Opinion of the Court, per FOLLETT, Ch, J. west one chain to the point or place of beginning, containing two acres, two rods and fourteen perches." The commissioners filed in the clerk's office a map of the lands partitioned, showing the part assigned to each, and known as No. 173. March 10, 1848, a final judgment was entered confirming the report of the commissioners, and in addition the parties conveyed to each other the lands set apart to each; Ann Stillwell and her husband and Jacobus Emmons by his guardian assumed to convey parcel No. 23 to John Emmons by a deed dated April 6, 1848, and duly recorded in Kings county April 8, 1848. John Emmons assumed to convey lot No. 23 to Charles H. Greenleaf by a deed dated September 30, 1848, and duly, recorded February 8, 1850. Charles H. Greenleaf assumed to convey an undivided half of this lot to James S. Butler by a deed dated July 27, 1877, and recorded September 17, 1877. Afterwards Charles H. Greenleaf died, having devised his real estate to Elizabeth Greenleaf, one of the present plaintiffs. Upon the trial before the court without a jury, the plaintiff recovered the possession of the premises, as tenents in common in fee simple, with $100 damages for the wrongful withholding, which was affirmed at General Term. The important question involved in this appeal is, whether the plaintiffs gave sufficient evidence of title to sustain a recovery in ejectment. Their evidence is solely documentary and consists of the judgment-roll in partition and the subsequent deeds already referred to. The defendants insist that the judgment was not competent evidence. It is unnecessary to consider the authorities discussing the conclusiveness of judgments, for they are so, only as between the parties and their privies, unless they are the result of proceedings in rem, and moreover the plaintiffs do not assert that the judgment is an estoppel in their favor and against the defendants, but their contention is that it is evidence of title and possession in the parties to it, liable like other evidence to be rebutted, but until overthrown sufficient to sustain a recovery in ejectment against defendants producing no evidence of title. A judgment in personam, like a deed or other muniment of title, in case it is Opinion of the Court, per FOLLETT, Ch. J. a link in the chain of the title of one of the litigants, is admissible in evidence as against the other, though a stranger to it. (Barr v. Gratz, 4 Wheat. 213; Webb v. Den, 17 How. [U. S.] 576; Buckingham v. Hanna, 2 Ohio St. Rep. 551; Davies v. Lounds, 1 Bing. [N. C.] 597-606; Freem. Judgt. 416; 2 Black. Judgt. § 607; 1 Whart. Ev. §§ 200, 733, 820 et seq.; 1 Green. Ev. § 538; 2 Taylor Ev. [8th ed.] § 1668.) The authenticity of the judgment was established by the record and it was clearly admissible as an evidence of title, unless the defendants' position can be sustained that neither it nor the subsequent deed from Emmons to Greenleaf were admissible because it was not shown that the parties to the judgment or to the deed had possession of the lands to which these documents relate. It is usually impossible to establish a very ancient possession of property by the testimony of persons having knowledge of the fact, and when a deed forming part of a chain of title is so ancient that there can be, in the nature of things, no living persons who can testify to acts of ownership by the grantor or grantee, it may be received in evidence without such proof. (Jackson v. Laroway, 3 Jehns. Cas. 283; Jackson ex dem. v. Luquere, 5 Cow. 221; Hewlett v. Cock, 7 Wend. 371; Ensign v. McKinney, 30 Hun, 249; Rogers v. Allen, 1 Camp. 309; Doe v. Pulman, 3 Ad. & El. [N. R.] 622; Malcomson v. O'Dea, 10 H. L. Cas. 593; Bristow v. Cormican, L. R. [3 App. Cas.] 641-668; Gardner v. Grannis, 57 Geo. 539; Whitman v. Heneberry, 73 Ills. 109; 1 Green. Ev. §§ 21, 144; 1 Whart. Ev. §§ 199-733; 2 Phill. Ev. [Edw. ed.] 477; Best's Ev. § 499; 1 Taylor's Ev. [8th ed.] $$ 87, 665.) While under this rule the judgment in partition and the subsequent deed to John Emmons were admissible in evidence without proof of contemporaneous possession of the land by the parties to the judgment and deed, yet they are not sufficient evidence of title of one who claims under them through mesne conveyances to recover in ejectment, without showing some subsequent or modern possession by the parties who have received later deeds which go to make up the plaintiff's chain of title. Statement of case. In the case at bar there is no evidence that the land in dispute was part of a larger tract possessed by some of the grantees in the plaintiff's chain of title. There is no evidence that John Emmons was ever in possession, or exercised an act of ownership over the land, except when he assumed to convey it to Charles H. Greenleaf. Nor is there any evidence that Greenleaf took possession under his deed or exercised any act of ownership, except when he assumed to convey an undivided one-half to Butler. These lands on the beach are incapable of being enclosed with fences and occupied like ordinary agricultural lands, but there is no evidence that they have been occupied for any purpose. It does not appear that grass or sand has been taken from them, or that they have been used as a means to approach the ocean for fishing or for any purpose. We think the evidence failed to establish title in the plaintiffs, and that the judgment should be reversed and a new trial granted, with costs to abide the event. All concur, except BROWN, J., not sitting. BERNARD BRADY, Respondent, v. THE MAYOR, Aldermen and By a contract for regulating and grading one of defendant's streets at a 132 415 144 67 * * Statement of case. not questioned, but it claimed on the trial non-compliance with this provision of the contract: "The street is to be regulated two feet below the grade where there is rock, and is to be examined by the surveyor before placing any filling thereon. * Any portion of the street not thus regulated and properly examined will not be received as finished." This defense was not set up in the answer. Defendant was permitted to give evidence, under objection that it was not admissible under the pleadings, which tended to show that in places rock was left nearer than two feet to the established grade. The court directed a judgment for plaintiff for the amount as certified, with interest. Held, no error; that defendant was not entitled to give evidence, or to go to the jury on the question of noncompliance with said provision of the contract as it was not raised by the pleadings, and that as the reception of the evidence was error, this court was precluded from considering it for the purposes of reversal. The specifications provided that the street was “to be regulated and graded, where required, in accordance with the plans and profile of the said street,” and other portions of the contract showed that the specifications were not necessarily to be exactly but substantially performed to the satisfaction of the commissioner of public works. It appeared that the surveyor gave to the contractor the grade to which the work was conformed, and he certified to the completion of the work as stipulated. Held, that defendant was precluded by the certificates given as required by the contract; and that conceding the evidence so given by defendant was properly received and could be considered, it did not affect plaintiff's right of recovery. The contract provided that the city should not be “precluded or estopped by any return or certificate" of any of its officers, made in pursuance of the contract, "from at any time showing the true and correct amount and character of the work." Held, that this provision did not have the effect to nullify defendant's agreement to be bound by the certificates of its officers as to performance, and did not affect the contractor's right to recover for the work done at the prices fixed, but that it simply reserved the right to challenge and to call upon the court to correct the certificates for error in these particulars: 1. As to the amount of the work, i. e., the number of yards of filling and excavation, etc. 2. As to the character of the work, i. e., that one kind of work had been estimated for another. Reported below, 26 J. & S. 184. (Argued March 8, 1892; decided April 26, 1892.) APPEAL from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 5, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court. Statement of case. This was an action brought by plaintiff, as assignee of John Brady, to recover upon a contract made by the assignor with defendant for regulating and grading Ninety-fifth street in the city of New York, from Tenth avenue to Riverside Drive. The facts, so far as material, are stated in the opinion. David J. Dean for appellant. Complete performance of the work specified in the contract is an imperative condition precedent to the right to payment. (Glacius v. Black, 50 N. Y. 145; Smith v. Brady, 17 id. 174, 185; Vanderzee v. Herman, 13 N. Y. Supp. 164; Lennon v. Smith, 124 N. Y. 578; Phelan v. Mayor, 119 id. 90; McIntosh v. Rector, etc., 120 id. 12; Avery v. Wilson, 81 id. 344; Catlin v. Tobias, 26 id. 217; Mead v. Degolyer, 16 Wend. 632; Norrington v. Wright, 115 U. S. 204; Nightingale v. Eiseman, 121 N. Y. 288; Reilly v. Mayor, etc., 111 id. 474; Bonesteel v. Mayor, etc., 22 id. 166; Cunningham v. Jones, 20 id. 486; Ibbotson v. Sherman, 10 J. & S. 477; Crane v. Knubel, 2 id. 443; McDonald v. Mayor, etc., 68 N. Y. 23; Smith v. City of Newburgh, 77 id. 130; Hodges v. City of Buffalo, 2 Den. 110; Peterson v. Mayor, 17 N. Y. 449.) Even if a substantial performance of the contract would entitle the plaintiff to recover, the question of substantial performance, on the evidence, was a question for the jury, and the exception to the denial of the request to submit the case to the jury is well taken. (Johnston v. De Peyster, 50 N. Y. 666; Phillips v. Gallant, 62 id. 256; Thomas v. Fleury, 26 id. 26; Smith v. Brady, 17 id. 189.) L. Laflin Kellogg for respondent. The court committed no error in directing a verdict in favor of the plaintiff on the first cause of action. There was no question of performance which could be rightly submitted to the jury. (Sweet v. Morrison, 116 N. Y. 32; Phelan v. Mayor, etc., 119 id. 86; Whiteman v. Mayor, etc., 21 Hun, 117; D. & H. C. Co. v. P. C. Co., 50 N. Y. 250; M. & P. R. R. R. Co. v. March, 114 id. 549; Byron v. Low, 109 id. 291; Mulhol land v. Mayor, etc., 113 id. 632; State v. Stevens, 71 id. SICKELS-VOL. LXXXVIL 53 |