
    DAVID C. CARLETON, v. THOMAS DARCY and THE MAYOR, &c., OF N. Y.
    
      lease—how executed by City of New Yorle.—Ejectment—possession sufficient to maintain—when landlord may defend.—Proceedings ' for taking private property, etc.—must be strictly followed—when acts for unconstitutional.
    
    A lease of lands (the title to which the city of New York claims under chapter 246 of Laws of 1839, and chapter 150 of Laws of 1834), purporting to be made by the “mayor, aldermen, etc., acting by the commissioners of the sinking fund,” as lessor, and which is signed by the comptroller with his name and official title, is improperly executed and void.
    It is sufficient to maintain an action of ejectment against the lessee in such a case, that the plaintiff was in actual possession at the time of entry under the lease ; and if in such an action the city be allowed to interpose an answer, it cannot defend, if the relation of landlord and tenant is not shown to exist between it and the defendant. It seems, that in proceedings for the taking of private property under said acts of 1839 and 1834, the supreme court acts as a court of limited jurisdiction, and, to show title thereunder, all the steps prescribed by the statute must be proved to have been taken.
    
      It seems, that unless the legislature have the grounds of the application, showing the necessity and the public use of the lands to be taken, laid before it and incorporated in the act, such act is unconstitutional and void,—e. g., said acts of 1839 and 1834.
    Before Speir and Russell, JJ.
    
      Decided December 6, 1880.
    The plaintiff brings the action in ejectment against the defendant, Darcy, to recover possession of a lot of land in the city of New York, on the north side of One-Hundred-and-Twentieth street, twenty feet in front, by one hundred feet in depth ; the easterly side of the lot being one hundred feet from Third avenue.
    Darcy claimed to be lessee of the city, and the Mayor, Aldermen, &c., on their application, were joined as defendants, and had leave to answer.
    Under the direction of the court, the jury found a verdict for the plaintiff, subject to the opinion of the court at general term.
    Further facts appear in the opinion.
    
      H. B. Philbrook and George F. Betts, for plaintiff, urged:
    I. The plaintiff Carleton having been in possession of the premises at the time of his dispossession by Darcy, that is prima facie evidence that Carlton had the fee in these premises (Day v. Alverson, 9 Wend. 223 ; Smith v. Lorillard, 10 Johns. 338, 356 ; Griffin v. Spencer, 6 Hill, 525 ; 2 Greenl. Ev. § 618 ; Whitney v. Wright, 15 Wend. 171; Christy v. Scott, 14 How. U. S. 282). The possession of Carleton complied with all the requirements of the law. He had the land enclosed by a substantial enclosure (New Code, § 372; Code Pro. § 85 ; 2 R. S. p. 294, § 84). If part of the fence was occasionally down for a few days, it did not destroy the continuousness of the occupancy (Whitney v. Black River Ins. Co., 72 N. Y. 117; Hermann v. Merchants’ Ins. Co. [Super. Ct.], 8 W. Dig. 19).
    II. (a) The mayor, aldermen, &c., cannot set up any defense except through Darcy (2 R. S. 342, § 17 [Edm. Ed. 352] ; Godfrey v. Townsend, 8 How. Pr. 402). Unless the relation of landlord and tenant is shown to exist, the mayor, &e., cannot defend (Jackson v. Stiles, 6 Cow. 594; People v. Webster, 10 Wend. 554). (b) Darcy’s only claim is asa lessee from the mayor, aldermen, &c., and that claim cannot be sustained, for even if the mayor, &c., had title to this property, they held it in trust for public uses, and cannot dispose of it without express power conferred by act of the legislature (Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234; Matter of Boston, &c. R. R. Co. 53 N. Y. 576; St. Vincent Asylum v. City of Troy, 76 N. Y. 108 ; Matter of N. Y. and Brighton R. R. Co., 9 Week. Dig. 387). Bat the act of 1839 does not give any such power. If this was market property (and as such, if at all, the city held it), it could not be leased except on condition that the lessee shall maintain the same “ as and for the purposes of a public market, for at least ten years from and after such lease ” (Act of 1873, ch. 335, § 102). This lease to Darcy contained no such clause. The Board of Commissioners of the Sinking Fund had the only authority to give such a lease, if such power existed (Act of 1873, ch. 335, § 102). But that board has never executed any lease to Darcy, nor is it averred in the answer that they did. The lease does not name them as lessors (Clarke v. Courtney, 5 Pet. 319). The execution of the lease is only individually by “Andrew H. Green” (Kirsted v. The O. & A. R. R. Co., 69 N. Y. 343 ; Orchard v. Binninger, 51 N. Y. 652 ; Sherman v. N. Y. C. R. R. Co., 22 Barb. 239; Coombes Case, 9 Co. R. 75 ; Isham v. Bennington Iron Co., 19 Vt. 230; Brinley v. Mann, 2 Cush. [Mass.] 337. (c) Title in a stranger,- -i. e., the mayor, &c.,—is no defense to Darcy (Christy v. Scott, 14 How. 282 ; Jackson v. Hardee, 4 Johns. 202). The mayor, aldermen and commonalty never assented to or ratified the trespass of Darcy upon Carleton’s possession. The commissioners of sinking fund have no other power than to “sell or lease,” and then “at public auction or by sealed bids,” not to sanction an intrusion (Taylor v. Beebe, 3 Robt. 262 ; In re Carlton St., 16 Hun, 497).
    ITT. Even if the mayor, &c., are admitted tO/defend on the strength of their title, or if Darcy can avail himself of that defense, there is no title nor right of possession shown in them, (a) The city acquired no title under the act of 1839. That act is unconstitutional, as it is not an act providing for taking private property for public use. It contains no recital to that effect. There is no proof substantiating any such intent. It stands as a taking of private property for private use. “ The existence of a necessity for legislative action will not be presumed when the facts which would create it are neither shown by proof nor recited in the statute” (Powers v. Bergen, 6 N. Y. 358; Re Cherry St., 19 Wend. 677; 11 Wend. 148). In Hayward v. Mayor of New York (7 N. Y 314), the act recited the “public use,” and the court treats it as an agreement. And to the same effect is 45 N. Y 234, where the corporations are decided to hold property thus acquired upon the trust to use it for the purpose for which it was acquired. The city is now selling and leasing this property for private use. And there is no averment even in the answer that it was taken for public use. (b) The decree of the supreme court on which the city relies for its title is invalid. The court had no jurisdiction to make such a decree. In this matter it acted as a court of special and limited jurisdiction, and every step prescribed by the statute must be shown to have been taken (2 Cow. & Hill’s Notes, 946; Morse v. Williamson, 35 Barb. 472; Striker v. Kelly, 7 Hill, 9; 2 Den. 323 ; Staples v. Fairchild, 3 N. Y. 41; Brown v. The Mayor, 3 Hun, 685 ; In re Marsh, 71 N. Y. 315). And the recitals in the record are not conclusive evidence of the facts they recite (Bolton v Jacks, 6 Robt. 198; App. Ferguson v. Crawford, 70 N. Y. 253). (1) The court had no jurisdiction, because there was no application to it by the mayor, &c. Such application being acquired by the act, is therefore the necessary basis of jurisdiction (Sharp v. Speir, 4 Hill, 76 ; In re Marsh, 71 N. Y. 315; In re Valentine, 72 N. Y. 184 ; Town of Willsborough v. N. Y. & Canada R. R. Co., 76 N. Y 182). (2) The court had no jurisdiction to make the order of confirmation, because the provisions of the act of 1834 have not been complied with, which require that “ at least fourteen days before making their report to, the court they [the commissioners] shall deposit a true copy or transcript thereof in the clerk’s office of the city of New York, &c., &c. Failure to comply with these provisions is a fatal defect (Cases above cited, and Stanton v. Ellis, 12 N. Y. 575, 579; People v. Sutherland, 8 Week. Dig. 3 ; In re Carlton street [Ct. of Appeals], 9 Week. Dig. 164; In re Burmeister, 76 N. Y. 174; Thompson v. Commissioners, &c. [Ct. of Appeals], 21 Alb. Law J. 15, 16). (d) Title in, or possession by, the parties who are named in the report of the commissioners as owners of the land must be proved before any foundation is laid for the title that the city claims under and through them (Kennedy v. Bogert, 7 Serg. & R. 97). (d) The city acquired no title by adverse possession. Occupancy as a park is not adverse possession, for that is only an -easement, and is not adverse to the fee, but subordinate to it (Anderson v. Lockport & N. F. R. R. Co., 9 How. Pr. 553; De Witt v. Village of Ithaca, 7 Week. Dig. 533 ; Jackson v. Hathaway, 15 Johns. 447; Van Amringe v. Burnett, 8 Bosw. 357 ; People v. Kerr, 27 N. Y. 188 ; Redfield v. Utica & Syracuse R. R. Co.,, 25 Barb. 54). An easement is limited to its prescribed use, and cannot be enlarged beyond that (Prentice v. Geizer, 74 N. Y. 341; 2 Washburn R. E. 308 [52]; Washburn Easem’ts. 185, 186 ; Brooks v. Curtis, 4 Lans. 284). (e) If the city ever had possession of the lot in question, it abandoned that possession, and therefore cannot rely upon it. It was left by the city as open common, except the buildings on the corner of One-Hundred-and-Twentieth street and Third avenue, during the last eight or nine years. Possession is thus shown to have been abandoned by the city (Washburn Easemts. ch. 5, § 5, subd. 9, p. 667 [548] : “ The cesser to use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as a release, without any reference to the time during which such cesser has continued.” 3 Kent Comm. 450 ; Cartwright v. Maplesden, 53 N. Y. 632; Corning v. Gould, 16 Wend. 531; Whitney v. Wright, 15 Wend. 171),
    
      Wm. C. Whitney, counsel to the corporation, and T. B. Clarkson, assistant to corporation counsel, for the mayor, &c., among other things, urged:
    
      I. (a) The land must be deemed to have been taken for public purposes, although neither the act nor the report says anything on that subject—nor even as to what use was to be made of the land (Mills Eminent Domain., §§ 10, 11). (5) The report of the commissioners (in a proceeding to take private property for public use as a street) is a judgment, and conclusive as to all questions litigated, or which might have been litigated therein (Dolan v. Mayor, 62 N. Y. 472; Matter of Arnold, 60 Id. 26-28; Embury v. Conner, 3 Id. 511-522, 528). (c) The parties whose land was taken had their day in court; but there was no objection by anybody on the ground that .the property was not taken for a public use. (d) The evidence in the case shows that the land was, in fact, devoted to public uses during all the time we can get any accurate account of its history since the city acquired it. It was used to build thereon a public market and engine houses, and was used as a public park. There is testimony covering almost the whole time from the time the city acquired it down to 1869, and all the uses of it by the city were public uses, and no use other than a public use on the part of the city has been shown, (e) The mere fact that the legislature authorized the corporation of the city of Hew York to take the property was a declaration that the property was to be taken for public purposes. The city could not take it for any other purpose. It was not authorized to do so. It could not hold the property merely for private gain (Dillon on Municipal 
      
      Corporations [2 ed. § 64] ; City of Chicago v. Halsey, 25 Ill. 595 ; Merwin v. City of Chicago, 45 Id. 133 ; Darlington v. Mayor, 31 N. Y. 164-197). (f) Every . presumption is to be taken in favor of the regularity of the proceedings. We are not bound to prove that the court had jurisdiction, and that its proceedings were regular. It would have been sufficient if the defendants had, in the first place, given in evidence the report of the commissioners and the order of confirmation. Then it would have been incumbent on plaintiff to prove, affirmatively, that the court did not have jurisdiction, had not acquired jurisdiction (Embury v. Conner, 3 N. Y. 511 ; Matter of Arnold, 60 Id. 26-28 ; Dolan v. Mayor, 62 Id. 472-5). And if the application for the appointment of commissioners, and the order appointing them, are not now to be found, yet, in the face of the order of the court, made thirty years ago, when the whole matter was fresh, this court cannot ' how say that they never did exist (Potter v. Merchant’s Bank, 28 N. Y. 641).
    II. The defendants, the mayor, &c., having shown a perfect title in fee, and undisputed possession down to 1869, the other defendant, Darcy, can stand on their title. If Darcy admits the validity of the contract between him and the corporation, and the sufficiency of its execution, the plaintiff cannot question it. His (plaintiff’s) right does not depend on the validity of that contract. He' must stand on the strength of his own case, not on the weakness of that of the defendants (2 Greenl. Ev. [13 ed.] § 331). Besides, if the contract in' writing .was insufficient, Darcy was a tenant at will or by sufferance—tenant at all events by the consent of himself and the owner of the fee—and entitled to stand on the landlord’s rights.
   By the Court.—Speir, J.

It appears from the case that the plaintiff, in June, 1876,- was in actual possession of the lot in question, and had been since the preceding September, having it enclosed with a board fence with all the others included in the square bounded by One-Hundred-and-Twentieth street, Third avenue, One-Hundred-and-Twenty-first street and Sylvan place, except a plot in Third avenue one hundred feet in depth on One-Hundred-and-Twentieth street—being the south-east portion of the square. He had leased portions of this square to tenants, collected rents from them, erected buildings on different parts of the property, and asserted ownership to all the property so enclosed.

The testimony of the witnesses shows that the fence was occasionally taken down by persons in the neighborhood for short periods of time, still it is plain from all the evidence that the occupation was a continued one, and that the buildings were erected by the plaintiff under permits obtained from the city.

The action is brought against Darcy alone, who claims title as lessee from the mayor, aldermen, &c., who by the court were permitted to put in an amended answer to the complaint, and cannot therefore set up any defense except through Darcy. He had no title nor right to possession. Unless the relation of landlord and tenant is shown to exist between them, the mayor, &c., cannot defend the suit.

The main question in the case is, did that relation exist %

It is claimed by the defense that the city acquired title to a certain tract of land of which the land in controversy is a part under the act of 1839, chapter 246. This act declared that the corporation should become ' vested with the title to said tract by like’ proceedings as were prescribed by the laws of 1834, chapter 150, excepting the first and twentieth sections of that act.

Passing for the present that the act makes no provision for taking property for public use, and is therefore unconstitutional, I am of the opinion that the city’s counsel have wholly failed to prove by their witnesses and the proceedings taken from the files of the court, that the city became and were seized in fee simple absolute of all the land described in the act. Assuming that the act conferred the power to take the steps claimed by the defendant, the decree pronounced by the supreme court was invalid.

In this matter the court had only a special and limited jurisdiction, and in such cases it is well settled that all its proceedings are of no avail unless every step prescribed by the statute is proved to have been taken. Unless a court has jurisdiction it can never make a record which imports incontrovertible verity to the party over whom it has usurped jurisdiction (Starbuck v. Murray, 5 Wend. 158). No court or officer can acquire jurisdiction by the mere assertion of it (People v. Cassels, 5 Hill, 165).

The act of 1834, chapter 150, section 2, prescribes that the proceedings are to be commenced “on application of the mayor, aldermen and commonalty to the supreme court; that the court or one of the justices to whom such application is made, shall appoint three disinterested persons, &c.” It is plain that such application is the foundation of the limited jurisdiction conferred, and there is no proof that any such application was made by the mayor, &c. The provisions of the act of 1834 were not complied with in the necessary steps to . be taken in the confirmation of the commissioners’ report to the court, and failure to comply with these provisions was a fatal defect. In Matter of City of Buffalo (78 N. Y. 362), it is held that where power "is delegated by the legislature to a municipal corporation to take the property of the citizen in inmlum, all the prescribed prerequisites to the exercise of that power must be strictly observed and conformed to. In other words, it cannot be presumed that these requirements have been met—the corporation must be able to show it. The answer sets up a lease dated April 3, 1876, which is put in evidence by the defendant, between the mayor, &c., acting by the commissioners of the sinking fund, and the defendant, Darcy, under which he claimed title. This lease is executed by Andrew H. Green, and not by the board of commissioners of the sinking fund,, nor by the mayor, aider-men, &c. This lease has no validity and confers no title upon Darcy. It was not executed by the commissioners of the sinking fund, who appear upon the face of the lease to be acting as the agent of the city. Besides, Green, as an individual or as comptroller, had no authority to execute the lease.

The plaintiff, as we have seen, was in actual possession of the premises. This was enough to enable him to recover it from Darcy, a mere trespasser, who entered without any title. The plaintiff recovers on the strength of his own title and not on the weakness of the defendant’s title, which is a rule applicable to all actions for the recovery of property (Christy v. Scott, 14 How. U. S. 392).

But it seems clear to us that the city acquired no title under the act of 1839, or the act of 1834, to which it refers, as no provision is made for taking private property for public use. There is nothing appearing upon the face of these statutes, or by the case, showing what facts existed to justify the legislature in enacting them, and thereby assuming to authorize the sale of the lands mentioned in them. If any necessity existed for the action of the legislature, the proofs are not furnished us, nor are they recited in the statutes. It is not claimed that the city used more than two or three lots of the whole square for a market, engine and hose companies, prior to 1862 or 1863, upwards of twenty years after the act was passed, or that it was used as a square more than six or seven years. In April, 1876, it undertook to lease the lot in controversy for private use. I am of the opinion that unless the legislature have the grounds of the application laid before it, showing the necessity and the public use of the land to be taken by the city, and incorporated in the act itself, the act is unconstitutional and void. Without these prerequisites, it is simply a transfer of one man’s property to another without the consent of the owner, and though compensation be made when adjudged by the court, it makes no difference whether the transfer is made to an individual or a municipal corporation.

The legislature is asked to convey lands to the city in fee simple absolute. If this can be done without disclosing the public use, there is no restraint upon legislative power, and without this the legislature is absolute and can act independent of the restraints of the constitution.

Judgment should be entered for the plaintiff upon the verdict.

Russell, J., concurred.  