#### Clara B. Atkinson, respondent, *vs.*John A. Bowman, appellant.

*(Supreme Court, General Term, Second Department,*

*Filed December 14,*1886.)

Titee — Real property — Tbust.

In 1651, E. and H., bought of the Indians a tract of land on Long Island, now the town of East Hampton. James Duke of York owned the entire island by grant from Charles II. Nichols, Governor General under James Duke of York, ratified the purchase, the patent reciting that the town is in possession of “ several freeholders and inhabitants,” who have purchased the land and confirms the purchase unto the purchasers, and to a Justice of the Peace and six others named “ as patentees for and in behalf of themselves, and their associates, the freeholders and inhabitants of said town, their heirs, successors and assigns.” The “ said patentees and their associates were granted,” all the privileges belonging to a town within the government. The patent of Nichols was given in 1666, and in 1686, Dongan,Captain-General under James Duke of York, then King of England, granted a charter to the same persons named in the Nichols patent. This charter also recited that the patentees were acting “ for and in behalf of themselves and their associates the freeholders and inhabitants of the town of East Hampton.” The charter creates a board of trustees including the patentees under the Nichols patent and others, and conveys the lands of the town to them as “trustees of the freeholders and commonalty of the town of East Hampton and their successors.” *Feld,*that allotment of the land granted by the charter by the trustees of the freeholders and commonalty of the town of East Hampton rested on sound title, and that the lands unallotted continued to belong to the town, and that a title to such lands derived by the defendant from the town was the only valid title.

Appeal from judgment entered on referee’s report in tbe Supreme Court in Suffolk County.

*47Tbe action was for tbe possession of a certain lot of upland in tbe town of East Hampton, Suffolk County.

Tbe plaintiff claimed title from tbe original proprietors, tbeir beirs and assigns. The defendant claimed title under a quit claim deed from the. trustees of the town of Easthampton. The referee found for tbe plaintiff.

*Edward M.*Atkinson, for appellant; *Henry C.*Platt, for respondent.

Barnard, P. J.

The facts in this case are undisputed. Eaton & Hopkins brought a tract of land in 1651 of tbe Indians. This tract is now tbe town of East Hampton.

James Duke of York, owned tbe entire island by grant from King Charles II.

The Governor-General, Nichols, under James Duke of York, ratified tbe purchase. This patent recites that tbe town is in possession of “ several freeholders and inhabitants,” who have purchased tbe land, and confirms tbe purchase mito the purchasers, to a Justice of tbe Peace, and six others, named “as patentees, for and in behalf of themselves and their associates, the freeholders and inhabitants of the said town, their heirs, successors, and assigns.”

By the same charter, the said patentees and their associates were granted “ all the privileges belonging to a town within the Government.” The patent or charter of Nichols was given in 1666, and in 1686, Captain General Dongan, under James Duke of York, who had then become King of England, granted a charter to the same persons as were named in the Nichols patent. This Dongan charter also recites that the patentees were acting “ for and in behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton.”

A board of trustees is created by the charter.

This board included the patentees under the Nichols charter, and adds others and conveys all the lands of the town to the new board, as “ Trustees of the Freeholders and Commonalty of the town of East Hampton and their successors.”

This grant was one to the freeholders and inhabitants of the town. It was to be in trust for the use of the inhabitants of the town. *Trustees of East Hampton*v. Kirk, 68 N. Y. 459. Same case, 84 N. Y. 216.

Whatever use or possession was made of what are termed the proprietors from the charter, was entirely useless for any purpose. The allotments, made in severalty, rested on a sound basis of title. This was the grant from the Crown to the town, and the town allotment to the individuals, who thereafter held in severalty. The unallotted lands continued to belong to the town, and the defendant’s title thereto from the town is the only title.

*48The Montauk bill is an entirely different one. It bad not been acquired by the town at the date of the Dongan charter, and the town was authorized to get a title. Subsequently, no doubt, one was obtained, and it had been used as private property for the purpose of pasturage for very many years.

This was an allotment to individual uses to all legal intents and purposes. ■

The judgment should therefore be reversed and a new trial granted, costs to abide event.

Dykman & Pratt, J J., concur.