(dissenting):
The decision in this case is based, as I understand it, upon the principle that there was attached to this conveyance,, by its terms and by the provisions of the act under which. the land was acquired, a condition subsequent which, upon a failure to perform it, defeated- the conveyance and authorized a re-entry; that by reason of the appropriation by the city of New York under the right of eminent domain of a portion of the property, which was conveyed to the defendant, this condition subsequent was broken and there was thereby given to the grantors .a right of re-entry which entitled these grantors to one-half of the amount paid by the city of New York as the value of the. property appropriated by the city of New York for public purposes, and my difference with my associates is based upon my dissent from this proposition. The conveyance by the plaintiff and his associates to the corporation is not made a part of the record. All that we have is the statement in the submission that “ Oñ May 31,1864, an agreement was entered into between The Woodlawn Cemetery^ as party of the first part, and Absalom Peters and others, as parties of the second part, a copy of which is hereto annexed marked .‘Exhibit A.’ The lands .referred to in said ‘Exhibit A’ were duly conveyed to The Wood-lawn Cemetery as recited in the said agreement and contemporaneously therewith.” The agreement recites that the parties named, as parties of the second part, were the owners,of certain pieces or parcels of land therein specifically described and that they had sold *267and conveyed the same “ to the party of the first part, for cemetery purposes, under and in pursuance of an act entitled 6 An act authorizing the incorporation of Rural Cemetery Associations,’ passed April 27, 1.847, and the acts amendatory thereof, the consideration of the said conveyance being this agreement on the part of the party of the first part, to pay for the said lands, as the purchase price thereof, one-half of the proceeds of all sales of lots or plats made from such lands,” and the party of the first part, in consideration of the conveyance of the said lands by the parties of the second part, covenants that it will pay to the parties of the second part for the said lands, as the purchase price thereof, one-half of the proceeds of all sales of lots and plots made from the said lands.
We have, therefore, a statement by the parties to the controversy that the lands have been conveyed to the defendant, and as a consideration therefor the defendant had executed an agreement whereby it had agreed to pay to the grantors one-half of the proceeds of all sales of lots and plots made from the said land. I am unable to see how it can be said that, from this recital of the conveyance or from the statute under which the defendant was incorporated, there is an indication that the conveyance was other than an absolute conveyance of the land to the defendant. Certainly if this conveyance was made for a present consideration, it would be absolute, subject to no condition. Instead of the grantors insisting upon a present consideration, they accepted the obligation of the defendant to pay one-half of the amount that it would receive for the sale of lots and plots of the said lands. It may be that there was an implied covenant of the defendant that the property should be devoted to cemetery purposes, for in no other way could the agreement made by the defendant be carried out, and by the act under which the company was incorporated it was required to devote the property purchased to such purposes; but to say that that covenant constituted a condition subsequent, by which upon a breach of the covenant the title to the land should revert to the grantors, would be, I think, totally inconsistent with the declared object of the incorporation of the defendant, and the intention of the parties to the agreement and conveyance. That intent was that the defendant should sell lots or plots to those desiring them for cemetery purposes. That object would be entirely defeated if there was reserved *268to the grantors a right of re-entry. It is a familiar principle that a. condition subsequent must not be repugnant to the nature of the estate granted to which it is annexed (6 Am. & Eng. Ency. of Law [2d ed.],.504; De Peyster v. Michael, 6 N. Y. 492), and such a condition subsequent as is here sought to be implied would be void as. repugnant to the estate granted. The condition annexed to a grant subject to a condition subsequent is that upon a failure of the grantee to perform the condition upon which the grant is limited* the title of the grantee to the whole property fails, and the grantors-are entitled to re-enter and repossess themselves of the property as-if no grant had been made. A subsequent breach of the condition would work a forfeiture of the title in .the persons to whom such property had been conveyed by the grantee, and this would defeat-the title of those to whom the defendant had conveyed lots or plots-of land for cemetery purposes.
Assuming, however, that there was a condition subsequent, which. was broken upon the appropriation of a portion of the property -by the city of New York, it was the grantors or their heirs, and they only, who could take advantage of it. The election to do so could be signified by a re-entry, or some other equivalent act (6 Am,. & Eng. Ency.of Law [2d ed.], 506; 2 Washb. Real Prop. [5th ed.] 14) where it is said: “ By the common law, the only mode of taking-advantage of a breach of a condition which had the effect to defeat or work a forfeiture of an estate was by an entry, upon the principle-that it required as solemn an act to defeat as to create an estate. And when such entry had been made, the. effect was to reduce the estate to the same plight, and to cause it to be held on the same terms as if the estate to which the condition was annexed had not been granted,” and nothing short of an actual entry will serve to-defeat an estate upon a condition which has been broken. (2 Washb, Real Prop; [5th ed.] 18.) This right of re-entry is a right which, cannot be aliened or assigned or passed by a grant of the reversion at common law. “ Such right is not a reversion, nor a possibility of a reversion, nor is it an estate in land; it is a mere chose in action, and, when enforced, the grantor is in by the forfeiture of the condition and not by reverter.” (2 Washb. Real Prop. [5th ed.] 16 ; Van Rensselaer v. Ball, 19 N. Y. 102.)
The plaintiff is not, however, one of the grantors, nor, so far as-*269appears, is he the heir at law, assignee or devisee of one. Nor have the grantors, their heirs or assigns, elected by a re-entry or any equivalent act to terminate the title of the defendant to the property conveyed. The plaintiff’s claim is not that he is entitled to re-enter, but that the fee of the property vested in the defend'ant, and the grantors retained a lien thereon for the payment of the consideration which the defendant agreed to pay for the property, and as this appropriation of the property by the city of New York divested the defendant of the title to the property taken, the plaintiff is entitled-to the money received by the defendant from the city of New York as the value of the property in satisfaction of his lien for the unpaid purchase money. This position is entirely inconsistent with any right of the plaintiff or of the grantors to' re-enter and repossess themselves of the property conveyed as upon the breach of a condition subsequent. That a corporation organized for cemetery purposes acquires the title to the property conveyed to it under the statute was settled by the Court of Appeals in the case of Buffalo City Cemetery v. City of Buffalo (46 N. Y. 503); People ex rel. Oak Hill C. Assn. v. Pratt (129 id. 68), and that the relation between the grantor and the defendant subsequent to the conveyance was contractual in its nature, follows, I think, from the decision of the Court of Appeals’in Thacher v. H. C. Association (126 N. Y. 507). The obligation of an association under a certificate similar in terms to that involved in this action, issued for a loan bf money to the association, was said to be one to pay it Only out of the proceeds of the money received from the sale of lots. “ If it (the association) never received any money from the sales of lots it could not be compelled to pay any upon the certificates. If it did not receive money enough from that source to pay all the certificates, it could be required only to apply such money as it received. If it received money enough to pay them all, then it was required to apply it in paying all. And for a failure to so apply it, * * * ordinarily an action at law would be sufficient, in which the holder of a certificate could recover by showing that the defendant had received money which it ought to, but had not, applied.” I cannot see that it would make any difference whether such an obligation of the corporation was issued as a consideration for the conveyance to the corporation of a plot of land, or in consideration of the pay*270ment of a sum of money. In either case, for a valuable consideration, the cemetery company had agreed to pay to the holder of the certificates one-half bf all moneys that, it had received from the sale of lots or plots of land, and- all that the holder of the certificates could require of the corporation was that it should apply one-half of all such moneys to the payment of the. certificate.
The learned counsel for the plaintiif makes no claim that the conveyance was not absolute, nor does the submission state that any such question is involved. The answer to the claim of the plaintiif that he and the other certificate holders are entitled to this money as the enforcement of a lien for the unpaid consideration money to which the grantors were entitled for the conveyance of the property^ seems to me to be that there is nothing due by the defendant as the consideration for the property conveyed to the defendant, The conveyance was made, as it is expressly stated in the submission, in consideration of the defendant executing the agreement, a copy of. which is thereto annexed. The- grantor accepted the covenant of the defendant to pay in the future one-half of the moneys’ that it received upon the sale of lots or plots of land for cemetery purposes, and there is no allegation that that obligation of the defendant has not been fully performed. The parties to this agreement contemplated that the defendant should apply a portion Of the premises granted for avenues, paths, alleys and walks.'. The proportion of the property to be so applied was not specified, and the holders of the certificates were to have no interest in such portion of the property. What they were entitled to was an application by the cemetéry company of one-half of the moneys received by it from the sale of lots or plots of land laid out for burial purposes. It is not alleged that any portion of the property taken by the city was that which had been laid out for such purposes, in the proceeds of the sale of which the certificate holders had an interest. The appropriation of this portion of the land conveyed to the cemetery as a public street or avenue would be an advantage to the cemetery as supplying it with means of access. It could certainly make no difference to the holders of these certificates whether a portion of the cemetery lands ■was laid out by the cemetery association as a road or avenue or by the public for the same purpose. The appropriation of this land as' a public street or avenue was not thus foreign to the purposes for *271which the corporation was organized, and there is nothing to show that this portion of the property taken by the city was in excess of that properly appropriated for the purpose of avenues or roads under the agreement. It is not claimed either by the learned counsel for the plaintiff or in the prevailing opinion that the appropriation of this land by the public in any way tended to reduce the amount of land available for sale, in the proceeds of which the plaintiff or his associates would be entitled to participate. The moiety of the proceeds of the sale of lots or plots of land reserved by the defendant is required by the statute to be laid out in maintaining the cemetery and ornamenting and beautifying the grounds, thus making it more attractive and available as a cemetery and making its lots desirable to those needing burial plots; and the use of this money for that purpose would tend to increase the sale of lots and add to the amounts to which the plaintiff and his associates would be entitled. As the plaintiff and his associates have parted with the lands upon this agreement of the association to pay to them one-half of the proceeds of the sale of lots and plots of land, it seems to me that they can ask for nothing more than a strict performance of that obligation, and that as this money in controversy was not received by the association for sale of a lot or plot of land within this provision of the contract the plaintiff and his associates are not entitled to any portion thereof.
I think, therefore, that the defendant is entitled to judgment.
Judgment ordered for plaintiff as directed in opinion, with costs.