In 1920 (Matter of City of New York [Piers Old Nos. 8-11],228 N.Y. 140, 146) and again in 1938 (City of New York v.Wilson Co., 278 N.Y. 86, 97-99) this court, elaborately and at length, construed the acts of 1871 and 1873 which in the present case are relied upon by the appellant city as rendering void the purported grants to claimants' predecessors. In each of those two cited cases this court, in plainest language, said that the 1871 and 1873 statutes made "all water front property owned by the city" absolutely inalienable (see 228 N.Y. at pp. 150, 151, and 278 N.Y. at p. 99). In those two cases there were cited earlier decisions of this court which had construed the same 1871 and 1873 statutes as "ending all private ownerships along the water front" (Kingsland v. Mayor, 110 N.Y. 569, 578), as causing "the old plan of wharves and piers owned by individuals * * * to be swept away" (Williams v. Mayor, 105 N.Y. 419, 437) and as accomplishing the "exclusion of all private ownership" (Matter of Mayor of N.Y., 135 N.Y. 253, 263). The plainly stated holdings of this court in all those cases were that the 1871 and 1873 statutes completely, positively and absolutely rendered invalid and without effect any attempted grants by the city, after 1871, of any of its water front property. That some of those cases involved only piers or wharves, or lands under them, is beside the point, since, as this court was at pains to point out in the Wilson case (see 278 N.Y. at p. 99) the court in the earlier cases (specifically the Piers 8-11 case) was construing them (the 1871 and 1873 statutes) "not in terms of their application to piers and wharves alone, but their intent and purpose as a whole."
With equal firmness this court in the Wilson case (see 278 N Y at p. 99) rejected attempts to argue from the fact that the *Page 431 city "subsequent to 1871, * * * made a number of grants under water." "The city", says the Wilson opinion, "is not estopped from asserting its rights by these inconsistent acts, since the errors of law of city employees and officers are not binding upon the city".
Nor does it help respondents' case that the lands in question had been partly or wholly filled in before the disputed grants were made. Such filled in lands retain their character as "land under water" (Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 21;Hinkley v. State of New York, 234 N.Y. 309, 319; City of NewYork v. Wilson Co., supra; see, also, City of New York v.Third Ave. Ry. Co., 294 N.Y. 238).
The orders should be reversed, with costs in all courts, and the matters remitted to Special Term for proceedings in accordance herewith.
LEWIS, DYE and FULD, JJ., concur with CONWAY, J.; DESMOND, J., dissents in opinion in which LOUGHRAN, Ch. J., concurs; THACHER, J., taking no part.
Orders affirmed.