
    City of Brooklyn, Resp’t, v. George Copeland, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Brooklyn (city of)—Lands taken fob city fabk under Laws 1861, chap. 340—Title of city.
    Lands duly acquired under the provisions of the act of 1861, Laws 1861, chap. 840, which authorized the city of Brooklyn to take lands for a public park, are vested in fee in the city.
    2. Same—Constitutionality of act—Who cannot question.
    Constitutional questions affecting the validity of the act cannot be raised by an owner who was paid the price of the land and who executed a deed thereof, and delivered possession to the city.
    
      H. C. M. Ingraham, for app’lt; Almet F. Jenks, for resp’t.
    
      
       Affirming 37 Hun, 643, mem.
      
    
   Peckham, J.

—The lands in this action in controversy became the property of the city of Brooklyn, under the act of the legislature, passed May 2, 1861, being chapter 340 of the Laws of that year.

Upon a sale by the city of these lands the defendant purchased them and has since refused to complete his purchase on the ground that the plaintiff cannot convey a good title in fee. The defendant claims that the act of 1861 did not vest an alienable fee in the plaintiff in lands duly acquired under its provisions, but only a right to the perpetual use of such lands for park purposes. He also claims to raise some constitutional questions regarding the act of 1861, and also the act of 1865, amending that act.

We do not think he is in a position to raise any question of a constitutional character.

It is unquestioned that the lands comprised in this controversy were acquired under the provisions of the act of 1861. In the complaint herein it is alleged that the plaintiff, under the provisions of that act, became and still is the owner in fee and possessed of certain real property (which is the property in question), and that, by an act of the legislature authorizing it (chap. 373, Laws of 1870, as amended by chap. 795, Laws of 1873), a sale of such lands was made to the defendant and that he entered into a contract to purchase, but that he refused to take title or pay the purchase money.

The answer of the defendant admitted each and every allegation of the complaint, except that it denied that the legislative acts therein mentioned were competent to vest in said city the ownership in fee of the lands therein described. This is not . a denial of that part of the complaint which alleges that plaintiff, under the provisions of the act of 1861, became and still is the owner in fee and possessed of certain real property. The eighth section of the act of 1861, provides that after the confirmation of the report of the commissioners of appraisal, and upon payment being made to the owners of the lands, in such report mentioned, or upon their assent thereto, by deed duly executed, the said lands shall vest forever in the city of Brooklyn, for the uses and purposes in this act mentioned. As the complaint alleged an ownership in fee under the provisions of the act, it was equivalent to an allegation of a compliance with the terms of the act, under which the fee was claimed, and hence was the same as an allegation that the commissioners report was confirmed, and that payment was made to the owners of the lands, or their assent obtained by deed, duly executed, and that thereby the lands became vested forever in the city for the uses and purposes mentioned in the act. A denial, therefore, that the acts mentioned were competent to vest in the city a fee in the lands mentioned, clearly does not deny that under the act a payment was made to the owners, or their assent obtained by deed, duly executed, which, if true, would preclude such owners from thereafter questioning the validity of the act.

But the denial under consideration would raise the question as to the quantum of the estate which was thus obtained by the city. By the affirmative admission of each and every allegation of the complaint, which the answer makes, with the exception just spoken of, the only issue raised was one as to the amount of the estate obtained by the city, and the constitutional questions affecting the validity of the act could not be raised by an owner who was paid the price for the land, and who executed a deed thereof and delivered possession to the city. By accepting such payment or executing such deed he, in the language of Judge Folger, in the Brooklyn Park Commissioners v. Armstrong (45 N. Y., 234), renounced any constitutional provision made for his benefit and gave an assent to the taking of the land, even if there were any question as to the validity of the act or any irregularity in the proceedings finder it. And the fair meaning of the allegation in the complaint stating ownership in fee, is that payment was made and accepted, or a deed duly executed.

The form of this admission in "the answer is not broken by what took place on the trial.

The plaintiff’s counsel asked the counsel for defendant if it was admitted that the steps required to be taken by the act for the taking of lands for park purposes, had been taken. The defendant’s counsel said it was, except no admission was made that any awards for the lands were accepted or received by the owners under such circumstances as to operate as a voluntary grant, or to estop the defendant from denying the sufficiency of the acts to vest title in fee in the plaintiff.

This statement does not detract from the admission already of record in the answer. It admits by a very strong implication that awards were - accepted or received by the owners, but left it to proof on their part that they were not so received or accepted as to estop them, etc. The defendant gave no proof on the subject.

Taking it altogether, we are quite clear there is enough in the record to show the assent of the owners to the taking of the lands and an acceptance by them of the price thereof.

The next question arises upon the character of the estate obtained by the city, for this issue is made by the pleadings.

We do not think, however, that it is one which is open to discussion in this court. In the case of Brooklyn Park Commissioners v. Armstrong (supra), it received, a thorough examination at the hands of Folger, J., and that learned judge came to the conclusion that under the act of 1861 the city took a fee, and this opinion was concurred in by the whole court. We do not assent to the proposition that this portion of the opinion was obiter. On the contrary, the question, among other things, was fairly up as to what title the city took under this act of 1861. The case was brought as a test one to try the title, and the court held that the city acquired the fee, impressed with a trust to hold for park purposes, which the legislature could relieve the city from, but that bonds having been issued secured by all the land, no portion could be sold free from this pledge, and as the park commissioners had assumed to convey free from all incumbrances, they could not fulfill, and hence the title was not good. All of these questions were decided in the above case, and we have no disposition to review or to doubt the correctness of the decision reached therein. By the terms of sale of the lands in question in this action, the park commissioners avoided the only difficulty which existed in regard to the sale of the lands mentioned in the Armstrong Case. They advertised to sell the land and to give a full covenant and warranty deed, except as to liens and debts imposed by legislative action, which the city assumed and agreed to discharge.

Every question which has been argued here, other than the constitutional ones, has been decided by the above cited Case of Armstrong, and for the reasons already given the constitutional questions cannot be raised.

The judgment of the supreme court must therefore be affirmed, with costs.

All concur.  