
    THE PEOPLE on the relation of THE MAHOPAC MANUFACTURING COMPANY against VAN NORT.
    
      Supreme Court;
    
    
      Special Term, January, 1874.
    Mandamus. — Contract by Public Officer. — Vested Right.
    The relators agreed with the commissioner of public works of the city of New York, that the latter might enter on their property, and connect a lake thereon, with the aqueduct of the city, on condition that the commissioner should apply to the legislature for the passage of an act authorizing the purchase of the lake, &c., or the taking of the same by process of law for just compensation; and pursuant to this agreement, the commissioner entered and used the waters, and the legislature passed an act for the purpose contemplated, and the city, for a considerable period, enjoyed the use of the water; but the commissioner and his successor failed to agree with the relator on a price, or to take proceedings to acquire the property; and the city finally ceased to make use of the waters. Held, 1. That these facts did not constitute the relation of vendor and purchaser between the relator and the city.
    2. Such a contract by the commissioner, if one had been made, would not bind the successor of the commissioner nor the city, without a ratification.
    
      3. The agreement, and the statute passed consequently, and the mere commencement of proceedings to take the relator’s property, would not, atdeast until a report of commissioners thereon, confer, any vested right on the relator.
    
    The Lake Mahopac Manufacturing Company applied to the supreme court, on affidavits, for the issue of a mandamus to compel George L. Yan Nort, the commissioner of public works of the city of New York, to make application to the supreme court for the appointment of commissioners, to ascertain and appraise the compensation to be paid, by the city, to the relators, for property taken by the city under an arrangement originally made with William M. Tweed, the predecessor of the defendant, and the act of February 27, 1871 (1 Laws of 1871, p. 88, ch. 56).
    The allegations relied on by the relator were to the following effect:
    Tweed, acting in behalf of the city, but at first without authority, entered into negotiations with the relators to obtain the use of the waters of Lakes Kirk and Mahopac, for and in behalf of the city.
    Those negotiations resulted in an agreement, that he might take possession of the property in behalf of the city, with the understanding that he should apply to legislature for authority to acquire title to it for the city, either by purchase or by due process of law.
    He took possession pursuant to that, agreement and understanding, and the legislature subsequently conferred upon the commissioner of public works the requisite authority to acquire title to the property (Laws of 1871, pp. 88, 639; Laws of 1873, ch. 344).
    Being unable to agree with the owners of the property as to the price to be paid therefor, Tweed, before he went out of office, in the latter part of 1871, not only to agreed make an application for the appointment of commissioners, but caused the papers to be prepared for such application.
    From the time Tweed so took possess!tih in behalf of the city down to the time the respondent came into office, the city retained possession of and used the property and exercised acts of ownership over it, by constructing the necessary works thereon for drawing the waters from the lakes, and conducting the. same to the Croton mains leading to the city.
    
      Henry W. Johnson, for the relator;
    Insisted that the plaintiff showed that the defendant had ratified Mr. Tweed’s election to take the property, and that Philips v. Thompson (1 Johns. Ch., 131), recognized the relator’s right to have a decree for specific performance, since they had shown complete performance on their own part.
    
      William R. Martin, for the defendant.
    I. Insisted that the only form in which a mandamus could issue would be to compel the commissioner to exercise Ms discretion in reference to whether the property should be taken (People v. Supervisors, 24 How. Pr., 119; People v. Croton Board, 49 Barb., 259; People v. Green, 64 Id., 162, 493; People v. Supervisors, 51 N. Y. 401).
    II. A mandamus, if issued, would be fruitless, because under the statute (3 Edm. Stat., 621, § 14), his application for the appointment of commissioners to take the land must be founded on his affidavit of its necessity, which he could not make (People v. Tremaine, 29 Barb., 99 ; People v. Commissioners, 27 Id., 94; People v. Canal Board, 4 Lans., 274),
    
    III. The extent of land needed had not been defined, nor had the land been appropriated. In the cases where mandamus is granted to public officers or parties directing them to take proceedings to acquire title to lands for public use, there has been a distinct appropriation of the land by the statute, or there has been an explicit act by the officer or party declaring •and defining the land needed, which by the statute or by the law has been made final and conclusive in respect to its condemnation (See Brooklyn Park Commissioners v. Armstrong, 3 Lans., 429 ; People v. Common Council of Brooklyn, 22 Barb., 412; Morgan v. Metropolitan R. Co., Law R., 1 C. P., 103; Fotherly v. Metropolitan R. Co., 2 Id., 188; Reg. v. Woods & Forest Com., 12 Jur., 915).
    IV. The relator asks more than he is entitled to, for defendant may decide that a part of the land is unnecessary (People v. Green, 64 Barb., 174; People v. Commissioners, 22 How. Pr., 291).
    V. The use already made did not give vested rights (People v. Brooklyn, 1 Wend.; 318 ; Wolfe v. Frost, 4 Sandf. Ch., 95 ; Story Eq. Jur., § 760 ; Lowry v. Tew, 3 Barb. Ch., 407)
    VI. A clear and precise right has not been shown; and the mandamus should therefore be denied (People v. Supervisors, 11 N. Y. [1 Kern.], 563 ; People v. Morton, 62 Barb., 572 ; People v. Canal Board, 13 Id., 444 ; People v. Green, 63 Id., 390).
    VII. The city should be allowed to recede, and discontinue proceedings (Buck v. Parish of Marylebone, 15 Q. B., 761 ; 20 L. T. N. S. Q. B., 697; People v. Croton Board, 49 Barb., 259; People v. Brooklyn, 1 Wend., 321; Phillips v. Thompson, 1 Johns. Ch., 131).
    
      
       Compare Matter of Washington Park, p. 148 of this volume.
    
   Gilbert, J.

I am very clear that this motion should be denied:

First. Strictly speaking, the engagement of Mr. Tweed was that the requisite legislative authority to acquire the relator’s property, either by purchase or compulsorily by the right of eminent domain, should be procured. This was accomplished by the act of February 27, 1871.

Second. The transaction between Mr. Tweed and the relator did not create the relation of vendor and purchaser between the relator and the city. Mr. Tweed was not empowered to enter into such a contract on behalf of the city, nor was he the agent of the city for such a purpose by virtue of his office of superintendent of public works. The contract itself, as stated by the relator, was merely that authority to acquire the property should be obtained. -What should be done after the authority should have been obtained was not stated in it. Neither party engaged to do anything ; the relator did not become bound to sell or the city to buy.

Third. Such a contract by a public officer would be against public policy and void at the election of the principal for whom he ostensibly acted without some act of ratification by the latter. A public officer cannot thus bargain away beforehand the discretion reposed in him by law (Bliss v. Matteson, 52 Barb., 345; S. C., 45 N. Y., 22). Much less can he bind his successor in that way. There has been no ratification by the city authorities, for the reason that it does not appear that they ever knew of the existence of the contract or of the claim of the relator in respect to it. Mr. Van Nort had no more power to ratify than Mr. Tweed had to make the contract.

Fourth. Nothing has been done under the act of 1871 which gave the relator any vested rights. The act authorizes the commissioners of public works to make a voluntary purchase, or, if that cannot be effected, to take the required proceedings to acquire title to the property compulsorily. It does not take or appropriate the property of the relator, or even specify the property which it authorizes to be acquired, but is general in its terms, and authorizes the acquisition of any property. Nothing of any legal importance has occurred with respect to the matter since Mr. Tweed went out of office. While he was in office negotiations for a purchase were had between him and the relator, which produced no result, and he directed the preparation of the necessary papers preliminary to an application to the court for appointment of commissioners of appraisement pursuant to the act of 1871, which the relator avers were, in fact, prepared. But no application had ever been made, and the defendant has determined that none ought to be made. He is vested with exclusive discretion on the subject, and the court has no power to coerce the exercise of that discretion. Even if such an application had been made and even now pending, those facts alone would not vest any right in the relator; for the act of 1871 adopts the provisions of the general railroad act on this subject, and by the latter act the proceedings remain inchoate until confirmed by the court, or, at all events, until the report of the commissioners shall have been made. Before the proceedings are complete neither party acquires any vested right (People v. Brooklyn, 1 Wend., 318; Hill v. Commissioners of Worcester, 4 Gray, 414).

• No hardship accrues to the relator from the application of these principles. He dealt with a public officer and is charged with knowledge that such a person can act only in a trust capacity for the public good and in conformity with the law creating the trust. If he has sought by means of antecedent engagements to control the performance of the trust created by the act of 1871, for his own benefit, he cannot complain that the law will not sanction,,the accomplishment of such an object.

The motion must be denied, but without costs.  