
    *The Mayor, Aldermen and Commonalty of the City of New York against Scott.
    The act of the legislature 011198, re-enacted on the 3d of April, 1801, contains no implied grant of the soil under water, therein mentioned, to the corporation of New York. They are under that act only attorneys for the public. The reservation in their resolve or by-law, of June, 1801, of the slipage arising from piers, erected under grants, made by them, in pui suance of that law, is void. The corporation has no right to slipage on the piers, running into the East River, in front of South street. A slip is an interval or vacancy between two piers. • In an action for money had and received, the plaintiff must show a right in himself
    This was an action commenced in the justices’ court of the city of New York, to recover 18 dollars and 50 cents, for wharfage. The suit being removed into the supreme court, a verdict was, by consent, entered for the plaintiffs, subject to the opinion of the court, on a case, which was shortly this:
    The lands which the corporation of New Yoi’k, under their charter, hold on Manhattan Island, and within the city, extend to low-water mark, and four hundred feet beyond that, in the Bast Eiver. To these are annexed, “ the right, benefit, and advantage of all docks, wharves, cranes, and slips, or small docks within the city, with the wharfage, craneage, and dockage, and all issues, rents, profits and advantages arising, or to arise, or accrue, by, or from, all or any of them.” By an act of the legislature, passed on the 7th of March, 1793, it is declared, that “all the right, title, interest, claim and demand, of the people of this state, of, in, and to all lands, at any time heretofore left for streets or highways, in the city of New York, by any person or persons whomsoever, shall be, and hereby is, vested in the Mayor, Aldermen and Commonalty of the city of New York, and their successors, for the use of streets and highways.”
    In the various grants by the corporation, of their watei lots on the north-easterly side of the coffee-house slip, they had given in fee, the right of wharfage in front, and in consideration of erecting certain piers, given to their granees for 20 years, the wharfage, &c. of the south-westerly tides of such piers, provided they should not grant away the water-lots on that side, which they reserved to themselves a right to do, in which case the wharfage on the south-westerly side was to cease.
    The corporation having granted away the whole of the . land to which they were entitled, under their char- . ter, applied, *in April, 1798, to the legislature, [*544] for an act to authorize them to run streets or wharves, of 70 feet width, in front of the water-lots already granted. This, by a law of that month and year, (re-enacted on the 3d of April, 1801,) the legislature was pleased to grant; and by the same act, the proprietors of lots on the front of which the streets or wharves might run, were to fill them up, and make piers, according to the directions of the corporation. On non-compliance, the corporation were to be at liberty so to do, and receive the wharfage to their own use. It was also further provided, that the cor poration might grant to such proprietors, in fee, a common •nterest in such piers, in proportion to the breadth of their •espective lots, under such restrictions, and within such knits, as the mayor, &c. might deem jpst and proper.
    In pursuance of the authority conferred by this act, the corporation laid out a street, called South-street, in front of the lots they had granted, joining the Bast Biver, and on the 1st day of June, 1801, made a by-law, or ordinance, by which they ordered the respective owners of lots, fronting and bounded on South-street, from the Wall-street slip to the Fly-market slip, to make a pier on the northeast side of Wall-street, and complete it, according to the directions therein given, before the 1st day of November, 1802; on doing which, the corporation would grant the piers to the owners of the said lots, “ reserving in the said grants the exclusive right, in the corporation of this city, of wharfage . and slipage, on the..side of each pier, adjoining a public ■slip, and that the said piers be, in all respects, considered „as public streets or highways, and maintained and kept in .repair by the grantees, their heirs and assigns.”
    Previous to the passing the act of April, 1798, the corporation had laid out the plan of South»-street, and had granted to the proprietors of lots; bounded by the East River, the vacant water-lots between them and South-street.
    Among the grants thus made, there was one the 10th of May, 1797, to John Murray, under whom the defendant claimed.
    By .this grant, Murray, was to make a wharf, or street, of 70 feet in width, along the yvkole front of the lot [*545] granted *to him, (which w,as to be South-street,) and another of at least 25 feet, along the whole west side of the same lot, and of the street, of 70 feet. The same to be and remain public streets; in consideration of upholding, maintaining, and keeping of which in good and sufficient repair, he was to have all wharfage, &c. accruing or arising, by or from the same fronting the East River, or by or from any part thereof.
    Murray accordingly built the wharves and streets, specified in the grant, and also, under the direction of the corporation, a pier running in front of South-street, into the East River, the south-west sides of which, and of the wharves and streets ho had erected, are bounded by, and in a line with, Wall-street slip, which runs in front df Wall-street, and the wharf of 25 feet, built along the south-west sides of South-street, and the lot granted by the deed of IQth May, 1797, to John Murray. This pier, so erected, was not only opposite to the water-lots mentioned in the indenture of 1797, but ran about five feet more to the south-west, upon lands within the bounds of the city, as expressed in its charter, and opposite to the wharf, covenanted in the grant to be built by Murray, which land, however, was not granted to the corporation by their charter.
    
      The pier, from the time of its being made, had been uphcld .by Murray, and no grant of a common interest in it had been made by the mayor, aldermen, and commonalty, agreeable to the act of the legislature already recited.
    The sole question was whether the defendant, to whom, by mesne assignments, the rights of Murray had been conveyed, was entitled to the wharfage on the southwest side of the pier, which ran in front of the five feet of the city lands. If he was, then a .nonsuit .to be entered.
    Riggs, for the plaintiffs.
    The inside of all public slips have been constantly reserved in the corporation grants for the sake of convenience to the city, that its supply by market boats, &c., might not be .impeded. They are under the control of the plaintiffs, and have, in many instances, as in the present, been widened, that they might -be the more effectually cleansed by the tide. For this purpose, in the act of 1798, *the piers (which form [*546] the slips) are under the direction of the corporation. By this act a grant to the plaintiffs of the land,. on which the new piers, in front of South-street, were to be erected, must necessarily be implied; for they are authorized to grant a common interest in them to the proprietors of lots in front of which South-street ran, according to the respective widths of-the same, .under.such restrictions and regulations as the corporation may think proper. They could not grant what they had not. Besides, this implication is acknowledged by John Murray. He, therefore, and those under him, are estopped from controverting it. He built under an ordinance exercising the right of an implied grant, bymaking reservation, in the true spirit of all the former grants of the corporation, and for the same beneficial .purposes. It may further be observed, that by running a line from the extreme south westerly.point of John Murrayls lot, it will not strike the place, for .wharfage at which the plaintiffs insist on a right.
    
      
      Troup and Hamilton, contra.
    The act gave no beneficial interest to the corporation. They were simply trustees, or rather attorneys, to grant to others a right, in consideration of a service or duty performed. This duty was the erecting the pier, and created a consideration for the grant. Therefore, the reserving a portion of the emoluments was so far illegal and void ; for a trustee cannot take to himself, and withhold from his cestui que trust, part of the subject of the trust. Allowing, then, an interest to have passed by implication, it was fiduciary. Then, although the act au- . thorizes them to grant under such restrictions, and within such limits, as they may think proper, still this is no more than a power to regulate the mode and place of enjoyment; for restriction can never signify a right of acquisition. To show how completely the building of the pier was the consideration for the wharfage; whoever did erect was to have the profits; and, on this principle, when made by the corporation, after neglect of the proprietor of the lot, they were, on performing what he was to have done, to step into his place, with a full title to wharfage. We admit we have no right to wharfage in the slip, because the wharf [*547] there was on soil the property of the * corporation, and they might, in that instance, reserve. _ The present reservation is a manifest attempt towards a breach of trust, at the expense of the object for whom it was created. The action is for money had and received; the court, therefore, will recognize all equitable rights which we may have. We cannot be estopped by the ordinance, for we are not parties to it by sealing and signing.
    
      Riggs and Harison, in reply.
    This is a cause in which the public convenience of the city of New York is deeply interested; therefore, the act and grants must be liberally construed, with that object always in view. For public benefit was the reservation of wharfage and slipouge, on the inside of public slips, originally made. This would be entirely defeated by the defendant’s claim; for if he has a right to wharfage on the side of the pier next to the public slip, he will have a right to lay a vessel outside of that, fastened to the pier, and another outside of that, so as to obstruct, if not entirely fill up, the access to the public slip. This shows the necessity of implying by the act a grant to the corporation of the soil under water beyond the 400 feet mentioned in their charter. The construction put on the words “ restrictions,” &c., cannot be correct, for the mode and place of enjoying wharfage rights is, by an express distinct law, under the regulation of the harbor master. In the rights, as expressed by the ordinance, there is an ample consideration for building the piers, for the persons thus doing so, have the emoluments arising from the sides adjoining to private property; as in the present case, those on the northeast side within the basin. This is further proved by the sense of the legislature, expressed in an additional clause when the act of 1798 was re-enacted, previous to which time the proprietors of lots were entitled only to a community of wharfage in front of their properties ; but, by the clause alluded to, the corporation were empowered to grant, under the restrictions we contend for, that community of interest mentioned in the law.
    The counsel seem to forget that a man may be estopped by his actions as well as by his deed. Having no original interest *of his own, Murray acts under [*548] our title, such as it is, and cannot now be allowed to dispute it.
   Livingston, J.

delivered the opinion of the court. This is an action for money had and received by the defendant, as wharfage, for vessels lying in what the plaintiffs call a slip, adjacent to that part of a pier which stands opposite Murray’s wharf. From the form of action the plaintiffs must show a title in them to demand this money. It is, therefore, unnecessary to inquire whether it belongs to the defendant or not. The corporation can have no such right, inasmuch as the land, on which the pier is erected, was never granted to them, nor was the soil under the watei where the vessel lay, for which this wharfage was paid, lío implied grant is contained in the act of the legislature. The corporation are only to grant as attorneys of the public, in case piers are sunk. That this is to be done under certain restrictions and regulations, means, not that they shall have a right to reserve the wharfage to themselves, which is to be theirs only in case of default in the owners of the lots in sinking piers, but that they are to regulate in what manner the right to wharfage shall be enjoyed, liar does the resolve of the common council of the 1st of June, 1801, make a difference. The reservation therein contained, if in an indenture, might have been binding on the defendant; but the corporation having exceeded their powers in making this reservation in a resolve of this kind, it cannot be binding on him. They had no right, in this way, to impose any terms they pleased, or they might arbitrarily have deprived the owners of lots of the right, which the legislature intended they should have, of sinking these piers. It cannot, therefore, be regarded in the light of a contract; for the defendant had a right to make these piers and bridges without thereby sanctioning any terms which might thus be imposed on him. liar can it be said that the corporation not having executed the powers vested in them by the act, the individual has no right to receive the wharfage. This would be to take advantage of their own wropg and neglect; nor does it follow, as has already been observed, that the money belongs to the corporation, if it be admitted that the defendant was wrong in taking it.

*This is no slip, which is an opening between two pieces of land or wharves. ' This pier extends into the Bast River, and is 20 feet from the side of the slip. The grant to John Murray, of May, 1797, is also important, for by this he is entitled to the wharfage of 98, feet.

It is the opinion of the court that the defendant have judgment.

Judgment of nonsuit.  