Mott v. Eno

Hatch, J.

(dissenting):

I concur in the views expressed by Mr. Justice Ingraham in this case, save upon a single question, and as that is a controlling one in the case it necessarily involves a dissent from the conclusions *603reached by the court. The facts which this case presents are involved to the last degree. They have been admirably stated by Mi-. Justice Ingraham in his learned and exhaustive opinion and need not be further adverted to by me, except so far as it is necessary to express an opinion upon the particular question which is the subject of disagreement.

It is undisputed that the act of 1847 (Chap. 203) made provision for acquiring title to the lands therein specifically described by metes and bounds. Of the lands so described, Bloomingdale road formed a part. Pursuant to the ¡n-o visions of this act, the city of Hew York instituted a proceeding to carry its terms into effect and vest in the city title in fee to the lands thus described. The petition which instituted the proceeding described such lands in the same terms, as were contained in the act. Having particular reference to the Bloomingdale road, it stated: “ The said Bloomingdale Boad being a Street in that part of the said City laid out into streets, Avenues, Squares or public places by the Commissioners of Streets and roads under and by virtue of an act of the Legislature of the People of the State of Hew York, entitled ‘An Act relative to improvements touching the laying out of Streets and roads in the City of Hew York and for other purposes,’ passed April 3, A. D. 1807.” It appears, therefore, that not only was the proceeding instituted for the purpose of acquiring title to all the lands described in the act and also in the petition, but that it was the clear and express claim made by the city in its petition that it had already acquired title to the land embraced within the Bloomingdale road; and the authority was stated upon which it relied as the basis of the claim. By the provisions of the act of 1807 (Chap. 115) lands acquired by the city of Hew York thereunder for a public .street vested in the municipality a title thereto in fee. It is evident, therefore, that by the terms of the petition notice of the claim of the city to be the owner of the fee of the land embraced within the Bloomingdale road was expressly given to property owners and persons interested therein. There is no doubt but that Sandford, as trustee of John Hopper, deceased, who is claimed to have been the owner at this time, not only of the strip of land which was taken upon the side of Bloomingdale road, but also of the fee to the street itself, had notice of this proceeding and of the claim thus made *604upon the part of the city. He was made a party to this proceeding, a substantial award was made to him for lands taken outside of the limits of the Bloomingdale road, and the awards thus made were paid to and accepted by him. One of the issues, therefore, in that proceeding raised by the petition was the right and title of the city in and to the Bloomingdale road, and it was the issues thus, raised which the commissioners subsequently appointed were called to pass upon and determine. As appears by the report made by the commissioners, they considered the subject of the ownership of' Bloomingdale road, and, as I construe their report, made an adjudication with respect thereto. Their report is addressed to the Supreme Court; they recite therein that they are commissioners of estimate and assessment, duly appointed “relative to the opening of Bloomingdale Boad from the Seventh Avenue to the Tenth Avenue in the-Twelfth Ward of the said City, the said Bloomingdale Boad being a. street in that part of the said City laid out into streets avenues squares .and public places by the Commissioners of Streets and Boads. under and by virtue of the act of the Legislature of the people of' the State of Hew York entitled ‘An Act relative to improvements-touching the laying out of streets and' roads in the City of Hew York and for other purposes,’ passed April 3, 1807.” The report, then recites the taking of the oath by each of the commissioners,, and the filing of the same in the clerk’s office of the city and county of Hew York, and then states: “And having viewed the lands and premises hereinafter mentioned and described do hereby report

“ To this Honorable Court that said Bloomingdale Boad is a. Street in that part of the said City of Hew York laid out into streets, avenues squares and public places by the Commissioners of streets and roads under and by virtue of the Act of the Legislature of the-People of the State of Hew York entitled ‘An Act relative to-improvements touching the laying out of streets and roads in the City of Hew York and for other purposes,’ passed the 3rd day of April in the year of our Lord 1807.” Then follows a description of' •123 parcels of land for which awards of damages are made, the form being the same in each case, differing only in the names of owners,, boundaries and amounts.

It thus appears that, not only was the issue raised before the commissioners with respect to the fee of the Bloomingdale road, but *605that they viewed the land and considered such question ánd reported upon such subject. With respect to this matter their report is an ■adjudication of that question, is complete in its terms and states the •condition of the title, the force and effect of which is to determine that it belongs to the city of Hew York, as it was acquired by virtue of an act which vested title thereto in the city. That the ■commissioners made such adjudication is not only established by the determination as exjwessed in their report, but is clearly evident from all the other awards which they made. These awards were all for strips of land abutting upon the Bloomingdale road, and it would necessarily follow, if the commissioners made no adjudication as to the title in Bloomingdale road, that the proceeding which was confessedly instituted to take title to all these lands results in the acquirement of title by the city to the strips upon each side of the Bloomingdale road and leaves the fee of the'road unaffected by the proceeding and the title still in the abutting owner. The result of such a proceeding is so manifestly inconclusive as to be absurd. It would be a theme for ridicule were it not so serious in its results. The existence of such a condition is so clearly at variance with the issues presented by the petition and the necessary understanding of the parties affected by the proceeding as to call for the rejection of such a construction of its effect, unless the adjudication be so faulty in its expression and determination as to admit of no other result. It is evident, however, that the commissioners themselves considered the issues thus presented, and they made in their report an intelligible adjudication upon the subject; for whatever else may be said of it, it is at least understandable. The intention was to dispose of the issues, and the language of the report leaves no doubt but that the commissioners assumed to determine that the city was vested with the fee of Bloomingdale road. Such adjudication having been made and being clear and intelligible and clearly within the issues they were required to determine, it became when confirmed a binding adjudication, having the force and effect of a judgment. It is so made by the express provisions of section 178 of chapter 86 of the Revised Laws of 1813, as well as of the act of 1807 and is supported by authority. (Matter of Opening Eleventh Avenue, 81 N. Y. 436; Matter of Commissioners of Central Park, 50 id. 493; Spears v. Mayor, 87 id. 359, and many other cases.-)

*606I think that no distinction in principle can be made between Matter of Opening Eleventh Avenue (supra) and the present case. Therein the award which was made determined that the owners-were only entitled to a nominal compensation, for the reason that such lands had been treated by the commissioners as dedicated^-to a, public use. The court, on motion to" confirm in that case, held that this conclusion of the commissioners was wrong, and, therefore, sent the case back to the commissioners to make a substantial award. Had the report making the award of nominal compensation been confirmed, it would have become a binding ad judication, even though it was in effect erroneous in failing to award substantial damages. Here, the report of the commissioners is an adjudication that the fee of the Bloomingdale road was in the city of New York, and that report was confirmed. It is, therefore, a binding adjudication, unless-a single element calls for a different conclusion. In Matter of Opening Eleventh Avenue (supra) there was an award of a nominal sum made by the commissioners to the owners, and this is the only distinction in principle between that case and the present. The prevailing opinion in the ¡mesent case reaches the conclusion that such distinction is vital, -by reason of a constitutional prohibition (Const. [1846], art. 1, § 6),, and that, therefore, the report and confirmation are without validity. We have no quarrel with the constitutional provision that land appropriated in proceedings in invitwm for a public use cannot be taken without just compensation being made therefor, and proceedings seeking such result which fail to make an award where one is required are void. So far as I am aware, no such rule has been applied in a case where it appeared upon the face of the proceedings that such an award was not necessary, when a question of title only was involved. Compensation follows title. In the present case, the city of New York instituted proceedings to acquire title to lands; the commissioners adjudicated that the municipality was the owner in fee of a part of the lands thus sought to be acquired. Manifestly, under such an adjudication, the award of damages to abutting owners having no interest was not required; and as the city was the owner and taking the whole of the land required for the street, no award was necessary to be made to it. If the commissioners had awarded to the city of New York a nominal sum for the land in connection with their adjudication, upon confirmation the title *607would have become absolute, even though the adjudication as to ownership was erroneous. That would not invalidate it, within the authority to which we have called attention. It would seem that the constitutional provision has no application to such a case. All-that is necessary to protect the rights of every person is adjudication of title, the making of awards and payment. When lands of other owners are taken and paid for, the adjudication of its own title protects every right and is as conclusive as though an award of damages had been made. It is evident that the commissioners when they made their report adjudicated that this land belonged to the city of Hew York, but made no award therefor because no award was required to protect the rights of the city; and the court, when it confirmed this report and this adjudication of title, clearly had the right to consider that no award in such case was necessary, as the adjudication, together with the awards which were made for lands taken in the proceeding from other owners, operated to complete a proceeding by and through which all of the land embraced within the proposed street became vested in the city of Hew York.

It may be conceded that it is somewhat anomalous for a municipality to institute proceedings to condemn lands for a municipal purpose, which it owns at the time the proceeding is instituted. But in considering this subject, we are to bear in mind that the Bloorningdale road was at the time of the proceeding a public road and . used as such for public travel. So far as appears there was no record in existence showing that in fact the title to this road had been acquired by the city by proceedings under the act of 1807, and yet the Legislature and the city were aware that such was the fact and in order to make a complete record of title embraced it within the act of 1847 and the proceeding, and thereby gave to all persons interested an opportunity to contest its claim if they had any valid right. It is also quite inferable that, as all of the land was to be acquired for a public street, it was deemed wise to embrace the road in order that any claimed easements or other interests might be considered and finally adjudicated. Under such conditions it is easily seen that prudence would suggest that the land thus proposed to be devoted to a.public use should have no flaw in its title. This anomaly fails in the face of such conditions. The proceeding and adjudication rested upon intelligent foresight. There was an issue *608and an adjudication of the city’s rights, and such rights were intended to be established by an indisputable record.

Assuming that we are wrong in the above construction, when notices were given to the parties in interest of the confirmation of such report, and abutting owners Were confronted with an adjudication that the city was the owner of the Bloomingdale road, they were required to make objection to such report and adjudication, or be bound thereby. BTo objections were made, and the party in whom it is now claimed that the title vested to this part of the Bloomingdale road affected by this action was a party to the proceeding and received awards for lands taken therein. As, therefore, this question was within the issue presented by the proceedings, and the commissioners considered and reported upon such subject, in which they adjudicated that the title was in the city, such adjudication as to all parties thereto was final and conclusive, and when confirmed it operated as a judgment declaring the fee of the Bloomingdale road to be in the. city of Blew York. If we are right in this conclusion it is clear that the plaintiffs have no title or interest in these premises.

It follows that the judgment should be reversed and a. new trial granted, with costs to the defendant appellant to abide the event.

McLaughlin, J., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, without costs.

The following is the opinion of the referee :

Hamilton Odell, Referee:

This is an action of ejectment. The allegation of the complaint is that the plaintiffs are “the owners in fee of an undivided interest in, and entitled to the possession of,” a parcel of land on the easterly side of Broadway as at present located, between Fifty-second' and Fifty-third streets, and “ being a part of the portion of said Bloomingdale Road closed under the provisions ” of chapter 890 of the Laws of 1869. The defendant admits that he is in possession of the premises, denies the plaintiffs’ title, and alleges title, by conveyances and otherwise, in himself.

Proof has'been made of a grant by Governor Nicolls in 1667 to Vanburgh and others of a tract of land north of the “ Great Creeke or kill,” and stretching from the Hudson river eastward 250 rods, and also of a deed by Aernou t Webbers to John Balme in 1713, and a deed by JohnBalme to Matthias Hoppe (or Hopper) in 1714, all of which, it is claimed, include the premises in dispute; hut how title got into Webbers or out of Hopper does not appear. John Hopper (the elder) was a son *609of Matthias Hopper. He died prior to July 19,1779, leaving a will dated October 13,1778, which was duly probated, and by which he devised to his five children and his four grandchildren (the latter the children of his deceased sonWissell) all of his lands “ situate in the outward of the city of New York.” He directed that the said lands he divided into six equal parts, and that a chart or map thereof be made, and that the parts be distributed by lot among his said children and grandchildren, the latter to receive one share.. Jemima, one of the children, was the wife of John Horne. Mary, one of the grandchildren, was the wife of Lawrence Allwye. On February 4, 1783, a partition agreement was entered into by the parties interested under the will, which was executed by John ' Horne in behalf of his wife Jemima, and by Lawrence Allwye in behalf of his wife Mary, and by Ann Hopper, “ mother and guardian to Ann Hopper, John Hopper and Nicholas Hopper,” the other grandchildren, who were minors. In Blackman v. Striker (142 N. Y. 558) the court said: “The heirs of John Hopper the elder took title in severalty to their respective allotments of his estate by force of the devise to each contained in the will, the making of the map or chart directed by the testator, the execution of the agreement for the partition or division directed by the will, and the result of the drawing whereby each of the six shares were* specifically described and located upon the farm.”

The said partition agreement recited that John Hopper was possessed “of lands and tenements situate in the outward of the city of New York-adjoining, the road called the Bloomingdale Road, running from the west side of said road to the North River, and from the east side of said road to the Commons;’’ and that the parties had agreed to lay out the farm on the west side of the road in six equal lots, and on the east side of the road in six equal lots, and to “match” each lot on the west side with a lot on the east side — “ then to be drawn for in the manner mentioned in said John Hopper’s will.” In the-lottery that followed, lot 6 on the east side and lot 6 on the west side fell to the testator’s son John; and on February 15, 1783, the other parties in interest conveyed the said lots to him — the deed containing substantially the same recitals as were contained in the agreement, and describing the lots as on either side of the Bloomingdale road, and defining their dimensions by chains and links, “as by a draft or chart thereof made by Evert Bancker, Junr., may more fully appear, reference thereunto being had.” According to the Bancker map the distance from the Hudson river to the westerly side of the Bloomingdale road, along the northerly line of the Hopper farm, was sixty chains and fifty links, and the distance from the westerly boundary of the Commons to the easterly side of the road, along said northerly line, was twenty chains and fifty links, and the width of the road was given as fifty links. Lot 6 On the east side was but two chains and fifty-five links in width and was located directly opposite to the northerly part of lot 6 on the west side, which was seven chains and fifty links in width.

The defendant contends that Bloomingdale road was opened by the Dutch prior to the English occupancy of the island, and that the fee of the road was *610vested in the Dutch government and passed to the English crown; that neither Matthias Hopper nor John Hopper, fhé elder, had any title to the roadbed; and that the heirs of the latter made no claim thereto, as shown by the recitals in the partition agreement and the deeds executed in pursuance or completion of that agreement, which expressly described the elder John Hopper’s possessions as adjoining the road and running east and west from the sides thereof. The proofs do not warrant my finding, as a matter of fact, that the Bloomingdale road was' a cifeation of the Dutch. . They surrendered possession of the island to the Eng- ■ lish in 1664. The earliest record relating to the road to which my attention has been called is a report dated June 16j 1707, of commissioners appointed by an act of- the Colonial Legislature, passed in 1703,* which directed them to lay out roads, etc. One of the roads laid out by the commissioners in the county of New York they describe as follows: “From the house at the end of New York Lane there is likewise to lye a road turning to the left-hand, the course being northerly and so by Great Kills and forward as the said road now lyes, unto Thennis Edis’s and Oapt. D’Keus, thro’ the isaid Edis’s land.” There has been no location of either New York' lane or Edis’ or D’Kays’ lands. But it has been assumed and correctly assumed, probably, that the road here referred to as existing in 1707 was a thoroughfare of some sort which extended from the city to a settlement at Bloomendael. Whether it was a public highway in the legal sense, opened by public authority or dedicated to public use, does not appear. The fact that it existed in 1707 does not warrant the presumption that it existed as a legal highway prior to 1664. In Holloway v. Southmayd (139 N. Y. 399) the court say the Bloomingdale road was opened as a public highway by the public authorities over the land of “Theufiis Ides” in 1707. In his Treatise on the “ Estates and Rights of the Corporation of the City of New York” (p. 385) Judge Hoffman says that it is apparent that no roads were opened tlirough the county of New York without compensating the owners, unless they were laid out under the act.of 1703 and its renewals; and that one of the roads.so laid out was the ‘ ‘ Bloomendale Road,” which, according to a recital in an act passed November 25,1751,* was four rods in breadth and ran “from the now dwelling house of John Horne thro’ Bloomendale District or Division to the now Dwelling house of Adrian Hoogelandt.”

The plaintiffs claim that, as John Hopper,, the elder, owned the land on both t sides of the Bloomingdale road, he was, prima facie, the owner of the fee of the roadbed also subject to the public use or .easement. This'claim is well supported by authority. (Matter of John and Cherry Streets, 19 Wend. 675; Mott v. Mayor, 2 Hilt. 363; People v. Law, 34 Barb. 501; Wager v. Troy Union R. R. Co., 25 N. Y. 529.) The presumption is that " the ground was originally taken from the adjoining owners and for the sole purpose of being used as a thoroughfare.” (Dunham v. Williams, 37 N. Y. 251; Haberman v. Baker, 128 id. 259.)

The partition deed by which lots 6 and 6 were granted and released to John Hopper, Jr., by the other heirs or devisees of John Hopper, Sr., describes the one as being on the east side, and the other as being on the west side of the Bloomingdale road, and respectively twenty chains and twenty chains and fifty links in depth. Did John Hopper, Jr., acquire title to the fee of the road in *611front of the two lots? I think so. The presumption is that a conveyance of land bounded by an existing street carries the fee to the center of the street. (Mott v. Mott, 68 N. Y. 252; Matter of Ladue, 118 id. 219; Haberman v. Baker, 128 id. 257.) A grantor of land abutting on a highway may reserve the highway from his grant, but the presumption in every case is that the grantor did not intend to retain the highway, and such reservation will not be adjudged except when it clearly appears froni the nature of the conveyance that it was intended. (Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 291.) In Lozier v. New York Central R. R. Co. (43 Barb. 469) the court said: “If it is the intention of the grantor who conveys lots having streets along them to exclude the streets, his description must be clear and certain showing such intention.” In that case the, deed described the property as “ village lots Hos. 11,15,17 and 19, on the north side of Green Street,” and it was held that the grantee took to the center of the street. The same rule was applied in Greer v. N. Y. C. & H. R. R. R. Co. (87 Hun, 346) where the lots were described as situated on ‘ ‘ the west side of Horth Market Street.”

John Hopper, Jr., died in 1819, leaving him surviving his widow and three grandchildren, the children of his deceased daughter Mary Striker. He left a will dated September Í0, 1815, by which he disposed of all his real estate. This will received a construction in Striker v. Mott (28 N. Y. 82). The plaintiffs are the- descendants of the testator, and, as such, are entitled to undivided interests in the bed of the old Bloomingdale road lying between the said lots 6.and 6, and as it existed prior to 1847, unless the interests they might otherwise claim have been alienated or extinguished by grants or proceedings hereinafter referred to.

It may be mentioned here that, although the commissioners appointed under the act of 1703 laid out a road four rods in breadth, running northerly from the end of Hew York lane through the Bloomingdale district or division, the actual breadth of the road was but two rods at the time of the Hopper partition in 1784. This appears by the Banckei map, on which the road is represented as fifty links in width. The reduction in. width seems to have been effected by proceedings authorized by and taken under the act of 1751 above referred to. (Blackman v. Riley, 138 N. Y. 327.)

In 1787 an act (Chap. 61) was passed entitled “ An Act for the better regulating the' public roads in the city and county of Hew York.” The mayor, aldermen and commonalty were made commissioners “to regulate and keep in repair the present public roads or highways, and to lay out, regulate and keep in repair such other public roads or highways as shall hereafter be laid out in the said city and county.” They were authorized and empowered to widen or alter all public roads and highways already laid out in said city and county to such convenient breadth, not exceeding four rods nor less than two rods, as they should judge fit to make them passable for horses and carriages. It was provided that if in widening or altering any such road or highway they should take or require for such purpose the lands of any person or persons, notice should be given to the owners; and that if the commissioners and owners should not agree as to the amount of compensation to be paid for the lands so taken, a jury should be summoned who should “inquire of and assess such damages and recompence as they shall, under all the circumstances, judge fit to *612be awarded to the owner or owners of such land, according to their several and respective interests and estates * * * in the same; ” and it was declared that the verdict of such jury and thejudgment of the Mayor’s Court thereon; and the payment or tender of the sum or sums so awarded to the owner or owners, should he binding “to all intents and purposes against the said owners and their respective heirs, executors, administrators and assigns, claiming any interest or title in or to the same land, and shall be a full authority to the said commissioners to • cause the said land to be converted to, and used for the purposes aforesaid.”

It is in evidence from the proceedings of the common council that on May 14, 1703, on the report of the committee on the Bloomingdale road, it was ordered “that the said road from its commencement at Horns house to Nicholas DePeyster barn be immediately opened to its proper & legal width of four rods,” and Aldermen Furman and Campbell were appointed a committee “ to attend to the opening of the said road.” In September, 1797, a petition was presented to the common council praying for the opening of Bloomingdale road to its proper width of four rods, and it was “Ordered that Aldn Furman, Beekman & De la Montagnie be a committee to direct the proprietors of the land where the road is not of its proper width to remove their fences, & then to direct the Road Master to work & put the road in good order.” When the road was actually widened has not been shown. It was prior to 1819, for it is not disputed, I believe, that by the Randel map made in that year, and by the Doughty map made in the year following, the width of the road is shown to have then, been about sixty-six feet. The learned counsel for the defendant claims that there was no authority for the widening except the act of 1787 above referred to, and that, therefore, it must be presumed that the work was done under that act; and also that the act contemplated the taking by the city of the fee of any land required for the opening or widening of1 any road opened or widened under its provisions. There is no evidence that any proceedings whatever were taken, under the act of 1787 for the widening of Bloomingdale road. Even if the presumption be as counsel contends, it is not important, as: the courts seem to have decided adversely to his latter claim. (Van Amringe v. Barnett, 8 Bosw. 857, 372; Deering v. Reilly, 167 N. Y. 184, 191.)

On May 5, 1847, an act (Chap. 203) was passed entitled “An Act to lay oüt a new street in the twelfth ward of the city of New-York, and to keep open a part of the Bloomingdale road in said city.” It affected a parcel of land described with great particularity, beginning at the southwesterly corner of the Seventh avenue and Forty-fifth street, and extending by various courses to the Tenth avenue and Seventy-first street, and thence by various courses to the place of beginning, and such land was declared “for all legal purposes to be one of the streets of the said city in like manner as if the same had been so laid out by the commissioners appointed in and by the act entitled ‘ An act relative to improvements touching the laying out-of streets and roads in the city of New-York, and for other purposes,’ passed April 3, 1807.” It is, I believe, admitted that the Bloomingdale road as it existed in 1847 was wholly within the boundaries of the parcel of land referred to. At all events, between Fifty-second and Fifty-third streets the westerly boundary line of the said parcel was located *613several feet to the west of the westerly line of the then existing road, and the easterly boundary line was located to the east of the easterly line of said road, at a distance from said easterly line of one foot and three inches at the northerly side of Fifty-second street, and of five feet and nine inches at the southerly side of Fifty-third street.

The common council proceeded promptly to lay out the new street. They resolved that “ the Bloomingdale Boad from the Seventh Avenue to the Tenth Avenue be opened according to law, and that the Counsel to the Corporation take the necessary measures for that purpose; ” and on the 1st day of June, 1847, on the petition of the mayor, aldermen and commonalty, the Supreme Court, sitting at Albany, granted an order appointing three commissioners of estimate and assessment for the purpose of carrying the said act of May fifth into effect. Notice of the intention to present such petition to the court, and of the object thereof, was duly given by publication and posting, as required by section 9 of chapter 209 of the Laws of 1839. On the 16th of July, 1847, the said commissioners duly qualified, and thereafter various proceedings Were taken by and had before them, all of which, together with their awards for damages and their assessments for benefits and descriptions of property required to be taken for the purpose of said improvement, were set forth in their report to the Supreme Court dated the 5th day of March, 1849.

On behalf of the plaintiffs, objections are made to the validity of these proceedings. In the first ifiace, attention is called to the settled rule that where it is attempted to take lands from the owner by statutory proceedings, the requirements of the statute must be strictly complied with, or the proceedings go for nothing, (Doughty v. Hope, 3 Den. 594; People v. Hulburt, 46 N. Y. 113; Matter of City of Buffalo, 78 id. 362.) It follows, of course, that the burden of showing strict compliance is upon the party claiming under the proceedings. (Sharp v. Speir, 4 Hill, 76.) One objection alleged is that “the proceedings were void'because • there is no proof that the Common Council duly authorized the same.” The proof is that the resolution above referred to was adopted by the board of aider-men on May 6, 1847, and by the board of assistant aldermen on the same day, and was approved by the mayor on the day following. But the point of the objection is this, that by section 7 of an act entitled “An Act to amend the Charter of the City of New York," passed April 7, 1830 (Chap. 122), it is provided that all resolutions which shall recommend any specific improvement “involving the appropriation of public monies, or taxing or assessing the citizens of said city," shall be published immediately after the adjournment of. the board in all the newspapers employed by the corporation, and that “whenever a vote is taken in relation thereto, the ayes and noes shall be called and published in the same manner.” The resolution in question was not so published, nor, when the vote was taken, were the ayes and noes called and published in the manner prescribed by the act. My opinion is that it was not necessary to do either; that the resolution of May sixth was sufficient in form and was properly adopted and approved; that it did not recommend an improvement “involving the appropriation of public monies, or taxing or assessing the citizens” of the city within the meaning of said section 7, and that, therefore, the objection should not be allowed.

*614A second objection is that the notice of the application for the appointment of commissioners of estimate and assessment was insufficient, in that it did not state “the nature and extent of the intended improvement,” as required by section 2 of the act of 1839. It was' stated in the said notice “ That the nature and extent of the improvement intended is the opening of the Bloomiiigdale Road in the said City from the Seventh Avenue to the Tenth Avenue.” The same point was made and was sustained in Matter of Commissioners of Central Park (51 Barb. 277), and the court, referring to the provision of said section 2, said: “ Under this provision I think it is necessary that the whole extent of the intended opening should be stated in the notice. The owners are to be informed by it what property is to be taken.” Certainly,- there was nothing in the published notice in question that informed the owners of property along the line of the Bloomingdale road what, if any, portion of their property would be required for the contemplated improvement. ■Counsel argues that the act of 1847 was referred to in the notice, and that the law presumes that every citizen knew what the act provided, and so knew the boundaries of the land which it was proposed to ■ take, and that, therefore, the statement in the notice of the nature and extent of the improvement was quite sufficient. He is mistaken as to the fact. The notice made no reference to the act, but if it had, it would not. have satisfied the rule declared in the case last cited. In that case the notice contained a general description of the property included in the proposed improvement — “ as shown and delineated on a-certain map of the same made by Gardner A. Sage, city surveyor, and now on file in the office of the Commissioners of Central Park.” The court said (p. 304): “A reference to a map on file in some public office is not a compliance with the statute. ”

A third objection is that the commissioners of estimate arid assessment did not give such notice of making their report as the act of 1839 prescribed, because the notice given by them did not require parties or owners affected to present their objections to the commissioners. Section 5 of the act of 1839 provided that any person or persons whose rights might- be, 'affected by the estimate and assessment, and who should object to the same, might, within thirty days after the first publication of the notice referred to, state his, her or their objections in waiting “to the said' commissioners.” The notice as published requested all persons who might be opposed to the estimate and assessment to present their objections to “John R. Maurice, Esq., -the Chairman of the said Commissioners,” at his residence in Spring street. There is no merit in this objection. The statute declares to whom an objecting party must state his objections. It does not require the commissioners to give any notice of the time when or place where or the persons to whom such objections must be presented. Herein the case differs from Adriance v. McCafferty (2 Robt. 153). In that case the statute (Laws of 1841, chap. 171, § 1) expressly provided that the notice to be given should 1 ‘ contain a request for all persons * * * to present their objections in writing to the chairman of the commissioners or assessors.” It was held that a ■notice requiring objections to be presented to “the undersigned“ (the assessors) did not satisfy the statute.

A fourth objection is' that there is;no legal proof that the report of the commissioners was confirmed by the court. The burden of showing confirmation was *615upon the defendant. By section 178 of chapter 86 of the Revised Laws of 1813 confirmation was required to be “by rule or order.” No such hule or order has been produced. There is no direct proof that any was ever made. None has been found in the office of the county clerk, though diligently searched for. The defendant, however, insists that the fact that the court did make an order confirming the report is clearly established by the proofs he has offered, which consist of the following: 1 ,

First. Testimony of Mr. Harkness that about December, 1900, he examined the report of the commissioners, and that there was then a cover (now missing) on such report, on which was written— “The foregoing report of the commissioners confirmed by the Supreme Court in General Term, March 31,1849. James Connor, Clerk.” It is proved that James Connor was at that date clerk of the county of New York. When or by whom the said indorsement was written does not appear.

Second. An entry in a book produced from the office of the commissioner of public works entitled—“Assessment Ledger C. Openings. Street Commissioner’s Office.” On page 12 of the said book, under the heading — “ Broadway opening from Seventh to Tenth Avenues ” — is a summary statement of assessments and awards, and then the following: “ Confirmed by the Supreme Court March 31, 1849. Ordered open by the Common Council August 1,1849. Awards payable December 1, 1849."

Third. An .entry in a book produced from the bureau of the collector of assessments and arrears entitled — “Assessments. Avenues and Streets. 1839 to 1853. Street Commissioner’s Office.” On pages 334 to400 inclusive is contained an amended abstract of the estimates and assessments of the commissioners appointed “ In the matter of the application of the Mayor, Aldermen and Commonalty of the City of New York, relative to the opening of Bloomingdale Road from the Seventh to the Tenth Avenue in the Twelfth Ward of said city” — and at the foot of page 400 is written—“Confirmed March 31, 1849. Ordered open August 1, 1849. Abner Sandford, Collector."

Fourth. Publication of the confirmation of the report by the court in the list of decisions of the General Term printed in the daily papers, to wit, in the Evening Post of March 31, 1849; in the Herald of April first, and in the Tribune and Morning Express of April second.

Fifth. Resolution — adopted by the board of assistant aldermen, on July 12, 1849, and by the board of aldermen on July sixteenth, and approved by the mayor on July eighteenth—“that the actual widening of Bloomingdale Road between Seventh Avenue and Tenth Avenue take place on the first day of August next ensuing, and that Abner Sandford be, and he is hereby, appointed to collect the assessments laid for that purpose.”

Sixth. Payment by the city to parties damaged by the opening of the damages awarded, and payment to the city by parties assessed for benefit of the sums assessed.

Passing by the question of the competency of these items of evidence, and giving to them all the probative force that can reasonably be claimed for them, they show that the application to confirm the report of the commissioners was *616granted by the court, and that thereafter the new street was opened by direction of the common council, and that parties (or some of them) whose lands were taken for the purposes oSthe improvement were paid the damages awarded to them out ot assessments levied upon property found to be benefited. They do not show that the decision of the court was ever made, complete and effective by a rule Or order, or that it was ever made a record of the 'court or entered in the minutes of the court as á part of its proceedings, as in Gerity v. Seeger & G. Co. (163 N. Y. 119). There was no law, statute or rule of court that required the clerk to indorse the action of the General Term upon the motion papers, or that required any memorandum of that action to be inserted in any record relating to street openings' kept in any office or bureau or department of the city government. Neither the indorsement on the report nor the entry in the assessment ledger is an official record in any proper sense, nor is either made “presumptive evidence of” its contents by section 955 of the Code of Civil Procedure, as argued by counsel. (Board of Water Commissioners of Cohoes v. Lansing, 45 N. Y. 21; Parr v. Village of Greenbush 72, id. 471; Tripler v. Mayor, 125 id. 623.) The learned counsel for the defendant says that “ the object of all evidence is to produce conviction.” This is true. Conviction is belief, and we may all reasonably believe, and probably all the parties to this controversy do believe, that the court did make an order confirming the report of the commissioners, and that the common council did not proceed to open the new street until such order was duly signed and entered. But such belief is born of inferences from facts and incidents which, it seems to mé, do not make up for the utter absence of direct proof which the law requires in cases where the property of one is forcibly taken from him by authority of a statute and bestowed upon another. In such cases presumptions have small place. (Sharp v. Speir, 4 Hill, 86; Adams v. S. & W. R. R. Co.,. 10 N. Y. 328; People v. Hulburt, 46 id, 110; Hilton v. Bender, 69 id. 76; Matter of City of Buffalo, 78 id. 366; Elwood v. Northrup, 106 id. 172.) The man who claims title through such a proceeding must prove strict compliance with the statute. If by the statute the proceeding is incomplete until approved by an order of court, he must show that the order was made. (Cleveland v. Boerum, 27 Barb. 254.) Proof that the court decided to grant the order is not sufficient. My conclusion is that this fourth objection should be sustained.

But if I am wrong in this, and if my conclusion ought to be that the facts proved fairly authorize the legal inference that an order of confirmation was made and entered, there remains one other objection from which it seems impossible to escape, and that is that the confirmation by the court was irregular and of no effect, because the notice given by the commissioners did not state where their report would be presented and the motion to confirm it be made. By section 3 of the act of 1889 it is made the duty of the commissioners “ to report fully and separately to the said court the amount of loss and damage, and of benefit and advantage, to each and every owner, lessee, party and person entitled unto or interested in any lands, tenements, hereditaments or premises so required for the purpose of any such operation or improvement.” Section 4 provides that they “ shall give notice of the time and place of making their said report” by publication and posting for at least sixty days. The notice given by *617the commissioners failed to state where the report would be made. It was as follows: ‘ ‘ The said commissioners further give notice that their report in the above matter will be made and presented to the Supreme Court of the State of New York, before the Justices of the said court, on the first Monday of March next (being the 5th of March, 1849) at 10 o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, and that then and there a motion will be made to the said court that the said report be confirmed.” I do not see how the case can be distinguished from that of Matter of Broadway & Seventh Avenue R. R. Co. (69 Hun, 275). That was a proceeding taken under the “ Condemnation Law ” —chapter 23 of the Code of Civil Procedure. Section 3361 requires that there must be annexed to the petition a notice of ‘ ‘ the time and place ” at which it will be presented to a Special Term of the Supreme Court held in the judicial district where the property is situated. The notice actually given was of an application “to the Special Term of the Supreme Court of New York, on Thursday, the 16th day of March.” It was held that this was not a compliance with the law; that “no place whatever was mentioned,” and that the statute required the petitioning party “ to be precise and definite in his notice as to the place of presentation of his petition.”

It is insisted by the defendant that, even if the proceedings were irregular or invalid, the plaintiffs are estopped from asserting the fact, for the reason that their predecessor in title (the trustee under the Hopper, Jr., will) accepted the award for damages made to him by the commissioners. My opinion is that this contention should be overruled. The premises in question belonged to John Hopper, the younger. He died in 1819 leaving a will, by the 2d clause of which he devised all his real estate in the city of New York unto his three grandchildren, Garrit Hopper Striker, Ann Striker and Wyntie Mott, and their heirs forever, “to be disposed of” by his executors as directed in said will. He directed that the said real estate should not be sold, but that his executors should, from time to time, lease the same and pay over the rents thereof annually to his “ said heirs in equal proportions; ” and that ‘ ‘ in case any of my said heirs and devisees shall die without lawful issue, then and in such case my will is that the share of the one so dying shall be and enure to the sole use, * * * benefit and behoof of my said grandchildren,'and the survivor of'them, and the heirs of such survivor forever.” This will was construed by the grandchildren as vesting them with the fee simple of the property devised, and in 1820 Ann Striker began proceedings in the Mayor's Court to partition the Hopper farm. The only parties to those proceedings were the plaintiff and her brother Garrit and her sister Wyntie, each of whom claimed to be seized in fee of an equal one-third -of the property of which partition was sought. Commissioners were appointed who made partition, dividing the farm into three parts, one of which they set off in severalty to Ann Striker, the plaintiff. The part so set off to her included all the land on both sides of the Bloomingdale road between Fifty-second and Fifty-third streets. Judgment confirming the report of the commissioners and decreeing an actual partition in accordance therewith was duly entered. In Striker v. Mott (28 N. Y. 82) it is stated that in April, 1821, partition deeds were executed between the parties for the respective parcels allotted in severalty to each, and that *618the grandchildren thereafter enjoyed in severalty, according to the partition.” The Hopper will-was afterwards brought into court for interpretation, and in Brewster v. Striker (2 N. Y. 19), and again in Striker v. Mott (supra), its meaning and effect were declared to be — that as to each one-third of the estate the executors, as trustees, took a legal estate by implication for the life of the grandchild for whose benefit the one-third was devised, with remainder in fee to the issue if any of that grandchild; and in default of such issue living at such grandchild’s death, remainder to the survivors or survivor of the three grandchildren. In 1847, therefore, the situation was — that as to an undivided one-third the trustee had an estate for the life of Garrit H. Striker, in whose issue the remainder in fee was vested; as to another undivided one-third the trustee had an estate for the life of Winifred Mott, in whose issue the remainder in fee was vested; and as to the remaining undivided one-third there was an estate in the trustee for the life of-Ann Striker, who was without issue, and a contingent remainder in fee in her brother Garrit and her sister Winifred. The" trustee was Edward Sandford, who had been appointed in the stead of the trustees named in the will,- all of whom had • died. In the report of the commissioners of estimate and assessment appointed under the act of 1847, one of the parcels of land “ required to be taken for the purpose of opening Bloomingdale Road ” is described as commencing at the point of intersection of the northerly line of Fifty-second street and'the easterly line of the road as then opened, and running easterly along the northerly line of Fifty-second street one foot and three inches “to -the easterly line of file Bloomingdale Road as the same is to he opened;” thence northerly along the said new easterly line one hundred and seventy-two feet and two inches to land of Fitz and Johnson"; thence westerly along said land five feet to “ the easterly line of the present Bloomingdale Road as now opened and used;” and thence southerly along the last-mentioned line one hundred and seventy-three feet and six inches . to the point of beginning. It was also stated in the said report that “ Edward Sandford, trustee of John Hopper, deceased, is seized in fee of, in and to ” the said parcel of land, and that the same was designated on Damage Map No. 1 as lot No. 27, and that “We, the said commissioners, do further report that we have estimated and assessed the loss and damage of the above named Edward Sandford, trustee of John Hopper, deceased, the owner of the said piece or parcel of land, * * * by and in consequence of the opening of Bloomingdale Road as aforesaid, and of the said owner relinquishing the said * * * piece or parcel of land for that purpose, to amount to the sum of two , hundred and six dollars.” This'award was paid to Mr.- Sandford on December 7, 1849, as appears by a receipt signed by him as “ trustee of last will of John Hopper, deceased,” contained in a book entitled— “ Receipts. Avenues and Streets. 0. Street Comm. Office”—now on file in the office of the president of the borough of Manhattan.

Lot 27, above referred to, was- part of the share allotted to Ann Striker in severalty in the partition of 1820, which was afterwards declared to be invalid. The learned counsel for the defendant says that that share was held by Sandford as trustee for Ann Striker for her life. In a limited or qualified sense this is true. In Striker v. Mott (supra) it was held by the Supreme Court that the only *619effect of the judgment in partition, and of the partition deeds, was to adjust the share of the rents and profits to which the devisees of John Hopper, Jr., would respectively be entitled during their lifetimes, and this conclusion seems to have been approved by the Court of Appeals. So that, as I understand it, Sandford, as trustee of the whole estate, was required by the agreement made between the three tenants for life to account to Ann for the rents and profits of the share set apart to her by the judgment and deeds. But the judgment and deeds in no way affected the title vested in the trustee, which was an estate in each undivided one-third for the life of the grandchild “for whose benefit that third was devised.” The trustee took only such an estate or interest in the devised premises as the purposes of the trust required. (Nicoll v. Walworth, 4 Den. 388.) His powers were limited by his duties. He had no power of sale. Sale or alienation of the property was expressly forbidden by the testator. His direction was that his executors should “from time to time lease or rent the same on such terms and for such rent as they may deem most advantageous to my said heirs,” and pay over the rents, issues and profits to the said heirs in equal proportions. Upon the death of a grandchild the trust ceased as to his or her undivided share, and the remaindermen in fee became at once entitled to its possession. The question then is whether Sandford, as trustee, having only such an estate and possessing only such powers as are narrated above, could, by any act or omission on his part, confer upon another party a greater estate or interest than he himself possessed. He was trustee for the life tenants only; by their deaths his office as trustee, with its estates, powers and duties; would be terminated: could he, by any act'done by him while in office and in his character and capacity as trustee, destroy or diminish the vested estates and interests of the remaindermen, over which estates he had no power, none having been given to him by the will? (Losey v. Stanley, 147 N. Y. 567; Matter of Armory Board, 29 Misc. Rep. 181.) The authorities answer the question in the negative. Neither Brooklyn Park Commissioners v. Armstrong (45 N. Y. 239), nor Bennett v. Garlock (79 id. 802), cited by the defendant, holds a contrary doctrine, In both of those cases the facts were very essentially different from those in the case at bar.

Another claim made by the defendant deserves brief consideration. Asserting that the proceedings under the act of 1847 were valid, he contends that their effect was to divest the Hopper heirs of whatever interests they may have had in the Bloomingdale roadbed and to transfer them to the city. I cannot agree with him in this contention. It is not disputed that, under the provisions of the act of 1813, a qualified fee of land taken for streets vests in the city in trust for public use. That act and its amendments provided for public notice to all parties interested, and for awards for damage, and for assessments for benefit, and for compensation to owners for all lands and interests in lands taken for street improvements. It is made the duty of the commissioners “ to proceed to and make a just and equitable estimate and assessment of the loss and damage, if-any, over and above the benefit and advantage, or of the benefit and advantage, if any, over and above the loss and damage, as the case may be, to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands * * * so required,” etc. In cases where, in the opinion of the com*620missioners, the 'benefit and advantage to any owner shall he equal to the loss and damage suffered By him by reason of said improvements “ and the relinquishment of the lands * * * required,” the commissioners are directed to report that, for that reason, the owner will suffer no damage “in consequence of making such * * * improvement and relinquishing the lands.” The commissioners are also required in their report to set forth the names of the respective owners of and {parties interested in the lands and premises ‘‘mentioned in the said report ” so far as the same can be ascertained By them, and also ‘ ‘ an apt and sufficient designation or description of the respective lots or parcels of land * * * and premises ” that may he required for the purpose of opening, extending, enlarging or improving a place, street or avenue,; and it is declared that the report. when confirmed, shall he final and conclusive upon the city and upon all parties interested in the lands and premises “ mentioned in the said report,” and that upon such confirmation the city shall "become and be seized in fee of all the lands and premises “ in the said report mentioned” that shall or may he required for the purpose of the improvement, t All of these provisions are expressly made applicable to any lands or premises belonging to the city or in which the city may be interested. If any portion of such lands is taken, the city is entitled to compensation; and if any portion is benefited by the improvement, the city must pay .for such benefit “in like manner as1 other owners and proprietors of lands and premises required for the purpose of making the said * * * improvement, or deemed to be benefited thereby.” (See R. L. 1813, chap. 86, § 178.)

It is sufficient to say that there is nothing before me to show that the commissioners dealt in any manner with the bed of the Bloomingdale road.' They did not assume to determine to whom it belonged. They made no award for compensation. They gave no reason for their omission to do so. They simply said nothing about it beyond reporting that “ said Bloomingdale road is a street in that part of the said city of New York laid out into streets, avenues, squares and public places by the Commissioners of Streets and Roads ” under the act of April 3, 1807. No claim or suggestion is made that it was a street opened under that act. On the contrary, it is asserted by the learned counsel for the defendant that chapter 223 of the Laws of 1838 was a recognition by legislative act of the fact that, by the filing of the commissioners’ map under the act of 1807 the road had been legally closed or discontinued. Further, the road was not “ mentioned in the said report ” within the meaning of section 178 of the statute of 1813, and would not, therefore, have been within the operation of an order of confirmation if such order had been regularly made. My conclusions on this branch of the case are, that the defendant has failed to sustain the validity of the proceedings under the act of 1847; that the plaintiffs are not estopped to assert the invalidity of the proceedings by the trustee’s acceptance of the award, and that even if the proceedings had been regular and valid, or if the acceptance of the award had been effectual as an estoppel, the only property affected would have been the several parcels particularly described in the report as belonging to the trustee, including the narrow strip taken from the front of the block between- Fifty-second and Fifty-third streets on the easterly side of the Bloomingdale road.

Ann Striker, one of the three grandchildren of John Hopper, Jr., died without *621issue in 1860. Winifred Mott, another of said grandchildren, died leaving issue in 1862. In 1863 Garrit H. Striker, the survivor, began an action in this court for the partition of. the Hopper farm, alleging that he and the defendants were owners in common of twenty-four tracts or parcels of land which were specifically described in his complaint. Parcel No.4 was described as bounded on the north by land of several owners, and on the east by the westerly line of Seventh avenue, and on the south by the northerly line of Fifty-second street, and on the west by the easterly side of Broadway. Parcel Ho. 7 was described as bounded on the north by the southerly line of Fifty-third street and land of Jacob Harsen, and on the east by the westerly line of Broadway, and on the south by the northerly line of Fifty-second street, and on the west by the easterly side of the Eighth avenue. To each of these descriptions was subjoined the following: “Together with all the right, interest, claim and demand whatsoever, present or prospective, vested or contingent, of the owners of such last mentioned tract, piece or parcel of land in the streets and avenues adjoining the same by reason of the beds of such streets and avenues, or any part thereof having been taken pursuant to the statutes in that behalf made and provided, from such owners to form such streets and avenues."

The commissioners appointed to make partition divided the said twenty-four tracts or parcels into city lots, which were designated by numbers upon a map prepared and filed by them. Lots 79, 80, 81 and 82, situated on the easterly side of Broadway between Fifty-second and Fifty-third streets, were allotted to Garrit Striker Mott. Lots 83, 84 and 85, situated on the westerly side .of Broadway between said streets, were allotted to Ruth Ann Mott. In the commissioners’ report lots 79, 80, 81 and 82 are described as follows: “Beginning at a point in the easterly side of Broadway, distant twenty-nine feet and seven inches southwardly from the southerly side of Fifty-third Street, and running thence southwardly along said easterly side of Broadway, ninety-nine feet ten and one-half inches; thence eastwardly, on a line parallel with said Fifty-third Street one hundred and fifteen feet six and one-half inches to the west side'of Seventh Avenue; thence northwardly, along said westerly side of Seventh Avenue, seventy-seven feet and five inches to land óf several owners; and thence northwestwardly, along said lands' of several owners, one hundred and forty-one feet six and seven-eighths inches to said easterly side of Broadway at the place of beginning.’’ The same form of description is applied to lots 83, 84 and 85. It begins at a point on the westerly side of Broadway; the northerly boundary line extends eastwardly to said westerly side of Broadway, and the easterly boundary is the “ said westerly side of Broadway * * * to the place of beginning.” The easterly and westerly sides referred to are the lines of Broadway established by the proceedings under the act of 1847. The final j udgment in the partition action, which confirmed the commissioners’ report, was entered on July 10,1865. In it the descriptions of the lots or parcels allotted in severalty to each of the several owners in common followed in all particulars of lot numbers, courses and distances those set forth in the report, and the question is whether the effect of the judgment was to vest in Garrit Striker Mott and Ruth Ann Mott title to whatever interest the owners in common had in the Bloomingdale road or Broadway in front of the lots allotted to them respec*622tively. The defendant insists that such was its effect. The plaintiffs, on the contrary, contend that the judgment operated only upon the lands and premises specifically described in it; that Garrit Mott and Ruth Mott took no rights or interests in the bed of the street, but were limited in their ownerships in severalty to the sides of Broadway which were their boundary lines; and that the rights and interests of the tenants in common in the bed of the street were not partitioned or otherwise affected by the judgment.

Whether a conveyance of lands adjacent to a street carries title to the center or only to the side or exterior line of the street, depends in part upon the language used in describing the premises conveyed and in part upon the intention of the parties. Ordinarily, where the land is bounded by or upon a street, the grantee takes to the center, the presumption being that the grantor did not intend to reserve the fee of the highway, it being no longer of any importance or benefit to him. (Graham v. Stern, 168 N. Y. 521.) But this presumption may be overcome by evidence that thé parties intended differently. It is also a well-settled general rule that where the premises conveyed are hounded by the side of a street, the grantee’s title- does not extend into the bed of the street, but stops at the exterior line. (Jackson v. Hathaway, 15 Johns. 447; English v. Brennan, 60 N. Y. 609; Kings County Fire Ins. Co. v. Stevens, 87 id. 287: Blackman v. Riley, 188 id. 318; Deering v. Reilly, 167 id. 184.) If, however, it is made to appear that it was intended that the grant should include the fee of the street, effect will be given to that intention. (Potter v. Boyce, 73 App. Div. 388.) In that case the court said: “Of course, if the property is conveyed by metes and bounds which expressly exclude the street, as where a piece of property is expressly bounded upon the side of a street, so that by no Construction can the fee of the street be included, the court is not justified in giving to such description a construction which would convey property outside of the limits of the property expressly conveyed.” And further: “ If the starting point in the description in this case had been on the easterly side of Bloomingdaleroad and the north side of Hamilton Street, and the line had run thence to the west side of Phdneas Street, a different question would' be presented.” There is nothing in the present case tending in any degree to show that the commissioners in partition intended to allot to Garrit Mott and 'Ruth Mott any interest in -any premises outside of the premises described with particularity in their report. The boundary lines of those premises necessarily excluded any interest in the fee of the street. In the one case they start at a point in the easterly side of Broadway and run thence southwardly along said easterly side, etc., and return “to said easterly side of Broadway at the -place of beginning.” In the other case they start at a point in-the westerly side of Broadway and run thénce westwardly and northwaiidly and eastwardly “ to said westerly side' of Broadway, and thence southwardly, along said westerly side of Broadway * * * to the place of beginning.”

It is argued that the purpose of the action brought by Garrit H. Striker was to partition all property held in common by the parties, including all their interests in the streets bounding the different parcels described in the complaint, and that it must be presumed that the commissioners, in making their allotments, intended to effectuate that purpose, and so intended that the lots fronting on the *623streets should carry with them the street rights whatever they might be. It seems to be an answer to this suggestion that if the commissioners did so intend, they defeated their intention by the language which they employed in the descriptions, and that the rights of all parties were fixed and settled by the judgment of the court, whether it granted all or only a part of the relief claimed in the complaint. In Bartow v. Draper (5 Duer, 130) the question arose whether the description of a lot set apart by commissioners in partition carried title to the center of Cross street. The court held that it did not, and that if the heirs collectively had a right to the street it remained"a part “of the undivided estate of their ancestor.” Asimilar question was involved in Van Amringe v. Barnett (8 Bosw. 357). A suit was brought to partition among the heirs of Youle a tract of land of which Youle had died seized. It was held that the master’s deed conveying a parcel, one boundary of which ran to the “southeasterly side” of the Kiugsbridge road, and thence “along the said southeasterly side,” granted no interest in the bed of the road, the title to which remained in the heirs of Youle. In Jones v. Cowman (2 Sandf. 234) mortgaged premises, which included one-hal£ of a lane twenty feet in width, were sold under a decree in foreclosure. The master’s deed described the premises conveyed as bounded by “the northerly line or side ” of the lane. It was held that the purchaser took according to the description and nothing more, and that he acquired no title to the lane or any part thereof. In each of these cases the court followed the established rule that .“nothing passes by a deed except what is described in it, whatever the intention of the parties may have been.’’ (Coleman v. Manhattan Beach Imp. Co., 94 N. Y. 232; Thayer v. Finton, 108 id. 397.) The fact that in the report of the commissioners in partition the lots set apart in severalty to Garrit Mott and Ruth Mott were identified or described as “ designated on said map,” that is, the map filed by the commissioners, by certain numbers, does not in any respect aflect the rule of construction declared in the cases above cited. In no case to which my attention has been called has a reference in the deed to a map, or a description by a map number, been held to override a description by metes and bounds, where the boundary line was to and thence along the side of a street or highway. The authorities are the other way. (Chapman v. Wheeler, 5 Alb. L. J. [1872] 336, 337; Augustine v. Britt, 15 Hun, 395; affd., 80 N. Y. 647; White's Bank of Buffalo v. Nichols, 64 id. 65.)

On the 14th of March, 1865, Garrit S. Mott conveyed to Dudley Field the four lots designated on the map of the commissioners in partition as lots Nos. 79, 80, 81 and 82, the boundaries following those in the commissioners’ report, and starting at a point in the easterly side of Broadway and running thence southwardly, along the easterly side of Broadway, 104 feet, and thence eastwardly to the westerly side of Seventh avenue, and thence northwardly, along the said westerly side of Seventh avenue, to a point, and thence westwardly to the “said easterly side of Broadway at the place of beginning.” On the same day Ruth Ann Mott conveyed to Mr. Field the three lots designated on the said map as lots Nos. 83, 84 and 85, the boundaries being the same as those in the report, and starting at a point in the westerly side of Broadway, and running thence westwardly and northwardly and eastwardly to the westerly.side of Broadway, “and thence south*624wardly, along said westerly side * * * to the place of beginning.” The land which is the subject of this dispute was, at the time of these conveyances, a part of the. bed of Broadway between the lots so conveyed to Field. As to the easterly, portion of said land the defendant claims under a deed from Field, and as to the westerly portion he claims through Field under deeds from his grantees or their successors, and also, as to both portions, through proceedings taken for the widening and straightening of Broadway by authority of an act of the Legislature passed in May, 1869, to which ^particular reference will presently be made. So . that the question is — What rights,! if any, in the roadbed did Field acquire from Garrit and Ruth Mott ? This is conclusively answered by the authorities cited above. There is nothing ambiguous in the description in either deed. The boundary lines are defined with great precision ; all of the lots conveyed are ■ expressly bounded upon the side of Broadway; therefore, as was; said in Potter v. Boyce (supra), “by no construction can the fee of the street be included.” This would be so if for any reason it should be held that under the decree in partition the Motts took to the center of the street. In Blackman v. Riley (138 N. Y. 318) one of the lots conveyed was.described as beginning “at a point on the east side of the Bloomingdale road,” and as running along the said east side, etc. In answer to the claim made by the defendant that it was clearly the intention of'the grantors to convey to the grantees all their interest in the bed of the road, the court said (p. 334): “It is. difficult to conceive of any reason for consciously reserving or failing to convey the roadbed of this road, subject to the public easement. We cannot think it was ever really intended, yet, nevertheless, we are disposed to hold that, by the language actually used, the grantors in fact failed to convey any portion of the; land forming the bed of the road in question.” The defendant makes a further claim. In 1869 an act was passed (Chap. 890) entitled “ Ah Act to alter the,map or plan of the city of New York and to 'carry the alterations into effect.” This act pro video for the widening and straightening of Broadway between Thirty-fourth and Fifty-ninth streets under the direction of the Commissioners of the Central Park, who were to locate and establish the easterly and westerly lines thereof so that the street should be 100 feet in width. It further provided that the part of Broadway .laid out and established by the said commissioners should be a part of one of the streets of the city of New York, in like manner and with the same effect as if the same had been laid out as a public street on the map or plan of the city by the commissioners- appointed under the act of April 3, 1807; that if any part or parts of that part of. Broadway as then existing should not be included within the lines of said street as located and established under the provisions of said act of 1869, “ such part or parts shall be closed and the public use thereof shall be discontinued, and the map or plan of said city shall be changed accordingly; ” that commissioners of estimate and assess-. ment should he appointed, with power to assess one-third of the expense of the improvement upon the city; that/" if any part or parts of Broadway shall be closed under the provisions of this act, any ownernf land now fronting on Broadway, abutting on any part so closed, may acquire an exclusive right, title and •interest of, in and to so much of any part so closed as lies between the present • front line of the land owned by him and the line of Broadway as it may be so as *625.-aforesaid located and established ” upon payment to the chamberlain of the city, for the mayor, aldermen, etc., of the amount of any award by said commissioners ■ of estimate and assessment “for the discontinuance of the public use of the land ;:such owner is so entitled to acquire,” and also upon payment to the said chamberlain, for the parties entitled thereto, of the amount of any award by the said -commissioners "for the reversionary interest in such lands or any part thereof; ” that no award should be made for the reversionary interest in case the parties having such interest should be entitled to acquire the land; and that all awards -other than those made to the city should he paid by the chamberlain to the parties entitled thereto — provided, however, that the public use of any “piece of land, for which an award is made for the reversionary interest, shall not be discontinued, nor shall that part of the street be held to be closed, until the party entitled to the award for the reversionary interest shall, by accepting such award, .release his interest in the land for which .the award is made.”

The Commissioners of the Central Park laid out the part of Broadway referred :to in the 1st section of the said act of 1869, and located and established the easterly and westerly lines thereof, as they were commanded by said section, Between Fifty-second and Fifty-third streets the easterly line as located by them ran northerly from the point of intersection of the westerly side of Broadway with the northerly side of Fifty-second street to a point in the southerly side of Fifty-third street distant twenty-nine feet nine and five-eighths inches easterly from the point of intersection of the southerly side of Fifty-third street with the westerly side of Broadway. The westerly line was parallel thereto and distant •one hundred feet six and seven-eighths inches therefrom. The discontinued portion of old Broadway lying between the easterly line of new Broadway as so located and the front line of said lots 79, 80 and 81 owned by Mr. Eno had a frontage on the new street of seventy-five feet five and one-tenths inches and a ■depth on its northerly side of fifty-five feet one and one-fifth inches and on its southerly side of sixty-six feet two and seven-tenths inches. This is the parcel «over which these parties are contending. It was represented on the benefit map filed by the commissioners by lots 32, 33 and 34, as to each of which the commis■sioners reported that they had made an award to the mayor, aldermen and commonalty of the city of New York amounting to the sum of one dollar “for the dis- • continuance of the public use ” thereof; and that it was “ a part of that portion of Broadway closed under the provisions of the Act under which these proceedings -are taken;” and that “ the owner of the land lyingon the northeasterly side of said Broadway, and now immediately fronting and abutting on the said hereinbefore mentioned and described piece or parcel of land, is the owner of the reversionary right and entitled to acquire the said piece or parcel of land." Concerning the narrow wedge-shaped piece of land, a part of the bed of old Broadway and lying between the westerly side of old Broadway and the easterly side of the new ■■street, the commissioners reported that, as far as they could ascertain, the mayor, aldermen and commonalty were seized thereof in fee, and that the loss and damage to them as owners, in consequence of the taking of said parcel of land for •the purposes -of the improvement, was the sum of one dollar. Eno was assessed .for benefit over damage on the said lots 79, 80 and 81 the sum of §9,807. This *626sum he paid .to the collector oí assessments on the 11th oí April, 1873, and on the 39th of January, .1873, he paid to the chamberlain the awards of one dollar ; each made to the city for the “discontinuance of the public use” of said lots on. the commissioners’ benefit map Eos. 33, 33 and 34.

At the time the proceedings under the? act of 1869 were taken, lots 83 and 84 . on the westerly side of Broadway, which had been conveyed , to Field by Ruth. Ann Mott in 1865, were owned by Peck and Godwin. In the commissioners” report they were described as bounded on‘the Westerly side or line of Broadway. The roadbed in front of them was reported by the commissioners as belonging-to the city. The parcel of ground in dispute here, being lots 33, 33 and 34 on the-' . benefit map, extended across the center line to-within a few feet of the westerly line of old Broadway, by which is -meant Broadway as it was laid out and regulated under the act of- 1847.' In February, 1885, Godwin and the executors of Peck quitclaimed to Mr. Eno “ all the land1, formerly a part of old Broadway (except so much thereof as is now actually a part of the present Broadway)' -lying in front of said lots, Ward Eos. 41 and 43 (as said lots, were on and prior-to thefifth of July, eighteen hundred and seventy-two), which said Joseph H. Godwin and George H. Pe'ck as owners of the Said lots, or by said recited deeds, or by any other claim or title whatsoever, have or claim to have.’’ This description would seem to apply to that portion of old Broadway lying between the; center line thereof and the easterly line ’of Broadway as widened and located under the act of 1869 in front of the said lots 83 and 84 on the Mott partition: map. So far as appears, Peck and Godwin at the date of said deed had no rights.Whatever in any part of the bed of Broadway.

Briefly stated, the claim of the defendant is, that the act of 1869 laid upon the: commissioners of estimate and assessment the duty of determining “ who was-the- owner of the reversionary interest in each part, of the former bed -of the-Bloomingdale road which was not to be included in the'new street;” that their determination, when confirmed by the ' court, was final; that the confirmation was in effect a judgment pronounced in a proceeding to which the city and the-' ■plaintiffs and the defendant were parties; that the plaintiffs are concluded by it, and that whatever rights they may hayte had in the disputed territory have, by •operation of the statute and the proceedings under it, become vested in the-defendant. On the other hand, the plaintiffs insist that the act of 1869 was-unconstitutional in that it provided for the taking of private property for other than public use (referring to the provision' relating to the acquisition of a-“reversionary interest ”-by an abutting owner), and that the proceedings taken under -the act were invalid' because the commissioners made no award to the plaintiffs for the reversionary interests, and because of various irregularities and -omissions in respect to the appointment of the commissioners and the giving of notices required by statute. It is not necessary to consider in detail the points made by counsel, for the claim asserted'on the part of the defendant seems to be-in direct opposition to the decision of; the General Term in Post v. Hazlett (36 N. Y. St. Repr. 219). It was there held that the commissioners of estimate and assessment appointed under section 3 Of the act of 1869 had no power to deter mine who was .the owner of the reversionary interest .in the roadbed. It is évi*627dent from the report of that case that the description in the deed to Livermore ran only to and then along the side of Fifty-third street, and the court said that the commissioners erred in assuming that Livermore was entitled to the reversionary right to the bed of the road because he was an abutting owner. I am obliged to find that the defendant acquired no title to any portion of the roadbed of old Broadway through the proceedings taken in execution of the act of 1869.

Finally, the defendant claims title by adverse possession. The argument is that the city entered into possession of the premises under the proceedings taken in 1847 for the laying out of a new street and for keeping open a part of the Bloomingdale road, claiming that it had acquired a fee in the roadbed; that its possession continued without interruption for a period of twenty years and until 1874, when the defendant entered; and that, by the payment of the awards made to the city for the discontinuance of the public use of the lands lying between the front of the lands owned by the defendant and the easterly line of Broadway as located and established under the act of 1869, the defendant succeeded to all the rights'and title of the city in and to such lands. This action was commenced in April, 1893, and it is admitted that unless the city held adversely this defense must fail. My judgment is that as to the larger part of the premises the city did not hold adversely. It had no title to the roadbed of Broadway as it existed when the act of 1847 was passed. Its possession was “in subordination to the legal title ” (Deering v. Reilly, 167 N. Y. 192), which I have concluded was in the Hopper heirs. For reasons already stated, it acquired no title to the roadbed by what was done to carry the act into effect. The commissioners of estimate and assessment dealt only with the parcels of land included in the boundaries defined in the act and lying outside of the then exterior lines of the Bloomingdale road. (Speir v. Town of New Utrecht, 121 N. Y. 430.) Therefore, the quality and extent of its possession thereafter remained unchanged. As to the narrow strip taken by the commissioners from the front of the block on the easterly side of Broadway between Fifty-second and Fifty-third streets, I think that the plaintiffs’ title has been divested by the adverse possession, for upwards of forty years, of the city and the defendant. The city took possession in 1849, claiming title through the proceedings of 1847. Its right to enter and to occupy was not disputed until the commencement of this action. The fact that the proceedings were invalid does not help the plaintiffs. In Eldridge v. City of Binghamton (120 N. Y. 309) it was held that where the State had entered upon lands under color of title, claiming to own the fee pursuant to a statute, it acquired an absolute title by ah undisturbed adverse possession for more than twenty years, even though the statute under which it claimed was unconstitutional.

The plaintiffs must have judgment. My opinion as to the extent of their recovery is pretty clearly indicated by what I have written, but counsel for the defendant desired to be heard further upon that point in case my conclusions were in favor of the plaintiffs, and his request is granted.

Sic.

See p. 583, ante. — [Rep.