[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 15 The premises in dispute were not taken by the city of Brooklyn in the exercise of the right of eminent domain nor for any public purpose, but are claimed to have been acquired pursuant to the third section of the act of April 30, 1833 (Laws of 1833, ch. 319), which authorizes the city, under certain circumstances, to take the residue of any lot of which a portion may be required for the opening of a street, and to sell and dispose of such residue. The act does not assume to authorize the city to take such residue by proceedings in invitum, but only by and with the consent in writing of the owner or owners. Such consent, when given, operates as a voluntary alienation by the owner, and obviates the objection which might otherwise be urged against the power of the legislature to authorize private property to be taken for any but public purposes.
At the time of taking of these premises, the owners (under whom the defendant holds) were infants, and therefore incapable of giving the requisite consent.
The plaintiff relies upon a written consent, signed by the mother of the infants and by John Hess, styling himself their general guardian, to which instrument Augustus H. Sidell, who was appointed guardian ad litem for the infants in the proceeding, is subscribing witness.
There is no provision in the act of 1833, or in any other act to which we have been referred, authorizing either the general guardian or guardian ad litem of infants to consent in their behalf to the taking of their lands. The act of 1833 provides no means of divesting the title of infants to lands not required for the improvements. It does not purport to be compulsory upon any one in respect to such lands, but simply empowers the commissioners with the written consent of the owner to include such lands in their estimate, and award compensation therefor. When there is no owner capable of consenting, the condition of the act cannot be complied *Page 17 with, and if the owners are infants, the only mode of transferring their title to the city is by proceedings pursuant to the Revised Statutes for the sale of infants' estates.
The order of the General Term should be affirmed, and judgment absolute rendered against the plaintiff, with costs.
All concur.
Order affirmed, and judgment accordingly.