
    WILLIAM H. CHRISTIE, Appellant, v. RANSOM PARKER, Respondent.
    
      Lease of piers in New York — right of the city to resume possession — what sufficient evidence of its having done so — effect of a fa/Hu/re to gime notice to a lessee, as required try the lease — waiver thereof.
    
    Appeal from a judgment in favor of the defendant, entered on a trial at Special Term.
    This was an action for rent. The plaintiff being the lessee from the city of certain piers, sublet to the defendant a part of one ©£ them. The original lease to the plaintiff contained a provision, in substance, that the city might, at any time, set apart for its own use any or all of such piers, the plaintiff, in that- case, to have an equitable deduction from the rent reserved. The lease from the plaintiff to the defendant was expressly made “ subject to the terms and conditions ” of the original lease. In June, 18J0, the city took possession of the premises so sublet to the defendant, and used them for the purpose of one of the free floating baths. The effect was to deprive the defendant of the use of the pier. There was a judgment of dismissal, and the plaintiff appeals.
    The court at General Term said : “ The appellant makes several points, which will be separately considered. Eirst. He contends that the pier was taken for the free floating bath without due corporate action, and that consequently what was done in that regard amounted to a mere trespass. The argument is, that if the act was unauthorized, there was no setting apart by the city under the original lease, and that the plaintiff here is not responsible for any other manner of eviction. We think, however, that the facts justify the conclusion that the city did take possession of these premises. It was not necessary to show a direct or specific resolution with regard to this particular pier. What was shown was a general ordinance, placing the free floating baths, ‘ which may have been purchased by appropriation from the county treasurer, under the control and government of the department of public works,’ and giving that department the power to determine and govern their use. Hnder this ordinance the department located a free floating batb on tbe premises in question, where it remained during tbe entire season. The contractor who did tbe work was subsequently paid for it by tbe corporation. Tbe plaintiff knew that tbe batb bad been thus located; in fact tbe premises were in sight of bis office, yet be took no measures in disaffirmance. This evidence was ample to justify tbe inference, and, consequently, tbe finding that tbe city resumed possession of tbe premises, and did so with tbe plaintiff’s acquiescence, pursuant to tbe power reserved in tbe lease. Second. Tbe plaintiff further insists that tbe omission of tbe comptroller to give tbe plaintiff notice of tbe city’s intention to take tbe premises was fatal. It is true that tbe original lease makes it tbe duty of the comptroller to give such notice, and that it specifies the time of its service as tbe time when tbe right to tbe part of the premises retaken shall vest. But this notice was not in tbe nature of a condition. Tbe right to resume was absolute and could not be affected by tbe neglect of a subordinate officer to perform a duty imposed upon him by tbe lease. Besides, tbe notice could be waived by tbe lessee. And we think tbe plaintiff’s inaction, under tbe circumstances disclosed by tbe evidence, justified tbe court in finding such waiver.”
    
      Wm. Hemry Arnoux and Wm. F. Mac Rae, for tbe appellant.
    
      John, F. Bwrrill, for tbe respondent.
   Opinion by

Barrett, J.;

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.  