[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 327 The complaint, after particularly describing the lands which are the subject of the alleged contract, states that the plaintiff "made a proposition to the defendant to *Page 328 sell to said defendant the fee simple title to all and singularthe lands aforesaid * * * at and for a reasonable price, to be fixed by arbitration."
The premises described in the complaint, and which were the subject of this offer, and to which the phrase "the lands aforesaid" referred, consisted of the whole of Ward's island, in the East river, and within the boundaries of the city of New York, except what was already owned by the city of New York, the commissioners of emigration, and four lots containingseveral acres, owned by Mr. Minturn. This proposition was made some time in 1857, but at what precise time does not appear.
The common council of the city passed the following resolution; but whether in response to the foregoing offer is left to inference:
"Resolved, That the mayor of the city of New York be, and he is hereby, authorized and directed to appoint one arbitrator to meet with one arbitrator to be appointed by the owner, Alexander McCotter, of all the private property and water rights not owned by the commissioners of emigration, or the city of New York, on Ward's island, which two arbitrators, if they cannotagree, shall have power to select a third, * * * and saiddecision shall be binding for the purchase of said property by the corporation of the city of New York."
Without pausing to comment on the form of this extraordinary resolution (for it submits nothing in terms to arbitration), it is sufficient to observe, that, so far as it can be considered a proposition to purchase, it embraces the land of Minturn inaddition to the property offered by the plaintiff. Because the lands embraced within the language of the resolution, and which it may be inferred the arbitrators were to appraise, were "all the private property not owned by the commissioners of emigration, or the city of New York," and it was the purchase of "said property" which the decision of the arbitrators was to make binding. Whether this resolution was called forth by the offer of the plaintiff, is left to inference, but it appears from its terms that it was not an *Page 329 acceptance of it. The arbitrators found the value of the property "owned or claimed to be owned by the said McCotter, or to which he may furnish a valid title," but they did not estimate the value of the Minturn lots, nor did the plaintiff ever obtain the title therefor. That it was the object of the city to purchaseall the lands on the island not owned by it, is apparent from the language of the resolution of the committee of the common council, to whom the matter was referred. It was as follows: "Itis highly essential the city should purchase whatever propertythere is on the island belonging to private individuals, and thatforthwith." Regarding the resolution as a reply to the plaintiff's offer, the negotiation therefore amounted to just this: the plaintiff offered to sell to the city of New York property which he at the time owned or controlled, and the city replied by offering to purchase, not alone the lands offered, but other lands in addition thereto, so as to own the whole island. It therefore cannot be claimed, down to this point, that there was a contract, for the minds of the parties never met. The learned counsel for the plaintiff endeavored to answer this objection, on the argument, by saying that the common council evidently referred to McCotter's land only, in the resolution, erroneously styling him as the owner of all the private property on the island, when the papers before them showed the contrary. The difficulty in this argument is that the resolution does not refer to any papers which were before the common council, so as to require them to be construed together. Nor does it appear that there was any thing before them except the original offer of McCotter, which, having been lost, was not produced on the trial.
In giving the contents of that offer, the plaintiff testifies as follows: "The proposition, I think, was that they might take the lands at a stipulated price, or if that was not satisfactory, I would submit the matter to two arbitrators to fix the value, the one to be chosen by the mayor of New York and the other by myself." The resolution of the common council, on the other hand, proposed two arbitrators, and clothed them with the power to select a third in case they *Page 330 could not agree. This was not an acceptance, and the minds of the parties did not meet. These considerations, together with the fact that no offer was ever made to convey the property under this alleged contract, disposes of this part of the case.
But it is alleged that there is still another and subsequent contract between the parties in relation to the same lands, which the plaintiff claims to enforce, and which arose as follows:
Subsequently to the award of the arbitrators, and on the second day of March, 1858, the common council rescinded the resolution authorizing the arbitration, and then, in August, 1858, by another resolution, "authorized and directed the comptroller of the city of New York to purchase from A. McCotter all the land situate on Ward's island not owned by the city or the commissioners of emigration, * * * to which the said McCottercould furnish or cause to be given a good and sufficient title."
Prior to this resolution, and on the 17th day of May, 1858, the plaintiff offered the lands on the island to which he could give a satisfactory title, for $1,500 per acre, on condition, among other things, that the matter should be closed without delay. This proposition, not having been accepted, was withdrawn on the 27th day of the same month, and before the last named resolution of the common council was passed.
Immediately after the resolution of August, 1858, the plaintiff submitted to the counsel to the corporation the evidences of his title to the lands to which he proposed to give a title, which were approved by that officer, and a deed in due form was executed and tendered to the comptroller of the city, conveying said lands, which was refused. But it is not even suggested that the comptroller, in virtue of the power conferred on him by the resolution, ever opened negotiations for the purchase of the lands in question, nor does it appear that the plaintiff ever requested him to do so. The second offer of the plaintiff to sell the lands had been withdrawn when the last resolution was passed, and even had it *Page 331 been otherwise, the resolution could not be construed as an acceptance of it. It is true that it authorized and directed the comptroller to buy the lands, but it did not fix the price which he was to pay for them, and that important part of the contract was left open for negotiation as well as the terms of payment. The comptroller was authorized and directed to issue city bonds for the payment of the lands, a matter which McCotter did not appear to have ever proposed or agreed to, and even the rate of interest which the bonds were to bear was left blank in the resolution itself. From the whole case it is evident that no contract between the parties was ever made.
The judgment of the General Term must therefore be affirmed with costs.
All the judges concurring,
Judgment affirmed. *Page 332