The rights and liabilities of the parties under the appraisal of the arbitrators selected by the mayor and the plaintiff, are not involved in this appeal. The plaintiff claims, in his complaint, the performance of an entirely different contract, and the referee in his report treats the arbitration and the contract to purchase under it as abandoned, and he held the defendants to the fulfillment of what is claimed and alleged to be a substituted contract, in lieu of it. The plaintiff has not at any time undertaken to carry out and complete the sale and make title to the premises under the award and appraisement, and the referee has not passed upon the rights of the parties under that contract, or the ability of the plaintiff to perform on his part, or the liability of the defendants under that contract. The referee has merely found that the proposal and acceptance of the proposition and the appointment of arbitrators under the resolution of the common council, and their award and appraisal in pursuance of this authority, constituted a valid contract between the parties. But this legal conclusion does not enter into or make a part of the judgment given in the action, except, it may be, as an inducement and quasi consideration of the subsequent agreement which he finds to have been made as a substitute for that. The proposition of the plaintiff, which preceded and induced the resolution of the common council for the appointment of the appraisers, having *613been lost, its terms and the extent of the property or interest in the island proposed to be sold, is not known. But the resolution of the common council is for the purchase, at a price to be determined by arbitrators, of “ ah the private property and water rights not owned by the commissioners of emigration, or by the city of Mew York, on Ward’s island, provided said McCotter can give such satisfactory title as shall be approved by the corporation counsel.” Under this resolution, which is the basis of the contract and expresses its terms, the city was not bound to take any part less than all the private property on the island not owned by the city or the commissioners of emigration; and the agreement was conditional, depending on the ability of the plaintiff to make title to the entire property thus agreed to be purchased. The appraisal did not include that part of the island owned by Mr. Minturn, which was clearly embraced in the proposal of the common council, and there is no pretense that the plaintiff now is, or ever has been, able to give to the city a satisfactory or any title to the Minturn property. It is difficult, therefore, to see how the plaintiff could, had he undertaken to do so, have entitled himself to any relief under this resolution, and the acts of the arbitrators under it. But it is sufficient that the plaintiff in his complaint, and the referee in his report, make the right to relief to rest upon the subsequent negotiations and acts of the parties, and we can only review the case thus made and presented. Perhaps upon a second trial the action will be tried upon a different theory, and other facts will be disclosed, which will essentially vary the case and relieve it of some of the difficulties which now seem to embarrass the plaintiff’s right to any relief under the first contract, and the appraisal of the arbitrators.
Whatever may have been the power of the common council to purchase the property in question—and of this power there is probably no reasonable doubt, although I do not propose to examine or consider that question—it is very evident that there was no contract or agreement ever made for the *614purchase by the defendant of the property, a conveyance of which was tendered hy the plaintiff, at fifteen hundred dollars per acre, or any other price. The minds of the parties never met in any agreement for the purchase and sale of the property. No proposal hy the one was ever accepted hy the other. The proposal of the plaintiff to sell at the price named, was withdrawn before it was accepted or acted upon by the defendants. It was revocable until actually acceded to by the latter, and when it was withdrawn, the common council had nothing to act upon, and could only in terms make a proposition to the plaintiff to be accepted or rejected by him if he chose to continue the negotiations. This proposal, if one was made, bound no one until formally accepted by the plaintiff. When the resolution of the common council of August, 1858, was adopted, there was no proposal of the plaintiff pending, by which he was bound, and the defendants, had the common council at that time in terms acceded to the proposal of the plaintiff before then made and withdrawn, and notified him of such acceptance, could not have compelled him to perform on his part. His subsequent repentance, or change of purpose, and tender of his conveyances in October, did not make a valid contract as of the time of the passage of the resolution, or based upon it.
But there are other difficulties. The offer of the plaintiff of May 17th, 1858, was to take $1500 per acre for the land, provided it could be settled up and fully consummated at once. This proposition was never acted upon; or if acted upon, was never accepted. The resolution of the common council which is relied upon as an acceptance, makes no allusion or reference to this proposal, or to any price to be paid for the land. It simply authorizes the comptroller to purchase of the plaintiff all the land on Ward's island to which he can give a good title. It makes the comptroller the agent of the city to negotiate with the plaintiff, and purchase from him the property, giving him unlimited discretion as to price and terms of payment, only directing payment to be in city *615bonds. It does not even appear that the common council or any agent of the city ever communicated the resolution to the plaintiff or conferred with him on the subject. It was not an act designed to influence the plaintiff or to be communicated to him, but had respect solely to the agent who was empowered to act in the premises. When it shall appear that the comptroller, acting under this resolution, and the authority conferred by it, has concluded an agreement with the plaintiff for the purchase of the property, the plaintiff will have at least a plausible claim for relief, but not upon the ground that his proposal to sell at a given price has been specifically and in terms accepted by the defendant.
[New York General Term, November 4, 1861.Authority to an agent to contract, cannot entitle a third person to sue as upon a contract consummated. A. may may empower his coachman to buy a horse of B. without subjecting himself to an action at the suit of B. for the value of the horse, although the directions may have been given to the coachman, because B. had before offered to sell to A. at a price named by him. All that the common council has done to subject the city to this action is to empower its financial agent to purchase the property. That agent has not acted, and it is for the defendant alone to put its agent in motion. The plaintiff has no power to coerce action on the part of the agent, or right of action against the city, by reason of that act of the common council.
The judgment must be reversed, and a new trial granted; costs to abide the event.
Clerke, Sutherland and Allen, Justices.]