The opinion delivered at the Appellate Division by Mr. Justice JENKS very ably and accurately reviews the *Page 41 legal questions presented and abridges the discussion here. Whether a condition in a deed is a condition precedent, or a condition subsequent, depends upon a construction of the language used by the grantor, in connection with the purpose of the grant. In this case I think there is no room for doubt as to the nature of the condition, upon which the grantee took an estate in the premises conveyed. (Stuyvesant v. Mayor etc., of N.Y., 11 Paige, 414; Upington v. Corrigan, 151 N.Y. 143.) The language of the deed expressed a condition, which was to defeat, not to create, an estate in the grantee. The grantor had parted with every interest and estate in the real property conveyed. The act to be performed by the grantee followed the vesting of the estate and the language imported a condition merely, and not a covenant. The case, therefore, being one of a conveyance of land upon condition subsequent, came within the operation of the rule in such cases, that the grantee should comply within a reasonable time with the condition. (Washburn on Real Property, *449.) The trial judge found as a fact that ten years, at the date of the conveyance, was a reasonable time for the purpose expressed in the condition. It was conceded that up to the commencement of the action in 1898, a period of twenty-five years, no city building had ever been erected. In that respect, the case is similar to that of Upington v. Corrigan (supra); where the condition of the grant was that a church building should be erected and where it was held that a reasonable time for such erection was the period of ten years. (See Stuyvesant v. Mayor etc., ofN Y, supra; Palmer v. Ft. Plain C. Plank Road Co., 11 N.Y. 376;Hayden v. Stoughton, 5 Pick. 528.) With the finding as to a reasonable time for compliance by the grantee, in this case, I think this court cannot interfere. The evidence shows that, while the condition of the property in 1873, when the conveyance was made, was that of farming land, in 1874, and for several years subsequent thereto, the land was improved and streets were laid out, graded, sewered, flagged, etc.
The appellant argues that the condition of the conveyance *Page 42 upon which the land should revert back, was if it "shall ever cease to be used by said Long Island City for a city hall or other similar city buildings;" and as no building was, in fact, erected, the condition did not arise. I see no force in the argument. The whole language, in which the condition is expressed, must be considered and then it becomes quite apparent that the condition of the conveyance, which the grantee accepted, was that a city hall, or building, was to be erected and that, if the land should ever cease to be used for such purposes, the land should revert to the grantor. The condition was the use and the continuing use of the land for the purpose of the grant. The long-continued silence of the plaintiff could not operate as an estoppel upon, or preclude, it from insisting upon a forfeiture, and from claiming possession of the premises. The effect of an express condition in a deed cannot be destroyed by silent acquiescence. (Jackson ex dem. v. Crysler, 1 Johns. Cases, 125.) The title to the property was vested in the grantee and the plaintiff was entitled to assume that its grantee would comply with the condition of the grant. If it elected to await compliance as long as it did, that fact cannot be construed against its right to reclaim possession.
The appellant argues that it was incumbent upon the plaintiff to demand performance before it could become entitled to re-enter, as for condition broken. If this clause was in the nature of a covenant by the grantee, a demand might be necessary; but, being a condition subsequent, proof of demand of possession before commencing the action was unnecessary. (Plumb v.Tubbs, 41 N.Y. 442.)
As to the right to damages, the reasoning of the learned justice at the Appellate Division is quite conclusive. The allegation in the complaint that the defendant was in possession of the premises, or claimed to be entitled to their possession as successor of Long Island City, the grantee in the deed, was not denied by the answer. The evidence, amply, shows that the defendant was in possession. Within the authority of Clason v.Baldwin, (129 N.Y. 183, 189), the plaintiff, in *Page 43 recovering judgment, was entitled, by way of damages, to the rents and profits, or the value of the use and occupation of the land, from the commencement of the action.
The judgment below was right and I advise its affirmance here, with costs.
PARKER, Ch. J., O'BRIEN and BARTLETT, JJ., concur; HAIGHT, J., dissents; CULLEN and WERNER, JJ., absent.
Judgment affirmed.