
    WARWICK a. THE MAYOR, &c., OF NEW YORK.
    
      Supreme Court, First District;
    
    
      General Term, October, 1858.
    Pre-emptive Right.—Pleading.'—Parties.
    Under the statute of 1837, establishing the Thirteenth Avenue in the city of New York, and vesting the mayor, &c., of the city with all the right and title of the people of the State to certain lands under water, extending from the westerly side of land under water formerly granted to the mayor, &c., the 4th section of which statute provided that the proprietors of all grants of land under water theretofore made by the mayor, <&c., should have a pre-emptive right in all grants to be made by the mayor, <&c., of lands under water granted by the act, adjacent to and in front of the lands so theretofore granted ;—the pre-emptive right is not a personal independent right of the grantee of previously granted adjacent premises, capable of separate independent conveyance, nor strictly an incident of the premises, but an incident of the plaintiff’s estate in the previously granted premises, and such as to pass from him by a foreclosure of his mortgage upon those premises and a sale thereunder.
    
      It seems, that a complaint asking in the alternative, judgment for either one of two parties plaintiff, is bad on demurrer.
    Demurrer to complaint.
    The facts are stated in the opinion.
    
      S. A. Foot, for the plaintiffs.
    
      A. K. Lawrence, Jr., for the defendants.
   By the Court.—Sutherland, J.

—The complaint in this action appears to be a sort of fishing complaint. The plaintiff spreads a broad net. If he cannot get any thing for his own individual benefit, he then goes for the, benefit of all the tax-payers of the city of Hew York.

He claims that, as the proprietor in 1837 of a certain lot of land bounded on West-street, in the city of Hew York, he is entitled to a grant in fee from the corporation of the city of Hew York of certain lands under water adjoining said lot, and prays that such a grant to him, individually, be directed to be made; but if he is not entitled to such grant, he then asks, as a taxpayer, for himself and all other tax-payers of the city, that a grant of said land under water, which had been made by the corporation to one Bobert A. Durfee in 1852, and all subsequent grants under the same, be declared void, making James S. Thayer and Miner C. Story, the present claimants and parties in interest under the grant to Durfee, parties defendants.

Now the defendants demur to this see-saw, swinging complaint, which leaves the end finally to settle uppermost to depend upon the end the judicial foot is put upon, on the ground (among others) that it contains two causes of action which are improperly united.

Whether, according to a critical analysis of Code definitions, there are two distinct causes of action or not, I should have held, as an original question, that the wrongs complained of were different, and the remedies asked for different and inconsistent, to be complained of, and to be asked for in the same action ; for the plaintiff’s individual rights as a proprietor, stated in his complaint, are inconsistent with the rights of the tax-payers as therein stated ; and, if the plaintiff is entitled to the grant from the corporation, then there is no need of declaring the grant to Durfee void,- and the tax-payers have not been injured or defrauded by that grant.

The plaintiff does not pretend, in his complaint, that there is more than one cause of action ; he does not pretend that there has been more than one wrong, or that there is more than one remedy needed, but he is in doubt whether he alone has been wronged, or all the tax-payers of Kew York: he goes in for himself individually first, and, if he should fail, then, in a spirit of enlarged benevolence, for the tax-payers generally.

The relief asked for the tax-payers, and the relief asked for himself, relate to.the same subject-matter: only one is required, and only one can be granted. Which, is the- question for the court ?

The theory of the complaint is not, therefore, that there are two causes of action.

But can the plaintiff, in the same complaint, thus first present his own individual wrongs for judicial relief, and then the wrongs of the public, although relating to the same subject-matter ; especially when, if the plaintiff is right in his view of his own rights and wrongs, the public have no rights, and have suffered no wrong whatever ?

I think not. I think the Code does not authorize this kaleidoscope sort of pleading, alternating for the judgment of the court, presenting different phases of the same act or acts, or of different acts relating to the same subject-matter, and presenting different wrongs, as these acts affect different parties in the same complaint, for judicial redress.

By the Code, the plaintiff must state the facts which constitute his cause or causes (if he has more than one which may be united, and he chooses to unite them) of action; but the Code does not authorize this omnibus sort of complaint—stopping as it goes along to take in other parties.

By the Code, the plaintiff may in his complaint present the facts which constitute Ms case or cases, if he has more than one, which may be united; but he cannot experiment with the court by trying first his own case and then that of himself and others.

The Code may cover a multitude of sms, but it is not so charitable as to permit the plaintiff to drop his own case and take up that of himself and neighbors in the same action.

These would have been my views upon the question of pleading raised by this ground of the demurrer in this case.

I have not looked into the decisions upon this or analogous questions in the books, for this point raised by the demurrer has been rendered quite unimportant in this case by the decision in the case of C. Y. S. Roosevelt a. Draper and others, at the last May general term in the First Judicial District. In that case it was held that a tax-payer, as such merely, has not such an interest as enables him to maintain an action in behalf of himself and all other tax-payers of the city, to amoid a deed or grant which has leen' actually executed ly the corporation, upon the ground of fraud, want of authority, or irregularity.

With that decision falls all that part of the plaintiff’s complaint as a tax-payer, merely setting forth the rights and wrongs of the tax-payers at large of the city of Hew York, and claiming that the grant to Durfee, &c., should be declared void.

According to this decision the plaintiff’s complaint does not show that he has any cause of action, unless, as proprietor of the lot on West-street, described in the complaint, he is entitled to a grant of the land under water adjoining, from the corporation of the city; and one of the grounds of the demurrer being that the complaint does not state facts sufficient to constitute a cause of action, the only remaining question raised by the demurrer is whether, on the facts stated, the plaintiff is entitled to a judgment that the corporation execute such grant to him.

This is the important question in this case, and although it appeared at first a question of some difficulty, and much learning and logic were exhausted on the argument of it, yet it turns out upon examination, I think, to be exceedingly simple, requiring only a careful attention to the facts and a close scrutiny of the nature or character of the pre-emptive right claimed by the plaintiff to the land under water, under the act of 1837, for its solution.

How, what are the facts stated in the complaint bearing on this question, Whether the plaintiff himself has a right to a grant from the corporation for the lot or land under water in question ? In 1827 the mayor, &c., of the city of Hew York, being the owners in fee of a certain lot of land under water upon the eastern shore of Hudson Eiver, adjoining West-street, granted the same in fee to one James Patten. In 1832, Patten conveyed a part of the same in fee to one Mercein. Patten and Mercein subsequently filled in the same, and streets and wharves were laid out and constructed thereon.

Afterwards, in 1833, Mercein, by his two several conveyances, conveyed several parts or portions of the same to the plaintiff in fee; and, at the same time, the plaintiff executed a mortgage of one part to Mercein for §8000, and of the other part to the Hew York Equitable Insurance Company for §1000.

Afterwards, in June, 1833, Mercein assigned his mortgage to the insurance company, and in 1835 the plaintiff executed another mortgage of one of the parcels so conveyed to him to the same insurance company for $3000.

In 1836 these mortgages were all assigned to the mayor, &c., of the city of Hew York.

In 1840-1842 the mayor, &c., foreclosed these mortgages, purchased the mortgaged premises for $10,000, and obtained a master’s deed therefor.

By section three of the act of April 12, 1837, establishing the Thirteenth Avenue in the city of Hew York, and extending the exterior limit of the city along the eastern shore of Hudson Eiver, between Hammond and- One Hundred and Thirty-fifth-streets, the mayor, &c., were vested with all the right and title of the people of the State to the lands covered by water between Hammond and One Hundred and Thirty-fifth-streets, and extending westerly from the westerly side of lands under water granted to the mayor, &c., under the act entitled “ An act relative to the improvements in the city of Hew York,” passed Feb. 25,1826, to the westerly side of Thirteenth Avenue, as established by the act of 1837.

The premises so granted to Patten by the mayor, &c., in 1827, and parcels of which were so afterwards conveyed by his grantee to the plaintiff, and mortgaged by the plaintiff, was a portion of the land under water, the title to which was vested in the mayor, &c., by or under the act of 1826.

By section 4 of the act of 1837, “ the proprietors of all grants of land under water, or of water-lots, heretofore made by the said mayor, &c., shall have the pre-emptive right in all grants to be made by the said mayor, &c., of any lands under water granted to them by this act, adjacent to and in front of the lands so heretofore granted, &c.”

The plaintiff claims that, notwithstanding his mortgages, he was, when the act of 1837 was passed, proprietor of the mortgaged premises within the meaning of section 4; and being such proprietor then, has now, notwithstanding the foreclosure and sale under the mortgages, this pre-emptive right, and is now entitled to a grant from the corporation.

If this mere statement of the plaintiff’s facts and claims is not sufficient to show that he has no claim to this pre-emptive right or grant now, a very slight examination of the nature or character of this pre-emptive right will make it perfectly clear that if the plaintiff, as proprietor of the mortgaged premises, when the act of 1837 was passed, took or had this pre-emptive right under the act, it passed from him, by the foreclosure and sale, with his proprietorship and title in the mortgage ; not as a vested right or interest in or to a specific separate independent piece or lot of land ; or even as an appurtenance to or of the mortgaged premises; not as a right or interest or estate in any lot or land ; but as a right to cm interest or title, or to the grant of cm interest or title, in and to a certain specific lot of land given to the proprietor of a certain other adjoining lot of land, incident to and inseparably connected with the proprietorship of such other adjoining lot.

This pre-emptive right, which, it may be conceded, the plaintiff had and took as proprietor of the mortgaged premises, under the act of 1837, was not a personal independent right of the plaintiff, capable of separate independent conveyance or disposition; nor was it strictly an incident or appurtenant of the mortgaged premises, but of the plaintiff’s estate and proprietorship in the mortgaged premises, and passed with such estate and proprietorship under the foreclosure and sale.

The whole argument of the counsel for the plaintiffs is founded on his starting error, that this pre-emptive right was, or is, a right or interest in land.

It was and is a right to the grant of a right or interest in land. The act does not give the title of the people to the proprietors, but to the mayor, &c.

The third section vests the title in the mayor, &c., and the fourth section secures to the proprietor the first offer of a sale of a right and interest—the right to purchase a right and interest in the land under water first. When a grant from the mayor, &c., under the act, is called for, the question is, who is the proprietor, not who has been or was when the act was passed.

All the plaintiff’s estate and interest in the mortgaged premises having passed from him by the foreclosure and sale, nothing can be clearer than that he has not been since, and is not now, entitled to the grant which he claims under the act of 1837.

The defendant must, therefore, on. the whole case, have judgment on the demurrer, with costs. 
      
       Present, Sutherland and Clerke, JJ.
     