
    Jeruchim H. Simpson, Appellant, v. Harry Berkowitz, Respondent.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Eminent domain — Condemnation proceedings — Power to discontinue — Discontinuance of street-opening proceedings.
    Municipal corporations — Mode of corporate action and representation by officers and agents — Method of procedure by municipal boards — Amending previous resolutions.
    Proceedings taken by public officers for • the condemnation of lands for public use may be abandoned at any time before the confirmation of the report of commissioners of appraisal.
    The property owners acquire no vested rights in the condemnation proceedings until the report of the commissioners of appraisal is finally confirmed.
    The adoption of a resolution- by the board of assessment and apportionment of the city of New York, pursuant to section 1439 of the Greater New York charter, that on a 'day specified title to property is to vest in the city, vests no lights in the owner of the property so as to preclude the adoption of another resolution postponing the vesting of title until a future day.
    Every deliberative body has inherent power to amend a resolution adopted by it.
    The provision of section 226 of the Greater New York charter that “ No resolution or amendment of any resolution shall be passed at the same meeting at which it is originally presented unless twelve votes shall be cast for its adoption ” expressly recognizes the power of the board of estimate and apportionment to amend a resolution adopted by it; and, by reasonable implication, an amendment to a resolution may be passed at a meeting subsequent to that at which the resolution was passed.
    Appeal by the landlord from a final order, rendered in favor of the tenant in summary proceedings in the Municipal Court of the city of New York, tenth district, borough of Manhattan.
    Edward H. Hawke, Jr. (Frank O’Connor, of counsel), for .appellant.
    Jacob Manheim (Harry A. Gordon, of counsel), for respondent.
   Greenbaum:, J.

The facts in this matter are undisputed. The landlord leased premises known as No. 23 Forsyth street to the tenant for a term of two years, commencing May 1, 1907. The lease, among other things, provided: “8th. It is made a condition of the lease that, in case said premises shall be condemned in whole or in part by any court, body or official, for any public or quusi-public use or purpose, then this lease shall come to an end and be henceforth void, upon the city taking title to said premises.” •- -

In November, 1907, summary proceedings to dispossess the tenant were instituted by the landlord for nonpayment of rent for the month of November, 1907.

The tenant resisted dispossession upon the ground that, on October 8, 1907, the city of New York became vested with title to the premises.

The learned justice below gave judgment in favor of the tenant.

It appears that, on June 21, 1907, the board of estimate and apportionment of the city of New York, by virtue of proceedings looking to the condemnation of certain lands for the purposes of an approach for the Manhattan bridge, adopted a resolution that, “ upon the 8th day of October, 1907, the title to each and every parcel of land lying within the limits hereinbefore described, etc., shall be vested in the City of New York.” The premises in question are embraced within the lands referred to in the resolution.

At a subsequently regularly called meeting, held on the 4th day of October, 1907, four days before the date fixed in the previous resolution for vesting title, the same board duly resolved to amend its resolution of June 21,1907, so ¡that title to said lands, including the lands under consideration, shall be vested in the city of New York, on May 2, 1908.- .

The Greater New York charter provides two methods in condemnation proceedings for vesting title in the city, the one upon the confirmation of the report of the commissioners of appraisal, pursuant to section 1438a, and the other on a day fixed or specified by resolution of the board of estimate and apportionment, upon a three-fourths vote, under section 1439.

Incidentally it may be observed that the latter section also provides that “ all leases and other contracts in regard to said lands so taken, or any part thereof, and all covenants, contracts or engagements between landowners and tenants or any other contracting parties shall, upon the vesting of said title, respectively cease and determine and be discharged according to law.”

Both under the agreement between the parties and the statute, their relation of landlord and tenant would terminate the moment title vested in the city.

It is well settled in this State that proceedings by public officers for the condemnation of lands may be abandoned at any time before the confirmation of the report of the commissioners of appraisal. Matter of Rhinebeck & Oonn. R. R. Co., 67 H. Y. 242-245.

The same ease also recognizes the rule that the property owners acquire no vested rights in the proceeding until the report of the commissioners is finally confirmed.

It seems to be reasonably clear,, by analogy of reasoning, that no rights are vested in property owners by the mere adoption of a resolution on the part of the board of estimate and apportionment, pursuant to section 1439 of the charter, that on a day specified title to their premises is to vest in the city of Hew York.

The learned counsel for respondent argues that the commencement of proceedings to acquire private lands for public uses, coupled with a notice that on a fixed day the owner will be divested of title to his property, has the effect of imposing loss and unwarranted hardships upon property owners, if the public authorities subsequently may pass another resolution postponing vesting of title to a future day. The argument would he equally potent upon the question of the right to discontinue proceedings after they had been progressed to a considerable length, and yet the right to abandon them is recognized.

The only question remaining is the general power of the . board to amend its previous resolution.

The power is inherent in every deliberative body to amend a resolution,..previously adopted by it. Section 226 of the Greater Yew York charter, which treats of the constitution of the hoard of estimate and apportionment and its duties, expressly recognizes the power of the board to amend a resolution by the following provision: “ Yo resolution or amendment of any resolution shall be passed at the same meeting at which it is originally presented unless twelve votes shall be east for its adoption.”

By reasonable implication, an amendment to a resolution may be passed at a meeting subsequent to that when the resolution was passed.

Between the city of Yew York and the plaintiff there is room for little doubt but that title to his premises did not vest in the city on October 8, 1907; and it follows that, at the commencement of this proceeding, the relation of landlord and tenant subsisted between the parties and, upon the conceded facts, the plaintiff was entitled to a warrant of dispossession.

The determination of the justice must be reversed and possession of the premises awarded to the appell-ant, with costs.

Gildersleeve and Giegerich, JJ. concur.

Determination reversed and possession of premises awarded to appellant, with costs.  