It appears to have been taken for granted, on the trial, that the plaintiff acquired the title in fee, to the premises in question, by his purchase at the foreclosure sale. The defense sought to be established was, that the plaintiff’s title was subject to a public ease*180ment or right of way ; that the locus in quo was a public street; and that the acts complained of were done by the defendant in the rightful exercise of his authority as street superintendent, and by the direction of the common council, who had control of the streets of the city.
The only evidence introduced to prove the existence of the alleged street consisted of testimony tending to show a dedication and user ; but as the judge expressly ruled, there was no proof of an effective dedication prior to the execution of the mortgage to the bank, in 1857. The only item of evi-. dence looking that way was the map made and filed by Daniel McCracken and Charles Perkins, in 1826, on which the premises were marked as a part of a street, called Burnes street. But so far as the case shows, there was no proof of an acceptance by the city, nor indeed that the parties who made and filed the map ever owned the premises, or had any right or authority to dedicate them. At any rate, if there was any evidence tending to show either an accéptance by the city, or even by the public, there was no request to submit it to the jury, and it seems the court passed upon it without objection by either party. .
But the judge also ruled that the acts of Ingersoll, in accepting payment for his building and growing crops, from the common council, in 1858, amounted to a dedication, and that such dedication was binding upon his prior mortgagee, the Eagle Bank, and also upon the plaintiff, who acquired title through the bank mortgage. I do not understand the counsel for the defendant to claim that the latter proposition can be maintained, in the precise form in which it is stated in the case, but he argues that the evidence shows that there j was a dedication of the premises, in 1826, which did not become effective, merely because it was not accepted by the public or the common council; that notwithstanding the want of such acceptance the public acquired certain rights in the premises, which were simply in abeyance ; that the possession of Ingersoll was in subordination to those rights, and *181in recognition of them; that the hank took the mortgage with notice of the character of his possession and of the rights of the public ; and that Ingersoll, by accepting payment and surrendering possession, revived the former dedication, so that it bound his prior mortgagee. But his reasoning rests upon the assumption that there was a dedication of the premises in 1826, which, as we have seen, is entirely unsupported by the evidence.
[Monroe General Term, June 3, 1867.It is claimed by the counsel for the defendant that the city had an interest in the premises, by virtue of the purchase from Ingersoll, and was not served with notice of the foreclosure proceedings; that the plaintiff therefore was not entitled to assert possession of said premises, to the exclusion of the city, at the time of the alleged trespass. If the city was not served with notice, the only consequence is that as to it the mortgage is unforeclosed, and the plaintiff is to be regarded as a mortgagee in possession. His mortgage being past due, and paramount to the rights of the city, is sufficient to maintain his possession, as against the defendant.
The only remaining question is whether the statute relied upon by the defendant as a statute of limitations, was intended to have a retro-active effect. I think it was not. Its language evidently contemplates future acts only. There is nothing in its terms warranting the idea that it was intended to divest, parties of existing rights, or to justify trespasses committed before it was passed ; yet each of those mischiefs might result from it, if it were retrospective. Full effect is given to its words by holding that it is prospective only ; and it is a general rule that a statute affecting rights and liabilities should not be so constructed as to act upon those already existing. (7 John. 477. 18 id. 138. 2 Hill, 238. 3 Barb. 306.)
A new trial should be ordered, with costs to abide the event.
Ordered accordingly.
J. C, Smith, E. D. Smith and Johnson, Justices.]