There seems to be no room to doubt from the evidence above outlined that the parties to the Scott deed understood that the premises in dispute were a part of the meadows theretofore allotted to and then owned by individuals. However, the language of the exception requires that both allotment to and ownership by individuals be shown. The defendants are unable to trace a paper title to one of the allottees, and, of course, cannot show, what possibly may be presumed, that the allottees took possession. The so-called Farrett patent of 1641 and the Indian deed of 1640 did not convey title; but titles to land in the town of Southampton have their origin in the Andrews patent of 1676 confirmed by the Dongan patent of 1686. Under those grants, the title to the uplands and meadows vested in the corporate body in trust for the original proprietors. Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1, 22 N. E. 387. However, both the Andross and the Dongan patents purport to be confirmatory of existing rights, and the Andross patent contained the recital:

"Whereas there is a certaine Towne in the East Riding of Yorkshire upon Long Island commonly called and knowne by the name of South Hampton," etc.

That charter was evidently granted to secure from the town recognition of the authority of the Duke of York. It appears that an order was made by the general court of assizes under Governor Nicolls in 1670, requiring the towns of Southampton, Southold, and Oyster Bay to give their reasons why they had delayed having their grants or patents renewed or confirmed. The rights of the original settlers were recognized and confirmed by the Andross and Dongan charters, and any divisions of the common lands made prior thereto do not appear therafter to have been questioned. However, in view of the fact that under the Andross and Dongan charters the legal title vested in the body corporate and not in the equitable owners, it would seem that partition could not be made as among tenants in common, but that a transfer by the holder of the legal title was necessary to vest title in the allottees (see Sanger v. Merritt, 120 N. Y. 109, 24 N. E. 386); and it may well be doubted whether land could be transferred by parol after the Andross charter. The English statute of frauds (St. 29 Car. II, c. 3) took effect June 24, 1677, and it seems that there was then in force in the colony of New York a similar statute. The Duke of York's laws, which were said to have been promulgated at Hempstead on March 1, 1665, and copies transmitted to the several ridings constituting the shire of Yorkshire, provided:

"That henceforth no Sale or alienation of Houses and Lands within this Government shall be holden good in Law except the same be done by Deed in writing under hand and Seal and delivered and possession given upon part in the name of the whole by the Seller or his Attorney so authorized under hand and seale, unlesse the said deed be acknowledged and recorded according to law."

See 1 Colonial Laws (Ed. of 1894) pp. 6-30. And that provision was re-enacted by chapter 8 of the Colonial Laws of 1684, Id. 148. It is unnecessary now to determine the effect of those laws, because the evidence showing the acts of ownership exercised as far back as

a grant. Roe v. Strong, 119 N. Y. 316, 23 N. E. 743; Id., 137 N. Y. 592, 33 N. E. 743. It follows, therefore, that the learned trial justice was justified in holding that the premises in dispute were excepted from the conveyance of 1861, and that the quitclaim deed of 1880, conveying "undivided lands," was at most only confirmatory of the earlier deed.

Moreover, the defendants' evidence tended to show an adverse possession for 20 years under a claim of title. While there are some cases in the Court of Appeals which seem to be opposed to this view, I think the defendants have made out a case of technical adverse possession under the statute. Wheeler v. Spinola, 54 N. Y. 377, Price v. Brown, 101 N. Y. 669, 5 N. E. 434, and Mission v. Cronin, 143 N. Y. 524, 38 N. E. 964, involved somewhat similar land, but not the same facts, if I rightly understand those cases. The first case involved the annual removal of a load or two of what was called "thatch," the second case involved what was characterized by the court as an occasional "foray for thatch," and in the last case the one claiming title had only surveyed the land, marked boundaries, and from time to time cut trees. In McRoberts v. Bergman, 132 N. Y. 73, 30 N. E. 261, the owner of the upland who had removed sand from the beach and cut grass from the salt meadow was allowed to maintain ejectment on the ground that his right of possession was superior to the defendants'. The evidence in this case shows more than an occasional "foray for thatch." It shows a regular, open, and notorious use of the land, and, in fact, the only use for the purposes of husbandry of which it was susceptible. Section 370 of the Code of Civil Procedure provides:

"For the purpose of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases: (1) Where it has been usually cultivated or improved. (2) Where it has been protected by a substantial inclosure. (3) Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry, or for the ordinary use of the occupant."

I do not think the words "cultivated or improved" should be used in a technical or narrow sense. The purpose of the statute was doubtless to require that the possession should be visible, open, notorious. There is no doubt that every farmer in the locality of this salt meadow understood who claimed to own it. "To cultivate is defined, 'to improve the product of the earth by manual industry.' When speaking of improved land, it is generally understood to be such as has been reclaimed, is used for the purpose of husbandry, and is cultivated as such, whether the appropriation is for tillage, meadow, or pasture." Clark v. Phelps, 4 Cow. 190–203. That case dealt with another statute, but the quotation is appropriate to this. The land in question is not susceptible of being tilled. Doubtless only the natural grass will grow upon it. Unless annual cutting and carrying away of that grass for purposes of husbandry constitutes cultivation or improvement of the land within the meaning of the Code, it is not possible ever to acquire adverse possession of such land, no matter how notorious the possession in fact may be. The defendants got hay, not

"thatch," from this meadow. They doubtless used that hay for fodder or bedding. Doubtless the annual cutting of the grass improved the crop, at least it made it possible to get a crop, which would be difficult if the grass were not cut regularly. That was the only improvement practicable, at least for agricultural purposes. Had this been an upland meadow, no one would doubt that mowing it annually and taking away the grass were enough to constitute adverse possession. A good farmer might fertilize his meadow lands and regularly break them up; but he would still have adverse possession of them within the meaning of the statute, if he merely cut and carried away the grass. This record suggests, what I understand to be the fact, that the farmers of Long Island regard their salt meadows as more valuable and the use of them more important than was evidently made to appear in some of the cases hereinbefore cited. It appears that the salt meadows were the first lands allotted by the early settlers, and it seems to me that acts of ownership sufficient to give rise to a presumption of a valid grant ought to be sufficient, if under a paper title, to constitute a technical adverse possession. The judgment should be affirmed.

Judgment and order affirmed, with costs.

All concur.

PEOPLE v. FRIEDMAN.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.)

1. HEALTH (§ 37*)-REGULATIONS.

Accused kept a tailor shop on the ground floor of a four-story building, the upper stories of which were occupied as a tenement house, and had in his possession about a quart of naphtha or gasoline for cleaning garments. Tenement House Act (Laws 1901, p. 900, c. 334) § 40, as amended by Laws 1903, p. 406, c. 179, § 25, prohibits any tenement house, or part thereof, from being used to store any combustible article, or to store or keep feed, straw, feathers, rags, etc. Held that, while accused's act was within the strict letter of the statute, it was not within its spirit, and was not an offense thereunder.

[Ed. Note. For other cases, see Health, Dec. Dig. § 37.*]

2. STATUTES (§ 241*)-CONSTRUCTION-PENAL STATUTES.

A penal statute should be construed more strictly than a contract. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]

3. HEALTH (§ 32*)-STATUTES.

Tenement House Act (Laws 1901, p. 900, c. 334) § 40, as amended by Laws 1903, p. 406, c. 179, § 25, prohibiting the using of a tenement house for storing any combustible article, etc., or for keeping or storing feed, feathers, rags, etc., must be strictly construed.

[Ed. Note. For other cases, see Health, Dec. Dig. § 32.*]

Appeal from Court of Special Sessions of City of New York. Isidore Friedman was convicted of violating Tenement House Act (Laws 1901, p. 889, c. 334) § 40, as amended by Laws 1903, p. 395, c. 179, and he appeals. Reversed.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Charles M. Davenport, for appellant.

Peter P. Smith, Asst. Dist. Atty., for the People.

HIRSCHBERG, P. J. The appellant has been convicted of the crime of violating the provisions of section 40 of the tenement house law (chapter 334, p. 900, of the Laws of 1901, as amended by chapter 179, p. 406, of the Laws of 1903). The section, as amended, reads as follows:

"Sec. 40. Combustible Materials.-No tenement house, nor any part thereof, nor of the lot upon which it is situated, shall be used as a place of storage, keeping or handling of any combustible article except under such conditions as may be prescribed by the fire department, under authority of a written permit issued by said department. No tenement house, nor any part thereof, nor of the lot upon which it is situated, shall be used as a place of storage, keeping or handling of any article dangerous or detrimental to life or health, nor for the storage, keeping or handling of feed, hay, straw, excelsior, cotton, paper stock, feathers or rags."

At the time charged in the information, the defendant was an occupant of premises in the borough of Brooklyn, on the ground floor of which he maintained a ladies' tailoring establishment. The building is of four stories; the upper floors being occupied as a tenement house. He had in his possession about a quart of naphtha or gasoline, which he used in his business for cleaning garments. While his act was within the strict letter of the statute, it was not within its spirit and intent, and I do not think it constituted a criminal offense. It has often been held that such an act as that committed by the appellant would not be deemed a violation of the provisions of an insurance policy prohibiting the storing of certain articles; and the provisions of a penal statute are to be construed more strictly than the terms of a contract.

In N. Y. Equitable Ins. Co. v. Langdon, 6 Wend. 623, it was held that the keeping by a grocer of spirituous liquors and oils as incidental to his business was not a storing of such articles within the meaning of the policy.

In O'Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122, it was held that the provision of a policy forbidding the use of a building for purposes denominated "extrahazardous" or for the storing of articles denominated "hazardous" was not violated by the use of such articles in the course of the repairing and painting of the building.

In Hynds v. Schenectady Co. Mutual Ins. Co., 11 N. Y. 554, it was held that a condition in a policy of insurance upon a building, which prohibited its being appropriated, applied, or used for the purpose of storing or keeping therein certain articles denominated "hazardous," is not violated by a mere temporary or casual deposit of such articles in the building. The court said (page 561):

"It is not enough that hazardous articles are upon the premises. They must be there for the purpose of being stored or kept, and the premises must be appropriately applied or used to effect that purpose. This is the definition that has been settled by repeated decisions in refer

ence to the word 'storing,' and there is no reason why it should not be applied to 'keeping,' a word of more extensive signification undoubtedly, but which, in this connection, seems to demand a continued occupation of the whole or a part of the premises insured, in pursuance of a design, for that specified purpose."

In Williams v. Fireman's Fund Ins. Co., 54 N. Y. 569, 13 Am. Rep. 620, it was held that a provision in a policy of fire insurance prohibiting the storing or keeping of certain hazardous articles has reference to a storing or keeping in a mercantile sense in considerable quantities, with a view to commercial traffic, or when storing or safekeeping is the sole or principal object of the deposit; not where the keeping is incidental and only for the purpose of consumption. See, also, Harper v. Albany Mut. Ins. Co., 17 N. Y. 194; Harper v. N. Y. City Ins. Co., 22 N. Y. 441; Williams v. People's Fire Ins. Co., 57 N. Y. 274; and Archer v. Merchants' & Manufacturers' Fire Ins. Co., 43 Mo. 434.

Giving to the statute the strict construction required by law (People v. Rosenberg, 138 N. Y. 410, 415, 34 N. E. 285), it is obvious that the daily use by the appellant in his business of the small quantity of naphtha which was found in his possession was not an offense against a law prohibiting the storage of the combustible articles. The construction which would be required in order to maintain the conviction would be taking the language of the statute in the most strict and literal sense. That view would include the keeping or handling of a box of matches in a tenement house and the wearing of feathers upon the hat of a female occupant. It is unnecessary to hold that the appellant could not keep on his premises such a quantity of naphtha or gasoline, even for use in his business, as might offend the provisions of the act in question; but it seems obvious that his possession of the small quantity proven, for the purpose for which he concededly had it, was not a criminal act within the intent and spirit of the law. The judgment of conviction should be reversed.

Judgment of the Court of Special Sessions reversed, and proceeding dismissed. All concur.

BOKER v. H. KOEHLER & CO.

(Supreme Court, Appellate Term. May 7, 1909.)

MUNICIPAL CORPORATIONS (§ 705*)-INJURIES TO PEDESTRIANS-CONTRIBUTORY

NEGLIGENCE.

A person standing on the roadway of a street, and thereby exposing himself to danger from vehicles properly passing along the roadway, must exercise care corresponding to the danger to avoid such vehicles.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1515; Dec. Dig. § 705.*]

Dayton, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Second District.