Marba Sea Bay Corp. v. Clinton Street Realty Corp. , 246 A.D. 764 ( 1935 )

Action for the partition of real property at Arveme, Queens county, including land between high- and low-water mark. Interlocutory judgment on appeal by the city of New York reversed on the law and the facts, with costs, and the complaint dismissed, with costs, upon the grounds: 1. The colonial grant is void, so far as the Atlantic ocean foreshore of Rockaway beach is concerned. 2. The plaintiff has failed to prove that its property lay within the bounds of the Palmer grant, as the peninsula existed in 1685. 3. It has not borne the burden required of it to prove loss of land by avulsion, in that the testimony offered is too uncertain, showing only approximately, and as guesses, the amount of land which the several storms carried away, showing that much land was restored between storms, and failing totally to show what the shore line was at any time immediately prior to any one of the storms relied upon as being responsible, for the avulsions — upon which the plaintiff bases its claim. In view of this decision the appeal from the order denying plaintiff’s motion for an extra allowance is dismissed, without costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Scudder and Johnston, JJ., concur; Lazansky, P. J., concurs. In my opinion, the grant made by Governor General Dongan to Palmer of ten to eleven miles of the foreshore or tideway of the Rockaway peninsula should be held to be void. (People v. Steeplechase Park Co., 218 N. Y. 459; see concurring opinion of Willard Bartlett, Ch. J., p. 482.) In that case the grants were only 633 feet in width, and further, it was held they were made by the State under constitutional authority. Young and Carswell, JJ., concur upon the second ground stated. Settle order on notice. [See Arverne Case, ante, p. 752.]