¶1The judgment annulling the land grant from the State applied to land adjoining the two lots which defendant had-*232conveyed with covenants. Under the allegations in that proceeding, of which suit defendant had due notice, it seems clear that the judgment vacating the grant established that the lands conveyed by defendant were not “ uplands,” but land beyond high-water mark, although then partially filled in. However, the actual physical condition and origin of these lots does npt depend wholly on that judgment. It is proved by uncontradicted testimony in the present suit, to the effect that both lots conveyed were wholly below the easterly high-water line of this arm of Byram river. The title to such lands, therefore, was presumptively in the State, and not in defendant or his predecessors. As the Legislature has granted these lands to the village of Port Chester, which has laid out across the property a street known as “ Palmer Place,” an eviction from the warranted lands by paramount title has been established. Against this actual eviction, the alleged Colonial charter of 1720 cannot avail the appellant.
¶2The expense of defending or attempting to uphold the letters patent of the lands under water (which are not the lots conveyed, but only adjacent thereto), should not have been recovered, as damages for breach of the covenant of warranty. Such a patent, though based on ownership claimed of this upland, was not a part of the conveyed lands, but was obtained by an independent attempt to acquire State lands, which has failed. Plaintiffs’ expense in resisting the State’s suit to annul and vacate the patent of such adjacent lands, therefore, was not incurred in defending the possession of the lands warranted. Hence such outlays were not properly recoverable under defendant’s covenants.
¶3The judgment should, therefore, be reduced to the sum of $470, the original consideration, with six years’ interest and costs in the court below. As thus modified, the judgment should be affirmed, without costs to either party on this appeal.
¶4Jenks, P. J., Stapleton, Mills and Blackmar, JJ., concurred.
¶5Judgment reduced to $470, the original consideration, with six years’ interest, and costs in the court below; and as thus modified affirmed, without costs to either party on this appeal.