
    The Consolidated Ice Company, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      A clause in a deed “saving and reserving” any street “ assigned, designated or laid out ”—it is operative independent of the regularity of the street opening proceeding — a resolution, instead of an ordinance, is authorized by chapter 285 of 1852 — the direction to file the map is directory — use of the land reserved—the theory of a trial cannot be abandoned on appeal — a title by grant and one by adverse possession are inconsistent.
    
    The following provision contained in a conveyance, executed by the mayor, aldermen and commonalty of the city of New York, “ Saving and reserving out of the hereby granted premises so much thereof as may form any part of any street or streets, avenue or avenues, that may now or hereafter be assigned, designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned, or which are now in use as such,” operates to except from the grant a street attempted to he laid out over the premises granted, if such street or the land over which it was to he laid out could be located at the time when the grant was made, independent of the question whether the proceeding to lay out the street was regular or not.
    It was competent for the common council of the city of New York, in establishing the permanent exterior street on the Harlem river, authorized by chapter 285 of the Laws of 1852, to act by resolution, rather than by ordinance.
    The provision of chapter 285 of the Laws of 1852, requiring the map of such street to he filed in the mayor's office, was directory merely, and the filing of the map in the street commissioner’s office, instead of in the mayor’s office, did not defeat the laying out of the street.
    The city’s title to the land excepted from the grant was not affected by chapter-150 of the Laws of 1868, authorizing the proprietors of grants of land under water on the Harlem river to construct slips which would extend within the lines of the street, nor by chapter 697 of the Laws of 1887, section 7 of which in terms repeals the act of 1852 so far as it authorizes the street.
    The fact that the city intends to use the land reserved from the grant for other purposes than that of a street does not deprive it of its title to such land.
    A person who brings an action of ejectment, upon the theory that he derived title to the land in question by grant, will not, after being defeated upon that claim, be permitted upon appeal to assert title by adverse possession: the two claims are inconsistent.
    Appeal by the plaintiff, The Consolidated Ice Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of June, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.
    
      James A. Deering, for the appellant'.
    
      Theodore Gonnoly, for the respondent.
   Hatch, J. :

The action was brought under sections 1688 et seg. of the Code of Civil Procedure, to determine a claim made by the defendant to a parcel of land seventy feet wide along the bulkhead line of the Harlem river between One Hundred and Thirteenth and One Hundred and Fourteenth streets, in the city of New York.

The parcel in question was formerly land under water, in part between the original high-water line and low-water line, and in part beyond the low-water line of the river. The city under the Dongan charter acquired title to the land between high and low-water mark (Sage v. Mayor, 154 N. Y. 61), and to the lands outside and to the easterly of the low-water mark from chapter 285 of the Laws of 1852, laying out an exterior street, which, it is conceded, embraces the premises ill dispute.

In 1808 the mayor, aldermen and commonalty of the city of New York made grants of certain lands to Phillip Milledoler which contained the following clause : “ Saving and reserving, nevertheless, to the said parties of the first part and their successors, out of the premises hereinbefore described, so much land as will be necessary to make a street of forty feet wide on the outward part of the soil hereby granted.”

By various mesne conveyances the title of Milledoler in these premises became vested in Stephen Roberts and others, and through Roberts and others in the plaintiff.

In 1870 the mayor, aldermen and commonalty of the city of New York conveyed a portion of the premises described in the complaint to Stephen Roberts and others, adjoining the premises mentioned in the Milledoler grant, which conveyance contained as a part of the description the following clause: “ Saving and reserving put of the hereby granted premises so much thereof as may form any part of any street or streets, avenue or avenues, that may now or hereafter be assigned, designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned, or which are now in use as such.”

The title of Roberts and others in these premises became vested in the plaintiff, and the premises in question are a part of the premises embraced in this conveyance. The Milled oler deed was recorded in the office of the comptroller, in liber E of City Grants, page 508, and the deed to Roberts and others was recorded in the office of the register of the city and county of New York, in liber 1161, page 117, September 15, 1870. Prior to this conveyance, and in pursuance of chapter 285 of the Laws of 1852, a street had been laid out along the Harlem river, known as Exterior street, between the East river or sound, and the North or Hudson river, seventy feet in width, and it is the premises included in this alleged street between One Hundred and Thirteenth and One Hundred and Fourteenth streets that is in question. Therefore, when plaintiff’s predecessors in title took the grant of 1870 from the city embracing these premises, they took it with knowledge of the fact that a street had been attempted to be laid out, assigned or designated through them, and if it had been properly laid out, assigned or designated they took no title to that portion of the premises embraced in the said street, assuming that the clause of the deed hereinbefore quoted constituted a valid exception from the grant.

The premises in question, with other lands, have been designated and laid out as and for a public park, under and pursuant to chapter 746 of the Laws of 1894. It is conceded that Exterior street was never opiened or used by the public, and it appears that the plaintiff and those under whom it claims title have been in possession of the premises since the grant or conveyance of 1870. The plaintiff contends that the so-called exception in the grant of 1870 is void for uncertainty ; that no street had been lawfully assigned, designated or laid out, within the meaning of the grant; that if it had been so laid out, or designated, or assigned, the city afterwards made the exception ineffectual by abandoning the use of the premises for street purposes; and that it has title, if not by grant, by adverse possession. The determination of the questions involved depends upon the construction to he given to the words of the grant of 1870, and the acts of the Legislature and proceedings of the city authorities in relation to the premises.

It cannot be doubted but that the reservation contained in the grant is sufficient to create an exception if the land referred to therein is located with sufficient certainty to show that the exception operates upon it. The language is in substance, and practically in terms, the same as was construed by the Court of Appeals in Langdon v. Mayor (93 N. Y. 129). Therein it was held that the words of reservation constituted an exception and vested title to the street and water lots in the city, or what seems a more accurate statement, the city retained the title in the land and never divested itself of it. As was said by the presiding justice in discussing a similar question : “ But by this grant there was expressly excepted the soil embraced within the limits of the streets shown upon the map annexed to the conveyance. * * * The land in question was not included in the grant, and, therefore, no title passed. * * * They actually excepted the land; did not give any title; did not intend to give any title; ” and it was held, therefore, that no title in the land was obtained. (Mayor v. N. Y. C. & II. R. R. R. Co., 69 Hun, 324.) The same question was again before the court in Mayor v. Law (6 N. Y. Supp. 628), where the same view was taken and affirmed by the Court of Appeals, that court adopting, as had the court below, the opinion of the learned referee upon this subject (125 N. Y. 380, 394). The nature and effect of the exception contained in this grant liavebeen so fully discussed and so decisively determined by the cases which we have cited that it is not necessary to further consider such question.

We are brought, therefore, to an examination of the exception contained in this grant, to see if the same be void for uncertainty in locating the land. This depends in a large measure upon the fact as to whether the street was laid out by the city authorities so as to be certainly located. As the grant was made for a valuable consideration, it is to be resolved favorably to the grantee, and this embraces the certainty of the thing excepted as well as any other questions arising therefrom. (Langdon v. Mayor, supra.) The map which accompanied the grant did not show the existence of the street, but this is by no means conclusive of the fact that no street was there. If in fact Exterior street was laid out prior to the grant, the exception operated to reserve the title thereto in the city, as the language of the exception in terms works such a result, and the failure to designate the same upon the map which accompanied the grant would not defeat the city’s title. It must be conceded, in fact, such is the averment of the complaint, that a street was attempted to he laid out by the city over the premises, the subject of the grant. In this connection the complaint avers that the street is designated upon a map filed in the office of the street commissioner of the city on or about the 10th day of September, 1859, and was entitled “Map of Exterior Street in the City of New York along the shore of the Harlem River from Eighty-ninth street on the East River to the North or Hudson River laid down in conformity. with the exterior line as established by the Harbor Commissioners by virtue of an act of the Legislature passed April 17, 1857, and in accordance with the resolution of the Common Council of October 26, 1858, prepared by Henry L. Southard, City Surveyor, 1858 and 1859.” It is'also an averment of the complaint, and the same is sustained by the proof given upon the trial, that the city adopted a resolution laying out the particular street and assumed so to do. If the proceedings theretofore had were sufficient to lay out the same, then we think that it must be conceded that there was at the time of the grant an existing street which could be certainly located, and that the reservation in the grant excepted the title to such street therefrom and that such title did not pass by it, but remained in the city. It appeared that on the 11th day of January, 1858, a petition was presented to the common council to have Exterior street laid out along the shore of the Harlem river. On the twenty-fifth of January following the petition was referred to the committee on roads. On September 20, 1858, the committee made its report. On October 4, 1858, the report of the committee was adopted. The. matter was then laid over till October 25, 1858, when the report of the committee fixing the exterior line of the Harlem river was adopted, and upon the next day the resolution was approved by the mayor of the city. On the 12th day of September, 1859, a communication was made to the aldermen by the street commissioner relative to laying out said street and transmitting maps showing the line of Exterior street seventy feet in width. At the same time a resolution was submitted authorizing the commissioner to cause the necessary surveys to be made and maps prepared defining the lines of such street;

this was referred to the committee on roads, and on September twenty-sixth the committee made a report transmitting a map showing the line of such street and the resolution pursuant to which the survey and map were made. A resolution was thereupon adopted confirming the same, and it was directed to be sent to the board of councilmen for concurrence. On the twenty-fifth of October such hoard registered' its concurrence and, by resolution, adopted the same. This resolution was approved by the mayor on the 28th of October, 1859, and the maps were filed in the office of the street commissioner of the city and are the maps showing this street to which reference has been made. It is insisted that these proceedings were ineffectual to establish the street, for the reason that it must have been established by ordinance and that a resolution was ineffectual for the purpose ; that there was failure to give proper notice of the proceedings, and that in any event the grantees were not chargeable with notice of the maps filed in the office of the street commissioner. It is to be observed that authority to lay out the street was derived from the act of 1852, and by its provisions no particular form of procedure was provided. The act simply provided that the mayor, aldermen and commonalty lay out and fix a permanent Exterior street, cause a map thereof to be made, and when the same ivas approved by the mayor, aldermen and commonalty, it was to be filed in the office of the mayor. Any proceeding, therefore, that indicated the lines of the street with certainty and was evidenced by a map, would answer the terms of the act. There can be no doubt but that the action of the aldermen and councilmen definitely fixed and laid out this street in such form and certainty as clearly evidenced its location and boundaries. This received the approval of the mayor, and nothing was left uncertain in the location of the street. The map was filed in the street commissioner’s office, while. the act required that it be filed in the office of the mayor. This departure from the terms of the statute, however, did not defeat the laying' out of the street as the provision in this respect must be regarded as directory. (Jackson ex dem. Hooker v. Young, 5 Cow. 209 ; People v. Supervisors of Ulster, 34 N. Y. 268.) The street was definitely located, the acts were regular and evidenced it. If there had been an entire failure to file the map it would not have affected the existence of the street if it could be otherwise located. The map was evidence of what had been done ; it was not the street, but evidence of it.

If, however, the charter provisions be held to apply to the laying out of this street, we do not think the result will be changed. There is no specific Provision of the charter of 1857 (Chap. 446, Laws of 1857), to which our attention has been called, which requires that the action of the authorities charged with laying out the street should be by ordinance rather than by resolution. By section 11 of the charter a legislative act may be by ordinance, act or by resolution. The only provision requiring the formality of an ordinance is found in section 37, which provides that all ordinances and amendments of ordinances shall be published. And the requirement is that if the action contemplate any specific improvement, or involve the sale, disposition or appropriation of public property, or the expenditure of public moneys or income therefrom, or lay any tax or assessment, the ordinance shall be published. The only requirement which seems to have made an ordinance proper, rather than a resolution, is found in the provision that if the act “ shall contemplate any specific improvement, or involve the sale, disposition or appropriation of public property,” the ordinance authorizing it shall be published. There is no command found in this provision in terms which requires an ordinance. The command is that if the ordinance be passed it shall be published, and this requirement has been held to be directory and that failure to publish did not invalidate the proceeding. (People v. Carpenter, 24 N. Y. 86.)

If there had been an attempt to make these acts the basis for an assessment or the creation of a charge against the property of the taxpayers, a different question might have been presented. It might well, be that such irregularity would defeat the right to impose a tax and bring the case within the principle decided in Matter of Douglass (46 N. Y. 42); Moore v. Mayor (73 id. 239). In the present case, however, the city of New York is not required to incur any expense in the creation of this street as between the grantees in the deed and the city. For, by an express covenant in such deed, the grantees assumed the duty of creating the street and keeping the same in repair. Assuming, however, that the street was not lawfully laid out, the fact remains that the city had attempted at least to lay out a street and it had so far proceeded in this direction that the particular boundaries of a street seventy feet wide across the strip of land, the subject of the grant, were located with certainty. It was this particular strip which the language of the exception, contained in the grant, fairly embraced, and the intent to exclude it from the operation of the grant is left in no measure of doubt from the language used. The intent to make exception of the land, the act of the grantor in clearly locating the ground upon which the exception should operate, and the notice which the grantees had of Avhat Avas clear in intention, operated in law to exclude from the grant such land under well-settled rules of construction. (Clapp v. Byrnes, 3 App. Div. 284; Harriot v. Harriot, 25 id. 245; Broome Leg. Max. *600.) The rule which gives effect to language working an exception or reservation to the grant is not different from that which construes the grant itself. (3 Wash b. Real Prop. 384, 440, 445 ; Langdon v. Mayor, supra.) The question does not turn upon the technical doctrine of notice, either of the filing of the map or otherwise, but upon the fact of the existence of a definitely located street. The grantees are not protected by the fact that they were not required to search in the commissioner’s office for the map as evidence of the street. The notice contained in the deed excepted the street from the grant, and if the street or the land over which it was to be laid out could be located at the time when the grant was made, the grantee was chargeable with notice of it whether the map was recorded or not, or the proceeding were regular or not. It is the fact which governs, and not the notice of the fact. Unless, therefore, other matters have Avorked a different result, this street is excluded from the grant and title thereto did not pass.

It is insisted by the plaintiff that other matters work such result, and the claim is made that the premises in dispute are situated upon the East river and not upon the Harlem river; and that as the street excepted in the grant Avas located upon the East river, it does not fall within the terms of the exception, as there was no jurisdiction in the city to lay out a street along the East river. This contention as to location has been abundantly disapproved by the evidence, and the court has expressly found against the defendant’s contention in this respect.

So far as the acts of 1855 and 1857 are concerned, they did not supersede or repeal the act of 1852, under which the defendant obtained title to the street. There is nothing in their terms which works a repeal or which is in conflict with its provisions. These acts authorize the establishment of bulkhead and pierhead lines for the protection of the harbor and to guard against encroachments. The act in no manner interfered with the authority of the city to lay out the street. The harmony of the system was recognized by the city when it adopted the resolution authorizing the street, for therein it is recited that the street shall be in conformity witli the exterior line laid down by the Harbor Commissioners.” Nor can the plaintiff derive any aid from chapter 697 of the Laws of 1887. That portion of section 7 which in terms repeals the act of 1852, so far as it authorizes the street, is probably an infringement of the .'State Constitution, article 3, section 16, as it can scarcely be stretched sufficiently to fall within anything contained in the title, or to which reference is therein made. But if it were otherwise, by its very terms, the title to the land is confirmed in the city, and the plaintiff could take nothing thereby. At most, if it could be held to apply, it could only be held so to operate as to work a discontinuance of the street, but the title of the city thereto would not be affected or impaired.

It is further claimed that chapter 150, Laws of 1868, has operated to destroy this street and the rights of the city therein. It may be conceded that the construction of slips from the bulkhead line over the street where the street when physically established would run, is wholly inconsistent with its use as a street. It is quite evident that the existence of the slip would destroy the street and the construction of the street would ■ destroy the slip. Such condition, however, cannot so operate as to change the title to land. The act in question makes lawful the construction of the slips by the proprietors of grants of land under water on the Harlem river. No> obligation, however, is imposed to make such construction, its provisions in this respect being purely permissive. It does not purport either in terms or otherwise to vest in the proprietors of the water grants any title to the land out of which the slips are excavated. If this land was vested in the city it would not be competent for the Legislature, by the act, to divest the city of such title ; and had the act in terms attempted to work such result, it would be futile for the purpose. The Legislature is possessed. of no such power. But the act, by its terms, does not even attempt to change the title to lands; it simply authorizes a particular use. The grant to Boyd was made after the passage of the act; and when it was taken it was then known, or at least the grantees were chargeable with notice, that the land in which the excavation for the slips might be made was within the lines of the street, and that the city excluded the title to such land from the grant. Therefore, the only right which could be obtained by virtue of the terms of the act was subject to the title of the city.

It seems clear, therefore, that nothing which appears in this act is available upon which to base the claim that the city lost title in the land or that the grantees in the deed or their successors in title obtained title or right thereto superior to the city’s claim. It matters not that the city proposes to use the land for other purposes. As was said by Van Brunt, P. J.: “A grantor who states in his deed that he excepts a certain portion of the land because he wants it for a certain purpose, cannot be held to have conveyed that which he has expressly excluded because he afterwards devotes it to a different purpose.” (69 Hun, 326, supra.)

The theory of the action as averred in the complaint and proved upon the trial rested upon the claim of title by grant. There was not even pretense of title by adverse possession made upon the trial. The plaintiff must, therefore, rest upon the theory of its action, and the proof given in support of it. It is not permissible to assert a right to ‘relief based upon a grant, and being defeated upon that claim upon the trial assert another and entirely different claim upon appeal. (Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437; Heimburg v. Manhattan Ry. Co., 162 id. 352.) In addition to this, the two claims are entirely inconsistent. The claim of title by adverse possession is inconsistent with claim of title by grant. The latter is the sole theory set forth in the complaint, and as the plaintiff has failed to establish such claim, it must fail in the action.

Other questions are raised, but they do not require discussion, as they are not fatal to the conclusion which has been reached. We are convinced that the plaintiff has failed to make a case entitling it to the relief which it asks. N or do we think it necessary to determine upon this appeal what rights, if any, are possessed by the plaintiff in and to any rights or easements. Upon the present proof it is by no means clear what these rights are, and we can scarcely lay down rules therefor when we do not know what the facts are. Nor do we think that the trial court should have retained this action for the purpose of determining the interest or the plaintiff’s rights, if any, in the premises. The theory of the complaint and all its proof proceeded upon the ground that the plaintiff had title to the land. The demand for judgment was that the defendant and all other persons claiming title under the defendant subsequent to the commencement of the action be forever barred from all claim to any estate or interest of any kind in the promises. - There was not a suggestion made at the close of the proof that- the court should determine any other question than that of title. In order to have determined any other right it would have required that the case be opened and that proof be given upon the subject, as the proof offered was not sufficient to determine such question: As the plaintiff chose to rest its case without proof upon this question, or the reservation of any right to make further pi roof, and compelled the court to determine the case upon the issue upon which it chose to stand, we think that it cannot be heard in complaint upon such questions.

The judgment as rendered does not foreclose the plaintiff in having its right in this respect settled in an appropriate action for that purpose. The defendant, had it set up its title, and demanded affirmative relief, would have been entitled to judgment upon this proof awarding it the possession of the land. (Code Civ. Proc. §§ 1641-1644.) Its plea does not seem, however, to bring it within these provisions of the Code.

The judgment dismissing the complaint seems to have been the appropriate judgment. It should, therefore, be affirmed, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  