
    Julia Rhinelander Dodge et al., App’lts, v. Mary L. Gallatin et al., Resp’ts
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Title—To lands—Construction or grant.
    The plaintiffs claim to recover the premises in question as heirs at law of one R; they base their demand upon the allegation that the property was acquired byR., after the execution of his will. The will was executed in February, 1807; the deed of the property to R. was made in November, 1807, and among other things confirmed to R., “in his actual possession now being,” the lands in question. In 1797 R.'s father applied to the city of New York for a grant of the lands which were thefi under water; his request was acceded to but no written grant was at that time delivered. He improved the property under the city grant of 1197 and the legislative grant of 1798. Subsequent to his death, R., being in possession as heir, renewed the application made by his father and a deed was given him. Held, that the defendant's testator had at the time he made his will, title to the lands, and that he did not die intestate in respect to them.
    Appeal from a judgment entered upon the report of a referee, dismissing the plaintiffs’ complaint upon the merits. The action was brought to recover from the defendants the possession of the lands known as numbers 339 and 330 West street, between Beach street and North Moore street in the ■city of New York.
    
      William G. Bussey and Edward Stevens, for app’lts; Henry H. Anderson, for resp’ts.
   Macomber, J.

—The plaintiffs claim to recover the possession of the property in question, as the heirs at law of William Rhinelander, Jr., who died in the city of New York in the year 1809.

The defendants claim the right to withhold the possession of this property by virtue of the last will and testament of the same William Rhinelander, Jr., which was executed on the third day of February, 1807. The foundation of the legal demand made by the plaintiffs is the allegation and ■contention that the property in question was acquired by William Rhinelander, Jr., after the execution and publishing of his will, and hence it passed to his heirs at law and not tof his devisees.

Though the will did in precise terms attempt to devise not only the lands which the testator then owned and possessed, but all which he should thereafter acquire, yet the property embraced in this action being acquired subsequently, would be divided among the heirs-at-law under the laws as they stood prior to the revision of the statutes in the year 1830. Lynes v. Townsend, 33 N. Y., 561. The deed from the city of New York to William Rhinelander, •Jr., was executed on the 16th day of November in the year 1807. If this deed was the beginning of the title or right of possession in William Rhinelander, Jr., the contention in behalf of the plaintiffs would, in the absence of other defenses, undoubtedly prevail.

The principal question therefore is, had the defendants’ * testator, at the time that he made the will (February 3, 1807) any title or right of possession to the lands in ■question?

It is to be observed that in the deed from the city of New York to William Rhinelander, Jr., it, among other things, confirms unto the said party of the second part, in his •actual possession now being, and to his heirs and assigns the lands in question. This was a clear admission on the part of the city of New York, that William Rhinelander, Jr., had been in possession of the premises for some length of time prior to the execution of this deed. Did he have, at the time the will was made, an equitable estate m the-premises? If he had, such estate whatever it was, passed by the terms of his will and has been acquired by the defendants.

In May, 1797, Frederick Rhinelander, the father of William Rhinelander, Jr., was an abutting owner of the-premises in suit; being such, he applied to the corporation of the city of New York for a grant of these lands which were under water. His petition was referred to.the street committee of the common council; they reported May 29, 1797, that the grant ought to be made and the common council directed it to be made. The clerk of the board,, however, for some reason or other, neglected to deliver the written^grant. In 1798, the legislature, on petition of the-city, passed a statute, granting riparian owners the fee simple of lands to be filled in by them. Frederick Rhine-lander went on and improved the property under the terms, of the city grant of 1797, and the legislative grant of 1798, and at great expense filled in the land from high watermark east of Washington street to West street.

In the year 1805, while in the actual possession of the premises and exercising ownership and control over them, he died intestate. His widow released her dower to the-son, William Rhinelander, Jr., and to her daughter, Maria, and subsequently conveyed to the son, William Rhinelander, Jr., all her interest, legal and equitable, in the property of her father.

Hence, it will be seen that William Rhinelander, Jr., had come into possession of this property in the year 1805. He was knowing to the previous application of his father, as. riparian owner, to the use of these lands under water.. He renewed the application to the common council early in the year 1807, setting forth in his petition the well established facts of his father’s previous application and the-resolution of the common council acceding to his prayer, and asking that the grant should be delivered to him as the sole riparian owner. This was accordingly done, on the-16th day of November, 1808, by the deed above mentioned.

As the referee has properly found, both under the Dongan charter of 1686, and the Montgomerie charter of 1730, the fee of the land under water abutting the upland, for a. distance of four hundred feet beyond low water mark of the Hudson river, was vested in the mayor, aldermen and commonalty of the city of New York, and that, the corporation of New York uniformly made grants of the land under water owned by it to the riparian owners abutting- such lands under water.

The resolution of the common council in the year 1797, above mentioned, granting to Frederick Bhinelander the land under water mentioned in. his application, was sufficient to give him an equitable estate in the lands, if fol. lowed by an acceptance of the same, and an expenditure of moneys by him, acting upon the faith thereof and relying thereon.

" That the city agreed to make the grant and proposed to charge for that part of it lying between high and low water marks, the sum of £400, New York money, or $1,000, its equivalent, and that the part beyond low water mark was to be given on reservation of the usual quick rents, is abundantly established by the evidence in the case.

It follows, that the claim of the plaintiffs that William Bhinelander, Jr., died intestate as to these premises, is untenable, and the referee was correct in dismissing their complaint.

The judgment should be affirmed, with costs.

Van Brunt, Ch. J., and Brady, J., concur.  