possession, was an eviction. The damages were proper. First, the court permitted a recovery for the value of personal property destroyed. Second, loss of profits; and, third, difference between the cost of fixtures put in at the commencement of lease over and above the amount allowed by Mrs. French therefor. The item seriously contested is the item of |