
    Dodge et al. v. Gallatin et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Wills—What Peopeety Passes—New York City Water IjOts.
    In 1797, R., being an abutting owner of land under water in the city of New York, applied to the corporation for a grant. The common council directed that the grant ■be made, but by neglect of the clerk it was not done. In 1798 the legislature, on petition of the city, granted to riparian owners the fee of lands to be filled in by ■them. R. took possession and improved the lands under the terms of these grants, and in 1805 died intestate, while in the actual possession thereof, exercising ownership and control. The lands descended to his son, who took possession, and in 1807 renewed the application to the city for a grant, setting forth the facts as to his father’s title, and the petition was granted, and a deed executed, confirming to him the lands “in his actual possession now being. ” Held, that the grant of 1797, followed by acceptance and improvements of the lands in good faith, was sufficient to vest.in R. an equitable estate in the lands,- and that they passed by the son’s will, executed prior to the deed of 1807.
    Appeal from a judgment entered upon the report of a referee dismissing the plaintiffs’ complaint upon the merits. The action was brought by Julia Rhinelander Dodge and others to recover from the defendants, Mary L. Gallatin and others, the possession of the lands known as “Nos. 229 and 230 West Street, ” between Beach street and North Moore street, in the city of New York.
    Argued before Van Brunt, P. J., and Brady and Macomber, JJ.
    
      William (7. Bussey and Edward Stevens, for appellants. Anderson & How- ■ land, (Henry H. Anderson, of counsel,) for respondents.
   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 3d •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 to 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 Rhine-lander, 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 Rhine-lander, 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^rom the city of NeVv 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 in 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-water mark 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, who 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 had knowledge of the previous application of his father, as riparian owner, for 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 Dougan charter of 1686 and ■the Montgomerie charter of 1730, the fee of the land under water abutting the upland, for a distance of 400 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 the city of New York uniformly made grants of the land under water, owned by it, to the riparian owners abutting such land under water. The resolution of the common council in the year 1797, above mentioned, granting to Frederick Rhinelander the land underwater mentioned in his application, was sufficient to give him an equitable estate in the lands, if followed 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 6400, 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 quit rents, is abundantly estab-, lished by the evidence in the case. It follows, therefore, that the claim of the plaintiffs that William Rhinelander, 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. All concur.  