Underwood v. Stuyvesant

Platt, J.

delivered the opinion of the Court. Front the best consideration which I have been able to give to this case, 1 incline to the opinion, that the plaintiff has no right of action. The original survey and map show that Petrus Stuyvesant formed a plan for laying out streets over his land, in 1796; but we must intend that every person knew, that those streets could not be established, as public streets of the city, unless they were sanctioned by the corporation, or other public agents having such powers. The plan was considered as a proposition which the corporation would undoubtedly adopt and sanction, as the city gradually extended. There is no pretence of any fraud or deception on the part of the defendant or his father. It must have been well understood by the parties to those leases, that the ground marked for the proposed streets was to be given and appropriated for that purpose, provided, the streets were sanctioned and adopted by public authority. The implied contract, on the part of Mr. Stuyvesant, was substantially this : I engage to give the ground for the streets, according to the map, upan condition that the corporation shall ratify it.

By the map of the city, made by Goerck and Mangin, city surveyors, in jYovember, 1803, the streets planned by Mr. Stuyvesant, are all laid down; but with an explanatory note, stating that none of those streets had been approved and opened by the corporation, and “ they are, therefore, to be considered subject to such future arrangements as the corporation may deem best calculated to promote the health, introduce regularity, and conduce to the convenience of the city.”

The parties mutually contracted with a reference to the contingency, whether the government would, or would pot sanction the streets proposed by the proprietor. Suppose, then, that the corporation had expressly rejected the plan of Mr. Stuyvesant, and had laid out streets over the same ground, on an entirely different plan; would the lessee have a right to insist on the fulfilment of the conditional agreement on the part of the lessor ? I think not. The expected contingency would, in that case, have failed, without any fault or delinquency on the part of Mr. Stuyvesant. The casus foederis would not have occurred ; and the parties would have been mutually absolved from their contract in relation to the streets. Perhaps, a court of equity would have cancelled or modified the lease, on the ground that the consideration and inducement had substantially failed. But, allowing the lease to stand, the parties would be left to make an equitable adjustment, in lieu of the contemplated streets; and, I think, all that could be required of the lessor would be, that he allow a reasonable ingress and egress to and from the demised premises to some convenient highway. The grantor would have been under no more legal obligation to keep open the contemplated streets, than the grantee would be, to level and pave the street. Both those covenants would be defeated, by the failure of the contingency.

Now, it appears, that by the act of the third of April, 1807, the corporation of New-York were superseded, in regard to their power over these streets, and three commissioners were substituted, with more plenary authority. By the fourth section of that act, the commissioners have “ exclusive power” over the subject j and it is enacted, that “ no square or plot of ground, made by the intersection of any streets to be laid out by the said commissioners, shall ever, after the streets around the same shall be opened, be or remain divided by any public or open lane, alley, street, or thoroughfare.” By the map annexed to the case, it will be seen, that (in 1811) the commissioners, disregarding the plan contemplated by these parties, laid out and established avenues and streets over the lands of Petersfeld, in a manner entirely different from, and inconsistent with, the streets originally proposed by Mr. Sluyvesant, No authority short of the legislature can now alter or defeat the plan established by the commissioners; and permanence is strongly inscribed on what they have done. Indeed, the plan of the commissioners is, in a measure, already executed over these grounds, by the opening of the third avenue.

It seems to me, therefore, that the defendant, in 1815, not only had a right to fence up Peter-street, as he did ; but that it was his duty to conform to the new regulation imposed q,y the government. The streets must not only be opened according to the new plan of the commissioners, but the ^aw *s express, that no public street, lane, alley, or thoroughfare, shall be permitted to intersect the squares or plots formed by the intersection of the streets laid out by the commissioners. Peter-street does intersect several of the squares laid out by the commissioners. It is true, that the streets and avenues, so established by the commissioners, are not to be opened, until the corporation of New-York shall direct; but we know they are proceeding very rapidly in those improvements ; and it seems to me, that it would be vexatious and unjust, to compel the defendant to keep open the streets as originally contemplated by his ancestor, since it is ascertained, that his plan is defeated, and cannot be carried into effect.

The defendant has left a reasonable and convenient outlet, or private way, from the leased premises to the Bowery-road, which, in my judgment, is all that can be lawfully required of him, under the circumstances of this case.

We are, therefore, of opinion, that a new trial ought to he granted, with costs to abide the event.

New trial granted.