
    The Mayor, etc., of the City of New York, Resp’t, v. Jonas Sonneborn, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    Municipal . Corporations—(City op New Tork) —Department oe docks- — Power to lease piers — When lease cannot be questioned — Laws 1870, Chap. 388, § 37; 1871, Chap. 574; 1873, Chap. 835, S 88;, 1883, Chap. 410, § 716.
    The department of docks have by statute an absolute and exclusive discretion in determining what piers shall be leased and for what terms, not exceeding ten years, and are given general authority to make leases-therefor; for “other than for districts appropriated by the hoard for spcc-
    ' ial commercial interests (which), shall be made at public auction to the-highest bidder,” and in the absence of fraud a defendant who has enjoyed the benefit of the contract, and where the lease is not illegal in itself, cannot he permitted in an action founded upon it, to question its validity.
    This is an appeal by defendant from a judgment of the-general term of the supreme court, first department, affirming a judgment in favor of the plaintiff after trial before the court without a jury.
    
      A. J. Dittenhoefer and David Gerber, for app’lt; D. J. Dean and William Turner, for resp’t.
    
      
       Affirming 40 Hun, 639, mem.
      
    
   Danforth, J.

—On the 21st of April, 1873, the, defendant, -took a lease from the plaintiff, through the commissioners of the department of docks, of a certain pier in the city of ■New York for the term of five years from the 1st of May, 1873, and agreed to pay therefor the annual rent of $5,000-in equal quarterly payments, the first payment to be made-August 1, 1873. He took and retained possession of the premises, but failed to pay the rent due August 1, 1874, November 1, 1874, and February 1, 1875, and this action was brought for its recovery.

The defendant answered, denying none of the material allegations of the complaint, but setting up new matter by way of defense. At the trial he at once assumed the affirmative, and put his defense on the sole ground that-the lease was not made after, or in pursuance of any sale by public auction of the privilege conferred thereby. This was conceded by the plaintiff, and found by the court to be the fact, .and the only question upon this appeal is, whether the court below erred in holding that it constituted no sufficient answer to the plaintiff’s cause of action.

The appellant relies upon the statute {infra), which declares that “all leases other than for districts appropriated by said board to special commercial interests, shall be made at public auction to the highest bidder.” (Laws of 1870, chap. 383, § 37). And his contention is that by reason of the omission to comply with this provision, the lease is illegal and void and his contract not enforceable.

No fraud is alleged, nor is it disputed that the plaintiff has performed every obligation on its part and the appellant has had the fuff benefit of the lease in the use of the premises demised, and the collection of wharfage according to its terms. I find nothing in the statute which under the circumstances need embarass the defendant in fulfilling the obligation which he incurred.

The department of docks have, by statute, an absolute and exclusive discretion in determining what piers shall be leased, and for what terms, not exceeding ten years. (Laws of 1871, chap. 574; Laws of 1873, chap. 335, § 88; Laws 1882, chap. 410, § 716.), and are given a general authority to make leases therefor, but for other than the excepted districts (supra), “at public auction to the highest bidder.”

The court below refused to find, as requested by the defendant, that the premises in question were not so excepted, and upon that ground alone it might be said that the defendant failed to bring his case within the statute.

But there is a further reason against his appeal, resting-upon broader ground. He has had the full benefit of the contract, and, therefore,' cannot be permitted in an action founded upon it to question its validity. The principle of estoppel upon which this rule stands, has been recognized and applied in a uniform course of recent decisions by this, court, and there is no feature in the present case which requires a renewed discussion of the subject. Whitney Arms Co. v. Barlow, 63 N. Y., 62; Rider Life Raft Co. v. Roach, 97 id., 378.

If the lease were evil in itself and so void as against public policy, or if it had been declared illegal or void by statute, as the contract was in Pratt v. Eaton (18 Hun, 293), a different question would have arisen. It is simply one of capacity or power, and the rule I have referred to is-applicable to an action brought by a municipal as well as another corporation. The party benefited by its exercise: cannot be heard to deny its existence.

The judgment appealed from should be affirmed..

All concur.  