
    In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of the City of New York, Respondents, to Acquire Real Estate, etc. Southern Aqueduct Department, Section No. 15. Claim of Kensico Cemetery. Reese Carpenter and Others, Appellants.
    Second Department,
    May 12, 1911.
    Eminent domain — New York city—water supply —lands of cemetery — holder of land shares—right to be heard — waiver — deed — condition subsequent— reverter.
    Where a cemetery corporation, pursuant to power conferred by the act under which it was incorporated, purchased land and gave back “land shares ” to the grantor, whereby it agreed to pay her one-half of all moneys received from the sale of cemetery lots made from the land, the holders of the shares have a right to be heard upon a proceeding by the city of New York to condemn the land for its water supply.
    The holders of such shares have an interest in the land within the meaning of sections 13, 13 and 19 of chapter 734 of the Laws of 1905, providing that the city shall make compensation to every person interested in the land taken and requiring the commissioners of appraisal to hear the proof of any person interested in such real estate.
    The agreement of the cemetery company with the owner of the land when it purchased it created a condition subsequent that the property should be devoted to cemetery purposes, and a non-compliance with the condition would have defeated the estate.
    Where such land is taken by the sovereign the effect of the forfeiture will be admeasured in money according to. the rights of the respective parties.
    Since the Revised Statutes the possibility of a reverter has not been an estate in land.
    The holders of the land shares did not waive them right to be heard by failing to appear before the commissioners of appraisal when the proceeding was first heard, and where the original proceedings have been set aside on other grounds and a new hearing ordered they should be allowed to present them claim and evidence to support it upon the rehearing, for section 19 of chapter 734 of the Laws of 1905 allows interested parties three years within which to appear.
    Appeal by Reese Carpenter and others from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester oil the 14th day of December, 1910, denying the appellants’ motion to reopen the proceeding and refer the same back to the commissioners of appraisal.
    
      Morgan J. O’Brien [James Dunne with him on the brief], for. the appellants. .
    
      I. J. Beaudrias [Archibald B. Watson with him on the . brief], for the respondents. ‘
   Jenks, P. J. :

The proceeding, begun in 1909, is for the condemnation of certain lands, for the purposes of the water supply of the city of New York, pursuant to chapter 724 of the Laws, of 1905, which included a certain tract of 8.6 acres , belonging to the Kensico Cemetery, a corporation organized in 1889 pursuant to an act passed April 27, 1847 (Chap. 133), entitled “An act authorizing the incorporation of rural cemetery associations ” and the acts amendatory. The Kensico Cemetery appeared in the proceeding, filed a claim for; damages and received an award. This appeal is. taken by holders of certain “land shares ” issued by the said Kensico Cemetery, from an order of the Special Term that denies their motion that the report of the commissioners of appraisal with respect to said tract be not confirmed, that the proceedings be reopened and sent back to the said commissioners to hear the proof and allegations of the said appellants in respect to their interest in the said tract, and to ascertain thereon the just and equitable compensation to the said appellants. These appellants, did not appear and were not represented before the commissioners of appraisal: The existence of these land shares was known to the. said commissioners, and the contention was made before them by the attorney for the cemetery corporation that, inasmuch as the title to the tract' was in that corporation, he “as far as it is possible ” represented the interest of the said shareholders. The learned counsel for the city took the position before the commission that, if the landowners were not before the commission, “they have three years from the filing of the oath [of the commissioners of appraisal] within which to present such evidence as they may desire.” (See § 19 of the said act of 1905.) As to this parcel, the commissioners of. appraisal determined and reported that $37,840 should be paid to the owners of. it and the persons interested in it, in full satisfaction, and that the Kensico Cemetery was “ the owner of the land *. * * and the persons entitled to be paid ” the said sum. The opinion of the commissioners annexed to the report reads in-part: Counsel for the City raised the question as to whether the claimant Kensico - Cemetery represented all the legally interested parties in any award which might be made. The ground upon which such question is based was that when the portion of the cemetery in which the land condemned is situated, was conveyed to the Kensico Cemetery corporation, there was an agreement between it . and Caroline. Carpenter, the vendor, that one-half of all the moneys received for cemetery lots should be paid to her and others. Such an agreement is consistent with the cemetery law. The Commissioners regarded this provision as establishing a sort of partnership in the income of the cemetery from the sales of lands for burial purposes, and that the cemetery officials might be regarded as trustees between Caroline Carpenter and themselves of one-half of- the moneys accruing from such sales for the benefit of Caroline Carpenter, or her legal representatives, but that notwithstanding, the full legal title was in the Kensico Cemetery corporation, and it was the only person to whom an award could be made.”

The learned counsel for the city states in his printed points as follows: “If, as is contended, these appellants have not appeared, in the proceeding no decision of the Commissioners-of Appraisal as to their rights or interests or any award to third parties would be binding upon them or cut off them right to compensation, and inasmuch as the Court has set aside said award and reopened the proceedings on other grounds it would seem unnecessary to decide this appeal were it not for the fact that the Commission has decided the order herein is controlling and that appellants cannot be heard before them on the retrial of this parcel.”

The. practical question, then, is whether these appellants are entitled to be heard on the retrial of these proceedings.

Subsequent to the incorporation and organization' of the said Kensico- Cemetery it acquired certain lands, including the tract in. question, pursuant to the provisions of the said act of 1847 that reads as follows: “ Such corporation may agree with a person from whom any lands are purchased for a cemetery, to pay therefor a specified share not exceeding one-half of the proceeds of-all sales of the use of lots and plats made from such land, and such share shall be first applied to the payment of such purchase-money, and the residue thereof shall be applied to the preservation, improvement and embellishment of the cemetery, and the incidental expenses of the corporation. Where lands have been so purchased, and are to be paid for as provided by this section, the prices of the use of lots and plats fixed by the directors and in force when such purchase was made, shall not be changed, while the purchase-price remains unpaid, without the written consent of a majority in interest of the persons from whom the lands were purchased, their heirs, representatives or assigns.” These appellants are the holders of certain certificates issued by the cemetery that evidence the ownership of oné-half of the proceeds of sales of the lots and plats made from such land as aforesaid. This provision of the act of 1847 is revised in section 50 of chapter 559 of the Laws of 1895, and section 70 of article 4 of the Membership Corporations Law, Cemetery Corporations.

In Whittemore v. Woodlawn Cemetery (71 App. Div. 257) this court in its First Department held that similar conveyances were with a condition subsequent that the land must be devoted to cemetery purposes, that the estate would be defeated on non-compliance and a re-entry would be authorized. In American Exchange National Bank v. Woodlawn Cemetery (120 App. Div. 128) the court say: “On dissolution of the corporation there can be no doubt that the holders would have had an interest in the proceeds of sale under judicial process. It has been held that they have an interest in the award made in condemnation proceedings, where part of the cemetery lands are lawfully taken for public purposes. (Whittemore v. Woodlawn Cemetery, 71 App. Div. 257.) ”

The act of 1905 itself contemplates that just and equitable compensation shall be made by the city to “ the owners or persons entitled to or interested in each parcel so taken, or as to which any right, title, interest, privilege or easement is taken, acquired, or extinguished.” It assures the right of “ every owner or person in any way interested in any real estate taken ” to exhibit to the commissioners a statement of his claim, and “to offer testimony and to be heard before them,” and commissioners of appraisal are required to hear “the proofs and allegations of any owner, lessee, or other person in any way entitled to or interested in said real estate or any part or parcel thereof.” (See §§ 12, 13, 19 of said act.) And section 25, defining the term “ real estate,” prescribes that “ The term real estate as used in this act shall be construed to signify and embrace all uplands, lands under water, * * * and any and all easements and incorporated (sic) hereditaments and every estate, interest and right, legal and equitable, in land or water, including terms for years, and liens thereon by way of judgment, mortgages (sic) or otherwise, and also all claims for damage to -Such real estate.”

Since the Revised Statutes the possibility of reverter is not held to be an estate in lands. (See Fowler Real Prop. Law [2d ed.], 313; Upington v. Corrigan, 151 N. Y. 143.) “There is not even a possibility coupled with an interest, but a bare possibility alone.” (Quoted in Upington v. Corrigan,.supra.) In W~hittemore,s Case (Supra) the court held that there was a breach of condition in that the purpose for which the land was to be devoted had failed, but that such breach was worked by an exercise of the sovereign power. While “a mere failure to perform a condition subsequent does not divest the estate” (Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121, cited and approved in Upington v. Corrigan, supra), yet, in this case, “the grantor or his hens” in effect have chosen to take advantage of breach, so far as is possible under the circumstances, in that -they insist upon their right to compensation. In Whittemore’s Case (supra) the court say, speaking of the “beneficial interest in the fulfillment of the condition,” “Such beneficial interest exists in this case in Savor of the grantor and the certificate holders, and is of such a character as authorized them to insist upon the performance of the same.” And in that case the court held that when, there is a breach of condition caused by the sovereign power the rights of the parties must be protected upon equitable principles, and that “the effect of the forfeiture will be admeasured in money according to the respective rights of the parties- where that may be done>” and concluded that, ás the. land could no longer be devoted to cemetery' purposes, the respective rights and. interests of. the. parties- attached to the fund which represented-the land taken by condemnation. ■

■ I ■ think the expressions of the statute are comprehensive enough to embrace the- application of these shareholders. In Mayor, etc., v. Stone (20 Wend. 139) the court, per. Nelson, Oh. J., construing, the expression “ owners of such building, and all’persons having an estate or interest therein,” say: “The term interest (the only word upon which a doubt can possibly be raised), in the connection in which it is found, Clearly imports some share in the building itselfj. and was intended, probably, if not to be regarded as. synonymous with estate, to include any degree of interest of claim' therein which might not, in technical language, fall within, any of the subdivisions of estates.. It' may well, however, be regarded as synonymous> as the- term estate, when used in reference' -to. land, signifies simply, an interest-therein; 2 Black. Oopn. 103; and both terms are in common use in the transfer of titles, as may be- seen in the various, forms of ’conveyance.' The word interest fis. also, frequently used by the Legislature in respect to real estate. 1 R. L. 503, § 1. Laws of 1816, p. 63., and others which might be referred to.” In Matter of Mayor, etc. (34 Hun, 441; 455; affd; 99 N. Y. 569) it was said: “No uncertainty can attend the report of the,, commissioners made by complying with the directions contained in the act concerning the owners of the property, or their interest in- it; so far. as-that may be ascertainéd.. They have been directed to make a just and equitable-estimate of the loss and'damage of the owners, lessees'- and persons interested,, etc.,, terms certainly broad enough to include every possiblé interest-to be compensated by means- of their estimates. (Watson v. N. Y. Central R. R. Co., 47 N. Y. 157, 161, 162.)” lam of opinion, then, that upon the rehearing already ordered, these appellants have á right to • submit' their claims and to offer- their evidence. I think that .the appellants cannot he said to have waived their rights in that they have not heretofore asked for their day in court before the commissioners, in that it is provided by section 19 of the act of 1905 that the interested parties within three years after the appointment of the commissioners may exhibit ■their claim, with the right to be heard.

I advise that the order be reversed, without costs, and the ' motion be granted, without costs.

Hirsohberg, Burr, Woodward and Bioh, JJ., concurred.

Order reversed, without costs, and motion granted, without costs.  