
    The City of New York, Appellant, v. Brooklyn and Rockaway Beach Railroad Company and Others, Respondents.
    
      Contract—power of the town.board of Flatlands, before its consolidation with, New Toi'k city, to contract for the exchange of dock properties.
    
    The town board of the former town of Flatlands," which is now included in the city of greater New York, had no authority, on June 21, 1895, to enter into a contract (without any previous authorization or subsequent ratification by the town in its corporate capacity in town meeting) for the conveyance of a dock by a railroad company to the town in exchange for the conveyance to the railroad company by the town of the town's interest in a piece of property known as “the old town dock.”
    
      Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of February, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint.
    
      Theodore Connoly [George F. Elliott, E. J. Freedman and John J. Delany with him on the brief], for the appellant.
    
      Joseph A. Burr [James McGregor Smith and Isaac M. Kapper with him on the brief], for the respondents,- the railroad company and Thomas E. Pearsall.
   Willard Babtlett, J.:

This is a suit to compel the specific performance of an alleged agreement for the transfer to the city of New York, as the successor in interest of the former town of Flatlands, in Kings county, of a dock situated near the foot of Ninety-second street, in the present borough of Brooklyn.

The alleged agreement, made on the 21st day of June, 1895, contemplated the conveyance of this Ninety-second street dock by the railroad company to the town of Flatlands, in exchange for the conveyance to the railroad company by the town of the town’s right, title and interest in a piece of property known as the old town dock at the foot of Rockaway avenue in Canarsie.

Whatever was done in behalf of the town of Flatlands toward entering into such a contract was done by the town board, without any previous authorization or subsequent ratification by the town in its corporate capacity in town meeting.

The only question in the case, therefore,” say the learned counsel for the appellant in their brief, “ is as to the power of the town board to enter into a contract to release and convey to the railroad its right, title and interest in the old town dock.”

It is quite clear that at the time of the alleged agreement (June 21,1895) the town board had no such power. It was not conferred by any provision of the Town Law, as then in force, either relating to the general duties of town officers or relating to the town board. (Laws of 1890, chap. 569, arts. 4, 7.) The only special legislation, to which our attention lias been called, concerning the sale of town lands in the town of Flatlands is to be found in chapter 283 of the Laws of 1879, and chapter 463 of the Laws of 1894. The first of these statutes authorized the supervisor to execute and deliver a deed of the right and interest of the town in certain lands known as Ruffie Plot, in Jamaica bay, to one Henry L. Schmeelk, but provided that he should not do this until the conveyance should be approved by a majority of the electors of the town voting at a special town meeting called for that purpose. The second act empowered the town of Flatlands to sell and convey a plot of land at Canarsie to the First Methodist Protestant Church of that place. Nothing in either statute bestowed upon any town officer, either expressly or by implication, any authority to convey or to contract to convey town lands in the absence of action directing such conveyance or contract either by the electors of the town or the Legislature. The courts in many cases in which they have been called upon to consider the sale or lease of town lands have assumed that affirmative action of the electors at a town meeting was necessary to authorize such disposition of the town’s real property; and now that the Town Law itself, as amended, expressly permits the supervisor to “ sell and convey in the name of the town property owned by it,” he may do this only “ when directed by a town meeting.” (Laws of 1890, chap. 569, § 80, subd. 7, added by Laws of 1900, chap. 377.) The corporation counsel evidently has not gone too far, therefore, in conceding, as he does upon his brief in this case, “that the power of the town board, as such, did not extend to the conveyance of town property.”

Notwithstanding this concession, however, he insists that the alleged contract to convey was valid, and that it may be enforced (1) because the town and its successors have ratified it by acquiescence and by bringing the present action to recover the railroad dock; and (2) because the railroad company has taken and retained the benefits of the contract and is, therefore, estopped to deny the authority of the town board to make it. I find no sufficient evidence of the ratification thus claimed, and the railroad company’s occupancy of the old dock property does not appear to be due to any action of the town under the alleged contract, but to the affirmative action of the railroad company itself upon its assertion of title thereto as an upland owner having a grant of adjacent land under water. The town authorities have never tendered any conveyance of this property to the railroad company, and they neglected to comply with its request to expel intruders who were occupying the same and to put the railroad company in possession thereof.

Under the circumstances, I think the plaintiff failed to establish the existence of a contract, which was either valid in the first instance or made valid by ratification and estoppel so as to be enforcible by a decree for specific performance. Other questions have been discussed by counsel arising out of the defense of the respondent Thomas E. Pearsall, whose title to the property in dispute has been held to be superior to that of the plaintiff by virtue of the foreclosure of a prior mortgage; but the views which have been expressed lead to the conclusion that the learned trial judge was right in dismissing the complaint, without reference to those questions, and it, therefore, seems unnecessary to consider them further here.

All concurred.

Judgment affirmed, with costs.  