author: Mason, J.

text:
    Stacey Pitcher v. The New York & Erie Railroad Company, and the Mayor, Aldermen & Commonalty of the City of New York.
    In the year 1794, a committee of the corporation of New York recommended the passage of a resolution limiting a grant of land under water, which they had previously promised to the corporation of Trinity church, to certain specified limits, and also of another resolution, requesting the church to release to them a certain piece of this ground adjoining to the river, and accompanied their resolution with the remark, that if these two objects be obtained, a spacious square will be formed between certain streets therein specified.
    The resolutions were adopted, communicated to the church, and the request contained in them, acceded to.

      Held, that this did not form a contract between the city, and the church; that the space of ground should ever after be kept open as a public square.
    Neither did it amount to a dedication, by the common council, of the space of ground to that object. ‘
    The corporation of the city, afterwards, in 1809, granted the water lots in. the neighborhood, and accompanied the grant by a map of the premises, on which the square in question was designated, and the word “market” written on one part, and the words “reservation for a market-place” written on another part of the square and space in question. A market was soon after erected, which remained there till 1830, about 23 years, when it was removed, the inhabitants and owners of property in the vicinity, consenting that it might be removed, and that the space should remain open as a public square until the corporation should think proper to rebuild a market.
    The space continued open without any buildings thereon, till some time in the year 1851, more than twenty years longer, when the corporation leased it to the Railroad Company, for the purposes of their business.

      Held, that these facts were no evidence of a dedication of the ground, by the corporation, for a public square.

      Held, also, that the above facts showed that the space was reserved, by the city corporation, for public use.
    The distinction between a dedication, and a mere reservation of land, is well established. The former is irrevocable, and the owner has no power or control over the property, inconsistent with the terms of the dedication. The latter imposes no obligation on the owner, his control over the property continues, and he may exercise the rights of an owner as fully as he could have previously done.
    Its actual application to public uses, as for the site of a court house, or jail, &e., especially when the reservation is by a municipal corporation, does not deprive the owners of the right of resuming the entire control and disposition of the property, when it is no longer wanted for the purposes to which it was originally applied.
    (Before Mason, J., Duer J. assisting.)
    May 10, 1851.
    This was a motion for an injunction, to restrain the New York & Erie Railroad Company, from erecting .buildings upon a piece of ground in the city of New York, lying west of Washington street, between Reade and D.uane streets, which had been recently leased to them by the mayor, aldermen, and commonalty.
    The plaintiff was an owner of a piece of property fronting the above-mentioned space of ground, and the application was founded upon the allegation, which he endeavored to support by proof, that the space of ground in question, had been dedicated by the mayor, aldermen, and commonalty, for a public square.
    The motion was heard upon the complaint, and upon affidavits, on the part both of the plaintiff and the defendants.
    The principal facts, as they appeared in the evidence, are as follows:—
    In the year 1789, the corporation of Trinity church were the owners of the land along the shore of the Hudson river, extending northwardly from Chambers street, to some point beyond Duane street.
    On the 13th of May, 1789, the mayor, aldermen, and commonalty, on the petition of the corporation of Trinity church, directed a grant to be made to the church, of the soil, from high to low water mark, and from thence two hundred feet into the river, opposite to their land between Chambers street, and the next adjacent street to the northward, reserving a quit rent to commence at the expiration of twenty-one years, of one shilling per foot, which was afterwards ordered to commence at the expiration of forty-two years.
    Reade street was then, as now, the street next adjacent to Chambers street, on the north ; and it was the intention at that time, of the city authorities, to extend it to West street parallel to Chambers street. High water mark was east of the easterly line of Washington street.
    In the minutes of the common council of the city, under date of April 1st, 1794, there appears the following entry :—
    “ On reading a petition of the corporation of the Episcopal church, for a grant of the water lots in front of their land, north of Reade street; the board determined that the prayer could not be granted, as the board have reserved these lots for a public use. But on a suggestion that the reason of the application for the said grant, was to enable the said corporation to dispose of the earth to be dug out of Greenwich street, Aider-man Campbell, and Messrs. Janeway and Post, were appointed a committee to confer with them on the subject.”
    The result of the conference appears from the following entry, made on the report of the committee, entered on the minutes of the 10th of June, 1794 :—
    “ The board determined that they would grant their estate and interest in the soil, between high and low water mark, so far into the river, as to extend to the east side of a street of 50 feet wide,'150 feet west of Washington street, to be continued.” On condition that the church, without delay, dig out Greenwich street, and build a bulkhead, &c.
    On the 14th July, 1794, the corporation of the church, as appears by the minutes of the common council of that date, signified “ their acceptance of the grant made to them by the determination of the board, on the 10th of June last—that they would cheerfully comply on their, part, with the terms, and returned thanks to the board, for the favor shown them.”/

      At the same meeting of the common council, a report was made by the street committee, and adopted, as follows :—
    “ The street committee beg leave to report, that they have caused a survey to be made, and which is herewith presented to the board, of that part of Greenwich, Washington, Reade, and Duane streets, which are connected with the grant agreed to be made to the corporation of Trinity church, and to offer to the consideration of the board, the following remarks on the premises :—
    “ First.—That the grant heretofore promised to the said corporation, between Chambers and Reade streets, be limited to the dotted line intersecting the said grant, from the east .corner thereof, on Washington street and Reade street, to a point on the west side thereof, so as to be parallel to the line of Duane . street.
    “ Second.—That the said corporation be requested to release to this board, the land which lies adjoining to the river, west of Washington street, and between Reade and Duane streets. If the said two objects be obtained, a spacious square will be formed, between Washington street, and the new street' intended in the front, on Hudson river, and open to the harbor or basin, that may hereafter be made in front thereof.”
    On the 21st July, 1794, Mr. Carman, who appears to have belonged to both bodies, reported to the board, that the corporation of the Episcopal church acceded to the proposal suggested in the report of the street committee, at the last meeting.
    And on the 4th of-August, 1794, the common council passed the following resolution: Resolved, That this board, in consequence of their former determination, grant to the Episcopal church, the water lots north of Reade street, agreeable to such survey to be made thereof, as shall be approved by the board.
    The diagram annexed shows the course of Reade street, as altered by the resolution of July 21, 1794, and the dotted lines the continuation of Reade street west of Washington street, according to the original plan.
    The diagram, with the exception of the dotted line, is taken from a map annexed to a grant made by the corporation of the city to Wm. Rhinelander, in 1807.

      In the year 1801 the corporation of the city erected a market upon a portion of the said vacant space of ground, and also caused an engine house and hay-scales to be erected thereon, all which continued and were used until the year 1830, when the market being much out of repair, it was taken down, together with the other buildings.
    Previous to the removal of the market, some of the inhabitants, residents, or owners of property in the vicinity, had petitioned the corporation to repair the market, which the corporation refused to do. They then sent a communication to the common council consenting to the removal of the market, and that the space should remain open as a public square, until the corporation should think proper to re-build a market.
    The market committee to whom this communication was referred, reported, “ that the market bad for a long time been in a state of decay, having but one or two butchers’ stalls in it occupied, and affording no convenience to the inhabitants generally, and little, if any, to persons residing in the immediate neighborhood. On all hands it is admitted to be a great nuisance in its present condition, and although some of the petitions first presented on this subject, prayed to have it repaired and extended, a great majority of the petitions apply for its total removal. The establishment of Clinton market within the last year, renders it still less necessary to retain a market on the spot, and the committee are decidedly of opinion that the total removal of the present market-house and building there, will not only be a public improvement, but conduce much to the comfort of the inhabitants residing in that quarter. They have reason to believe that such a measure would now give general satisfaction to the parties interested, and that a unity of sentiment prevails among them in favor of having the space of ground where the said market stands thrown entirely open, which would not prevent the re-establishment of a market in the same place, or the use of it in any other way for public convenience, which might be deemed expedient at a future day.” The committee submitted the following resolution, which was adopted.

      Resolved, That the market-house and its appurtenances erected on the space of ground lying between Duane, Reade, Washington, and West streets, be removed, and that the ground upon which the same stands be paved and regulated.
    The market was accordingly removed, and the space was enclosed with a fence, and so continued until the same was leased to the New York and Erie Railroad Company, for the purpose of erecting a depot for the accommodation of their business.

      H. Nicoll and S. Jones, for the plaintiff.

      C. O’Conor, for the mayor, aldermen, and commonalty.

      W. Kent, for the New York and Erie Railroad Company.
    The counsel for the plaintiff raised and argued the following points:
    I. At the time of the passage, by the common council of the corporation of the city of New York, of the resolutions of 1794, in respect to the alteration of the line of Reade street, by which a spacious square was' to be formed, fronting on the river or the intended basin, the corporation of Trinity Church were the owners of the ground under water from Chambers to Jay street.
    (1.) Under the resolutions of said common council of May 13th, 1789, and of June 10th, 1794, they acquired a Valid title to said property.
    (2.) The evidence (see extract from minutes of corporation of Trinity Church,) shows that the condition upon which the land under water referred to in the" last resolution was intended to be given, was fully performed, and. even if there were no evidence on the point, at this late day, in the absence of any contradictory proof, said condition would be presumed to have been performed.
    (3.) The fact that no formal grants of this property have been shown to exist, does not, in any respect, impair the title of the corporation of Trinity Church; to the property in question, and if necessary, after the lapse of nearly sixty years, the proper grants may be presumed.

      (Jackson v. Brooke, 8 Wend. 425; Jackson v. Warford, 7 Wend. 62; Jackson v. Miller, 6 Wend. 228; Greenleaf on Evidence, Vol. I. § 46, p. 56.)
    . II. As early as the year 1794, there was a complete and effectual dedication of the space of ground between Washington and West streets, and Duane and Reade streets, as and for an open and public market square, by the acts and agreement of the parties owning and interested in the same, by
    (1.) The resolution of the common council of 1794, and the consent of the corporation of Trinity Church.
    (2.) By the laying out of the same as a market square by the corporation of Trinity Church, on the map of their property, as early as the year 1799.
    (3.) The sales by the corporation of Trinity Church, shortly subsequent to the making of the said map, of the lots adjoining to the said square, by the numbers as designated on said map.
    III. The dedication of the said square has been subsequently acknowledged, ratified, and confirmed by the acts of the said parties.
    (1.) It was fully recognised by the corporation of the city of New York as an open square, on the map attached to the Rhinelander grant, as early as the year 1807.
    (2.) A market was erected on said square, by the corporation of the city of New York, in the year 1807, and said market continued to be kept up until the year 1880.
    (3.) Said market was not taken down until the consent of the owners of property in the neighborhood had been obtained, and of such consent contained an express condition that the said space ground should remain an open square until wanted for a market.
    (4.) The acts of the corporation of the city of-New York, in taking down said market. (See the resolution of their common council, of April 19; 1830.)
    IV, Dedications of land for public purposes, similar to the one claimed to have been created in the present case, have been repeatedly held as valid and obligatory upon the parties making the same, and-such dedications have-uniformly been inferred in favor of the owners of property in the vicinity of the ground dedicated.

      (Lake v. Shepherd, 2 Stra. 1004; Rex v. Loyd, 1 Camp. 260;
      Roberts v. Kerr, 1 Camp. 262, note b.; Jarvis v. Dean, 3 Bingham 446; Rex v. Barr, 4 Camp. 16; Bolt v. Stennett, 8 T. R. 606; Hall v. Post, — Mar. 77; Woolych on Ways, chap, ii., p. 9; Rugby v. Merryweather, 11 East 375; King v. Inhabs. of St. Benedict, 4 Barn. & Ald. 447; Wood v. Neal, 5 Barn. & Alderson, 54; Barraclough v. Johnson, 8 Adol. & Ellis, 99; Grand Surrey Canal v. Hall, 1 Man. & Gra. 392; Denning v. Roome, 6 Wend. 651; Livingston v. Mayor, &c., of New York, 8 Wend. 85; Wyman v. The Same, 11 Wend. 486; Pearsall v. Post, 20 Wend. 107; same case in error, 32 Wend. 425; City Cincinnati v. White, 6 Peters 431; Barclay v. Howell’s Lessees, 6 Peters 498; Hunter v. Trustees of Sandy Hill, 6 Hill 407; Munson v. Hungerford, 6 Barb. S. C. R. 265.)
    Y. The original dedication of the said square having in terms carried its westerly boundary to the - line of the river*'or basin in front of the same, the ground subsequently made out of the said river, and adjoining the said square at the outer line of West street, will be deemed as included in and subject to the" original dedication. (New Orleans v. United States, 10 Peters 662.)
    YI. All that portion of the said square lying between Caroline street, was paved and regulated by the corporation of the city New York, as a public street and square, as early as the year 1828 ; and has from that time until within a few months past, been kept in repair by the said corporation of New York, and has been uninterruptedly used by the owners of property in the neighborhood, and by the public at large, as and for a street and public square. Such an unobstructed Use by the public for so long a time, there being no conflicting proof, is conclusive evidence of a dedication of the land, for the purposes for which.” it has been used. (See cases cited-at'foot of point IY.)
    YII. In addition to the proof afforded by public use, the'eir-: cumstances of the case clearly show a valid dedication .of the whole square, under an agreement and by the acts of the parties' ■ nearly sixty years ago, and the use of the said square has been in conformity with such "agreement and original dedication.
    YIII. The allegations as to the pending obstruction on the part of the" defendants, the New York and Erie Railroad Com-, pany, as to the necessity that the same should remain without. obstruction, and as to the injury to the plaintiff, and the other owners of other lots in the neighborhood, and to the public at large, are not denied by the defendants.

    IX. The title of the plaintiff to the lots owned by him, and described in the complaint, is fully made out. Deriving title by and through the purchasers of lots numbers one (1) and two (2) on the map of the church property, he will be deemed to have acquired, as incident to his purchase, all and every right to which those under whom he claims were, in respect to such lots, entitled.
    X. The plaintiff being the owner of land in the neighborhood of the said square, and being injured in the beneficial use of his property, by the admitted obstruction of the said square, has the manifest right to bring a suit for the removal of such obstruction, and to enjoin the defendants, as is prayed for in the complaint in this cause.

      (Spencer v. London and Bingham R. R. Co., 8 Simons 193; Corning v. Lowerre, 5 John. Ch. Cases, 439; Lawrence v. Mayor, &c., of New York, 2 Barb. S. C. 579, and cases cited; Brower v. Same, 3 Barb. S. C. 255.)
    The counsel for the defendants divided their argument as follows:
    The motion is resisted on two general objections, viz.:
    1. That there is no contract from which any right or equity arises to the plaintiff to the relief claimed. •
    2. The plaintiff can claim nothing on the ground of dedication or public use of the locus in quo.

    To these general objections may be added another objection, viz.:
    3. That the plaintiff, by having encouraged the erection of buildings, is precluded from now objecting to it.

      First. There is no deed, grant, or contract, which confers on the plaintiff any right to the injunction.
    I. The resolutions of the common council of May 13th, 1789, and June 10th, 1794, conferred no such right.
    (a.) These resolutions passed no legal estate. They were merely inchoate proceedings, which required grants or deeds to become effectual. Nothing in presentí was conveyed. ,

      (6.) Subsequent fart-execution might give an equitable right to compel in chancery grants from the corporation, but until such part-execution, all that could be claimed was an inchoate claim in equity, which might be waived with as little form as was used in its creation.
    (c.) All right to the locus in quo was waived by Trinity, by its acceding on 21st July, 1794, to the variation of the resolutions of May 13th, 1789, and June 10th, 1794, proposed by the resolution of July 14th, 1794.
    1. The piece of land which the corporation requested Trinity Church to release, was the triangular piece above high-water mark, between Reade and Duane streets.
    2. This was the only land owned by the church, and it would have been absurd to ask it to release land to which it had no title.
    II. The resolution of July 14,1794. contains no engagement that the locus in quo shall be used as plaintiff claims.

      (a.) The mere report of a committee to the common council, setting forth what might be the effect of the release of the church, cannot be tortured into a contract with the church.

      (b.) It is an extravagant and unreasonable inference to deduce such a bargain from the mere use of the word “ square,” which ex vi termini affords no such inference.
    III. If the resolutions of June 10th and July 14th, 1794, by fair construction, can be held to agree to such future use of the square as plaintiff claims, yet Stacey Pitcher cannot claim under them.

      (a.) The resolutions of June 10th, 1794, spoke of a grant between high-water mark and the east side of a street 50 feet wide, 150 feet west of Washington street.

      (b.) Now Stacey Pitcher, if he claims by contract, must claim as owning a lot which comes within the privity of this contract. His lot lies beyond the bounds of this grant.
    (c.) Whatever may be thought of his title, and whether it be considered as derived through the Weldons, or by lease from the corporation, no connection is, or can be shown, between the lot and the resolution of June 10th, 1794.
    IY. Neither can any contract be implied, nor any right be attributed to Pitcher, from the fact that a map was attached to .the grant made by Trinity church to Rhinelander, in November, 1807.
    , Plaintiff is a stranger to this contract. (Squires v. Campbell, 1 Mylne & Craig; Barrow v. Richard, 8 Paige, 351; Hill v. Miller, 2 id. 254.)
    Y. Neither can the consent given by Elbert Herring, and others, in any respect support plaintiff’s claim.
    1. To them he is a stranger, and their acts are res inter alios. In fact their consent conferred no right, and was not received by the corporation as abridging any right.
    2. In the next place, whatever was the original resolution, the reservation of the locus in quo, if considered as binding at all, was soon understood to be for “ a market,” or “ market-place.”
    So the land was described in the map connected with the deed to Rhinelander. Such was and is the right contended for by the Herrings. Such is the right claimed by plaintiff in his complaint. •
    YI. Now the reservation of a place for the market does, in fact, give the owner reserving absolute right over the space reserved.
    ■1. “ A market or market-place,” is a place reserved for the sale of any wares or merchandise, by any one or more persons, and the space may be rented or leased, with stallage or piccage, for any space of time, by the lord of the market. (1 Crabb. Real Property, S. 679; Mosley v. Walker, 7 B. & C. 41; 3 East. 358; Norwich v. Swan, 1 Black. R. 1116; Holcroft v. Heel, 1 B. & P. 400.)
    This right then carries with it the right in the mayor, &c., to lease or grant the place for exclusive use.
    2. Suppose the corporation grant the space for other purposes than a market ?
    The discontinuance of the market is damnum, absque injuria. (3 Salkeld 10.)
    ■ Any deprivation of light and air would be equally affected by a market, as by building proposed to be erected.; and 'besides no action lies in this state for obstructing light and air, nor for diminution of value of adjacent lots. (Fishmonger Co. v. East India Co., 1 Dicken 163; Attorney General v. Nicoll, 16 Vesey 338; Foote v. Parker, 19 Wend. 309.)

      Second. There has been no dedication of the square to public use.
    To constitute a dedication, two things must concur, viz.:
    1. A clear act of dedication.

      2. An adoption of this act by the person claiming, so that to revoke the act of dedication would work him an injury. (Post v. Pearsall, 22 Wend. 472; Cincinnati v. White, 6 Peters 440; Irwin v. Dixion, 9 Howard 10.)
    It is contended that there has been no act of dedication, and that certainly there has been no adoption by Pitcher, or his grantors, of a resolution of the common council of June 10th, 1794, which has slept unknown and undiscovered in its minutes until this suit. Plaintiff does not pretend that he knew of this resolution.
    The plaintiff relies upon the public user. Our answer is:
    1. No user has been proved of such a nature as to indicate a right renounced by owner, and acquired by the public. (Woodyear v. Hadden, 5 Taunt. 127; Kirkham v. Tharp, 1 Wharton 334; Gowan v. Phil. Exchange, 5 Wharton 141.)
    ■ 2. The user has been interrupted.

    The slightest interruption is sufficient. (Roberts v. Karr, 1 Campb. 262, note; Lothbridge v. Walter, ibid.; Commonwealth v. Newberry, 2 Pick. 57; Gale & Wheatley on Easements, p. 122; Barker v. Clark, 4 N. H. Rep. 384; Gibbon on Dilapidation, p. 148.)
    3. The corporation has the right to circumscribe this user. (See Lade v. Shepherd, 2 Strange 1004; Steele v. Prickett, 2 Starkie, 463; Staple v. Haydon, 6 Mod. 3; Jones v. Percival, 5 Pick. 485; Genhorsen v. Christian, 1 Term Rep. 560.)
    The lord of a common may “ improve ” the common, not infringing commoners’ rights. (Com. Dig. Common G. V. Rensselaer v. Radcliffe, 10 Wend. 639.)
    See also on this point, Squires v. Campbell, 1 Mylne & Craig, 459; Irwin v. Dixion, 9 How. 10.

      Third. Stacey Pitcher, having encouraged the Hew York and Erie Company to erect this building, cannot have an injunction against .their building. (William v. Evart, 1 Craig & Phillips, p. 91; English Ch. Rep., vol. 18.)
   Mason, J.

The plaintiff claims to be entitled to the injunction prayed for in his complaint, upon two grounds. First, he insists that the common council of the city, for a valuable consideration, contracted with Trinity church that the space lying west of Washington street, and between Reade and Duane streets to the river, should always remain open as a public square; and, secondly, that if there were no such contract, there was a dedication by the common council, of the space in question to that object.

I will briefly examine both these grounds :

I. Was there any such contract between the common council and the church ? For the purpose of this inquiry, I shall assume that the plaintiff’s title is derived from the church, and that he has the same right to file the complaint which the church would have had -were they now the owners of the premises granted to them by the common council.

It appears from the evidence, that Reade street was originally laid out- to run parallel to Chambers street, from Broadway to the river; so that when extended it would strike Duane street, which then, as now, ran at right angles to, the river, at the easterly corner of Duane and West streets.

In May, 1789, the common council, by resolution, agreed to • make a grant to the church of the soil from high to low water mark, and thence two hundred feet into the river opposite to their land, between Chambers and Reade streets, reserving a quit rent of one shilling per foot in front.

This quit rent was to commence at" the expiration of twenty-one years, but by a subsequent resolution a few days afterwards, the quit rent was ordered to. commence at the expiration of forty-two years.

There is no evidence as to the time when a grant was formally made out and delivered in pursuance of this resolution. It had not been delivered in' May, 1794, for on the fourteenth day of that month, a committee of the common council, in a report to that body, recommended that, the grant theretofore promised to the church, of land under water,. between Chambers and Reade streets, be limited so. as to make Reade street,, from the east corner thereof on Washington' street, parallel with Duane street. They also recommended that the church be requested to release to the corporation of the city, the upland adjoining the river west of Washington street, and between Reade and Duane streets, and to these recommendations they subjoin the remark, that if the two objects be attained, a spacious square would be formed between Washington street and the new street intended, in the front of Hudson river, and open to the harbor.

This report was adopted, and the proposals contained in it were a few days afterwards acceded to by the church.

It is contended by the counsel for the plaintiff, that these proposals, and the acceptance of them, formed a contract between the church and the city, by which the city was bound to keep the space in question open for ever after as a public square. The church, it is said, gave up a portion of their property to the city, and the consideration of their doing so, was the agreement or promise by the common council, that the space in question should for ever afterwards remain open, thereby securing a greater value to the property of the church, which fronted on the proposed square.

Admitting the correctness of the position contended for by the counsel for the plaintiff, that the church had acquired by the resolution of May, 1789, an equitable title to the lands therein agreed to be granted, which might have been enforced in chancery, and that the common council therefore could not rightfully have refused, against the will of the church, to include in their grant any part of the land south of the original line of Reade street; yet I cannot perceive any evidence of such a contract as is insisted on by the plaintiff's counsel, or that the square was the consideration for which the church agreed to release a portion of their right.

It does not appear that the purpose for which the common council wished a release of the upland, and a restriction of the water grant, was communicated to the church. It formed no part of the proposition to be made to the church; it is simply a remark by the committee, as to the benefit that would result to the city if the proposals should be acceded to, not as to the advantage to the adjacent proprietors ; nor is there any allusion to the square in the answer of the church. There is no evidence that the church took any other action in the matter, than simply to authorize Mr. Carman, who, it seems, was a member of both corporations, to inform the common council that they acceded to the proposals, but the object of the common council, in making the proposal, so far from being the consideration of their acceding to it, is not even alluded to. But if the church did know, as it is probable they did, the object of the common council in making the request, it would be difficult to infer a contract for the benefit of the owners of the adjacent lands, from the expression of a wish or desire to reserve the land for the benefit of the public. If it were the intention of the church to secure the benefit of the square to themselves, or to the pxiblic, that intention would surely have been. expressed in some formal and authentic manner ; and in the absence of any such expression, we are authorized to infer that the intention never existed.

There were sufficient motives to induce the church to accede to the proposals of the common council, independently of the idea of a contract. In the first place, the land under water proposed to be given up, was of very little value in those days, and in that part of the city. This is manifest from the resolution for the grant. • It was agreed to be given without any pecuniary consideration paid for it, and subject to a very trifling quit rent, and that rent not to commence running for nearly half a century. The upland released also was of very small dimensions, as appears by the maps, and could not have had more than a nominal value. The church, moreover, stood at that period in a peculiar position towards the city corporation ; they had just applied for a water grant, from Duane to Jay street, which the common council at first refused, but shortly afterwards, on learning that it would be a great convenience to the church to have the land, in order to deposit upon it the earth obtained by digging out Greenwich street, the matter was reconsidered, and the grant agreed to be given. The only condition imposed, that Greenwich street should be forthwith dug out, and a bulkhead be built, was cheerfully and promptly assented to by the church, and they also tendered their thanks to the common council for the favor they had done them. It was at the same meeting of the common council at which the acceptance of the condition of the grant, and the thanks of the church were received, that the resolutions before mentioned, respecting the proposed alteration of the line of Reade street, were passed. It seems to me that we need look no further than the circumstances just stated, for the considerations or reasons of the church’s compliance, and prompt and ready compliance with the proposals of the city corporation.

The idea then of a contract between the church and the common council, for this square, must, I think, be abandoned.

II. The next question is, has the plaintiff shown a dedication of this piece of ground to the public for an open square ?

If there was in fact such a dedication, the authorities cited abundantly show that the property cannot be diverted to any other purpose at the mere will of the common council. The dedication cannot be revoked. Whether or not the legislature, in the exercise of the. right of eminent domain ; or the common council, clothed with the delegated powers of the legislature, could take the property for other public purposes ; or, whether, in such case, compensation must be allowed, as if it were the property of an individual, are questions not necessary to be now considered ; for it cannot be seriously contended that the appropriation of this space of ground to the Erie Railroad Company for a depot, is such a public use, as to justify the exercise of the right of eminent domain.

What is then the evidence of a dedication ?

It must be found either in some act of the common council in terms creating the dedication, or from such an actual use of the property as that an act of dedication may be properly inferred from it.

1st. The only act of dedication relied on was the adoption by the common council of the report of the committee before referred to, in July, 1794.

All that the committee say on the subject is, that if the church accede to the proposal they recommend should be made.to them, a spacious square will be formed ; a piece of information to the common council, which, with the map before them, would seem to have been superfluous. The obvious effect of throwing back the line of Reade street, as proposed, would be to. leave an open space or square. It was said, however, that the word “ square ” has the same general, meaning as the word “ street,” and that it imports ex vi termini an open space of ground devoted to the public use, in the same manner as a public street, laid out by the proper authority ; that the adoption, therefore, by the common council of the report was of itself an act of" dedication. I am not aware of any parliamentary rule, according to which, the adoption by a legislative body of a report of a committee, recommending definite action, is also an adoption of all the remarks made by the committee in the course of their report, especially if those remarks are not necessary for the proper understanding of the acts recommended. All that the committee in this case recommended was, that the church be requested to relinquish a portion of their upland, and that they consént to a restriction of the grant promised' them. It would be giving a wondrous power to this very obvious remark of the committee, as to.the result of a compliance with the request, if it should be held to exclude the common council from ever making any other use of the ground.

It is also to .be observed, that the statutes- referred to, in which the word “ square” is used in a sense synonymous with the word “ street.” had not at that time been passed, and no authority was cited to show that independently of these statutes, in strict legal phraseology, the words are synonymous. But, however that may be, it is apparent, I think, on the face of the report, that the “ square” was used by the committee not in a technical, but in a popular sense, and that it simply means, an open space. In the absence then, of any resolution or affirmative-act .by the common council founded on the assent of the church to the proposal, I should not be warranted in holding the mere adoption of the report to be an act of dedication.

2d. Has then the subsequent use or appropriation of this piece of ground by or with the consent of the common council been such as to prove a dedication ?

The : plaintiff contended that it has; and in support of this position referred to the map annexed to the grant to Rhine-lander. • The grant is dated in 1807, but the map appears to have .been copied from a survey by Charles Loss, and the extract .from Loss’s map annexed to Thurston’s affidavit, gives the-date of this map as Aprils 1799.

On both of these copies the word “ market ” is written in the place designated for the square, the map'annexed to the grant indicating, by the coloring, an actual market house. These maps the counsel for the plaintiff produced, and relied on as evidence of the recognition by the common council of the dedication of the ground as a public square. In my judgment, they prove directly the reverse. The erection of a market house is entirely inconsistent with the dedication of the land on which it is erected for an open square. It is the assertion of a right to erect buildings upon* it; buildings for public purposes, it is true, but yet buildings which might, if the public convenience required it, cover the whole space. It is no answer to say that the market house was erected with the consent of the proprietors of the adjoining land. Their consent could not affect the question. It would be very important, if the common council had entered into a covenant or contract that the space should be kept open for their immediate benefit, because then the church and their grantees might lawfully waive the benefit of the square for the greater benefit of the market: but if there was no contract, and the right to the square depended on dedication, then the whole public were interested, and the adjacent proprietors could not, any m.ore than the common council, deprive the public of their right to have it kept open. The erection of a market house, even with the consent of the adjacent proprietors, does not establish a dedication. On the contrary, the fact that as early as 1799, only five years after the supposed dedication, the space was designated as a market-place on a public map, made by a city surveyor, and which was afterwards treated as authentic by the common council, is a strong argument to show that there was no dedication of the ground for a square ; and the actual erection of the market house previous to 1807 is conclusive evidence that the place was not, in fact, used as a public square.

In truth, the whole history of this space of ground is at variance with the idea of a square. The erection of hay scales, a milk stand, an engine house, all show, that the corporation- of the city used the property for such general purposes as the public convenience from time to time required.

The market was in existence from 1806 to 1880, a period of nearly twenty-five years, and the other erections probably for the greater portion of that time, without complaint' from any quarter. They were taken down and removed because they were no longer needed for public accommodation. But it is said that since 1830, and until shortly before the commencement of this suit, the space has been kept open without any buildings, and for a portion of the time inclosed with a fence, and that Messrs. Herring and others, proprietors of adjoining property, whose consent appears to have been asked for the removal of. the market, while they gave their consent to that object, added to it a consent that the ground remain open as a public square, until the corporation should think fit to rebuild the market. This is, however, no evidence of a prior dedication, and the consent of these individuals imposed no obligation on the common council to dedicate the ground at that time, unless, either the parties giving their consent had a right to insist upon the establishment of the square, as a condition to their relinquishment of the market, or the common council expressly agreed to it. That they had no previous right to a square I. have endeavored to show ; and the power of the common council to remove the market without the consent of the proprietors, is also undoubted ; for it is well established law that when the public convenience requires the location of a market to be changed, it is not only the right, but the duty, of the party enjoying the franchise of erecting markets, to make such change, by discontinuing the old market, and erecting another elsewhere. (Crabbe on Real Property, § 680; Curwen v. Salke, 3 East. 538; Mosley v. Walker, 7 B. and C. 41.) The common council' then were not bound to keep open the ground by reason of this consent or condition, nor did they make an agreement that it should be kept open. The committee who reported on the subject, say in their report, that an unity of sentiment prevailed among the parties interested in favor of having the space of ground on which the market stood thrown entirely open, which would not, they added, prevent the re-establishment of a market, at the" same place, or the use of it in any other way for public convenience, which might be deemed expedient at a future day. Here the committee not only reject the idea of a public square to be kept open with the "single exception in favor of a market, but expressly assert the right to use the ground in any other way that public convenience might require ; and the resolution of the common council simply directs the removal of the market and its appurtenances, and “ that the ground upon which the same stood be paved and regulated.”

I have thus examined all the material facts on which the .plaintiff's claims to an injunction rest, and I confess, I cannot find in them sufficient evidence to justify the conclusion that. the land in question was dedicated to the public for a square, as was contended for by the counsel for the plaintiff. I have looked in vain for any contract to that effect between the common council and Trinity Church, or for an act of dedication, independently of any contract; and the evidence from use, instead of supporting the claim, is exactly the other way.

The evidence, however, does, I think, show that the ground was reserved-by the corporation of the city for public use or convenience. According to the original course of Reade street, there would be an irregular piece of ground between it and Duane, and perhaps, Jay street, which could not be advantageously used for private dwellings, and which would naturally strike an. observer as a suitable site for some of those numberless public uses for which such plots of ground are wanted in a large city. It appears from the report of a committee of the common council, April 1, 1794, that when the church first applied for a grant of water lots between Reade and Jay streets, and the application was denied, as before mentioned, the reason assigned for the denial was, that the common council had reserved those lots for public use, and although, when the grant was agreed to be given in the month of June thereafter, nothing appears to have been Said about this reservation, yet it is worthy of remark, that at the same meeting of the board, at which the acceptance by the church, of the terms of the grant, was reported to the common council, the proposal was made to alter the line of Reade street, so as to make it run parallel with Duane street.

It can hardly be supposed that the common council had forgotten or entirely given up the contemplated reservation for public uses. On the contrary, it would seem fair to infer,- that the alteration of the line of Reade street was proposed and carried into effect in order that while the church was accommodated, the original plan of reserving a piece of ground for public purposes, might also be carried out. The whole seems to have been one transaction, in substance, if not in form, and the subsequent history of the ground in question is in accordance with this idea.

There is a manifest distinction between a dedication and a mere reservation of land, which was admitted by the learned counsel for the plaintiff. The former is irrevocable, and the owner has no power or control over the property inconsistent with the terms of the dedication. The latter imposes no obligation on the owner ; his control over the property continues, and he may exercise the right of an owner as fully as he could before. Its actual application to public uses, as for the site of a court-house' or jail, an almshouse, or any other similar purpose, especially when the reservation is made by a municipal corporation, does not deprive the owner of the right of resuming the entire and absolute disposition and control over it, when no longer wanted for the purposes to which it has been applied.

Such, it appears to me, is the light in which the-space or square in question is to be viewed, simply as reserved by the common council for public convenience, of which they alone were the judges, and without relinquishing the right' of applying it to any other purpose, whenever they should think proper.

I am authorized by Mr. Justice Duer, who assisted me on the hearing of this motion, to say, that he entirely concurs in the views, which it has been my effort to explain,-and in- the conclusion at which I have arrived.

The motion for an injunction is denied, with ten dollars costs to each of the defendants.


source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    Robert W. Andrews v. Henry Storms, C. Schaffer Storms, and others.
    Where the maker and endorser of a note are sued, and put in a joint answer, it must be verified by both, or it will be stricken out as to the party not verifying it. They are not “ united in interest,” so that a verification by one will- be sufficient for both.
    Judge Sandfobd concurred.
    January 10, 1852.
   Bosworth, J.

This action is upon a note made by H. Storms, payable to the order of, and endorsed by C. Schaffer Storms. They put in a joint answer, which is verified by only H. Storms. The plaintiff moves to strike out the answer of C. S.. Storms, on the ground that it is not verified by him.

The defendant contends that the two defendants are united in interest," and that the verification by H. Storms is a compliance with § 157 of the code. They are not united in interest unless the fact that the defence of each is identical with that of the other, makes them so. Their contracts are several, and at common law they must have been sued separately. The fact that the defence of both is the usurious inception of a note, for a part of which this note was given after the maturity of the first, does not make them “ united in interest.” Their liability is several. The causes of action are separate and distinct, and as much so as if their names were to contracts on different pieces of paper, of different dates, and made on distinct and different considerations.

Parties within the meaning of § 167 of the code, are united in interest” only when they stand in the same position, and the cause of action, which exists against one, exists against all. But partners liable on separate and distinct contracts, instead of being united in interest, have separate and independent interests. The contrary would not probably be assumed in this case, if it were not for the fact that the answer states the note was made for the accommodation of the payee, C. S. Storms. Assuming, for the purpose of this motion, that such allegation is true, if it proves any thing bearing on this point, it is this : that as between the defendants themselves, Henry Storms has no interest in the matter. The result of the action, as between themselves, concerns only the payee, for whose accommodation the note was made, and the answer is not verified by him. As between the two, he is, substantially, the only party defendant. As to the plaintiff, they are defendants severally liable (Code, § 120). The meaning of the words “ united in interest,” as used in § 157, is the same as that of the same words as used in § 119. In the latter it clearly means joint promissors, obligors, and the converse, or at least parties occupying the same position in respect to the alleged cause of action.

The defendant is entitled to have the answer stricken out as to C. S. Storms. I think it should be without costs, as the practice in this respect does not seem to be settled. The motion implies that plaintiff’s counsel deems the answer good in form and substance, except as to the verification, and there is no doubt of the good faith of the defendants’ counsel suggested. Under such circumstances, I should give liberty to verify the answer, if it contained the show of a defence. It is, however, clearly frivolous, and if a motion for judgment thereon had been made, under § 247, it must have been g-ranted. (2 Sandford S. C. R. 85.) The answer does not even aver that any part of the usury covered by the first note is included in this.


text:
    Rutter v. Tallis, and others.
    The title of a receiver exists, by relation, from the date of the order directing his appointment.
    (Before Oakley, Dues, & Boswokth, J. J.)
    Feb. 28, 1852.
    This was a motion to compel H. W. Beckwith, Esq., receiver of the partnership effects of the defendants, to satisfy a judgment which the plaintiff had obtained on the 24th of December, 1851, for about $800. It was originally made before Mr. Justice Duer, at special term, but was by him, after a partial argument, adjourned to be heard before a full bench at general term, by reason of the important principles involved.
    The facts were these.' The defendants were a firm doing business in the city of New York, but Mr. Tallis, the senior partner, resided in England. The firm having become deeply embarrassed, the partners, Willoughby and Rogers, without the authority or assent of Mr. Tallis, made an assignment of all the partnership effects to one Martin, in trust, to pay in full certain creditors of the firm, and then to distribute the residue among all others ratably. As soon as this transaction came to the notice of Mr. Tallis, he at once commenced a suit in this court to vacate the assignment, and distribute the property among all the creditors equally, and prayed the appointment of a receiver. The assignee and the other partners put in their answers, insisting on the validity of the assignment, and replies were filed. On the pleadings, a motion was made before Mr. Justice Mason, for a receiver. The motion was granted, and a reference ordered to select a person suitable for the office.
    While this inquiry was pending in the referee’s office, Rutter obtained his judgment and issued execution, which was levied on the assigned property.
    Subsequently, on the 9th of January, 1852, Mr. Beckwith Avas appointed receiver in the suit of Tallis against his partners and their assignee. He immediately claimed the property from the sheriff, on the ground that his appointment related back to the date of the order of reference, and thus over-rode the levy. The jury summoned by the sheriff to try the question, sustained the claim, and the levy was abandoned. The receiver took the property, sold it, and received the proceeds.
    The suit of Tallis was afterwards heard, and the court decreed the assignment to be fraudulent and void. That the assignee transfer all the property to the receiver, and that a perpetual injunction issue.
    The plaintiff, Rutter, now made his motion as above stated.
    C. W. Sandford, for plaintiff.

      A. C. Bradley, for the receiver.
   The court denied the motion principally upon the ground, that when an order of reference is made for the appointment of a receiver, and a receiver is subsequently appointed, his title vests, by relation, from the date of the order, and attaches upon all the property to which the receivership could properly extend, exactly in the same manner, and with the same effect, as if the order, instead of directing a reference, had named the receiver.

The court also intimated very strongly its opinion, that it would not permit a suit for the dissolution of a partnership and the settlement of the partnership debts, to be discontinued by the act or consent of the parties. There must be a special application to the court, and notice to the partnership creditors.


author: Duer, J.

text:
    Robert Grant v. James B. Quick.
    No court in this state can rightfully enjoin a defendant from proceeding in a suit in another court of the state, having equal power to grant the relief sought by the complaint.
    March 6, 1852.
    The complaint was filed to set aside certain securities and agreements held by the defendant, upon the ground that they were all intended to cover usurious loans ; and an injunction Order, founded upon the complaint, had been issued, restraining the defendant from enforcing, or attempting to enforce the. payment of any of the securities, or the performance of any of the agreements so impeached.
    A motion for the dissolution of the injunction was now made, founded upon the answer of the defendant, and upon affidavits, and it appeared, and was not denied, that prior to the filing of the complaint, in this suit, the defendant had commenced a suit against the plaintiff, in the court of common pleas, of this city, which suit was still pending, and was founded upon one or more of the agreements, which the complaint prayed might be declared void and surrendered.

      S. Sanxay, for defendant.
    A. Mathews, for plaintiff.
   Duer, J.

It is not denied that the necessary effect of the injunction which I am asked to dissolve, is to restrain the defendant from proceeding any further in the suit in the common pleas, and, without entering upon the question, whether the equity of the complaint is fully met by the answer, the prior institution of that suit, and its actual pendency, are regarded by me as conclusive reasons for granting the motion in its full extent.

The only ground upon which the court of chancery formerly acted, in granting an injunction, in cases like the present, was the inability of the court of law, in which a suit was pending, to grant the necessary relief; but as, since the code, the jurisdiction of all our courts is equitable as well as legal, or more properly, as the distinction between legal and equitable, except in reference to the nature of the relief demanded, is now abolished, the reasons, by which the exercise of a power, always invidious, and frequently abused, could alone be justified, have ceased to exist, and have left a case, to which the maxim emphatically applies, that “ cess ante ratione, cessat etiam lex.”

It is said that the suit in the common pleas relates only to one of the agreements, from which the plaintiff seeks to be relieved, and that the injunction should therefore be only partially dissolved, but it is evident from the pleadings, that all the securities and agreements set forth in the complaint, are so connected, that, in all probability, they must stand or fall together, and it is upon this connection, that the complaint specially insists.

It may be true, that all the matters set forth in this complaint cannot, with propriety, be set forth in an answer to the plaintiff's complaint, in the common pleas, or if contained therein, cannot be made the ground of the affirmative relief, to which the plaintiff deems himself entitled; but there is an obvious and conclusive reply. If affirmative relief cannot be granted to the plaintiff, upon his answer, (which, however, I am far from thinking,) he may file a complaint in the common pleas, in the nature of a cross bill, and that court, according to the course in chancery, will then stay the proceedings in the first suit, until both shall be at issue, so that both may be tried and decided at the same time. Although nominally, there will be two suits, there will be, in reality, but one controversy. It is in the common pleas that the controversy was commenced, and it is there that it ought to be terminated. The prior jurisdiction which that court has acquired over it, I have no right, and will not attempt to disturb. The injunction must, therefore, be dissolved, but as the question is said to be new, without costs ; the plaintiff’s counsel, however, will consider, whether it may. not be expedient to apply, without delay, for leave to discontinue the suit. He will consider, whether the ground upon which I dissolve the injunction, may not also be a ground for dismissing the complaint.

At a joint meeting of the judges of the supreme court, of the common pleas, and of this court, which was had shortly after the above decision, it was communicated by Duer, J., and unanimously approved.