
    The Trustees of Union College of the Town of Schenectady, in the State of New York, Respondent, v. The City of New York, Appellant.
    
      Condition subsequent—Mile not divested by a breach — a failure to build for iwentypve yea> s is unreasonable—judicial notíce of location and population—estoppel by acquiescence—re-entry or demand of possession is not necessary—damages on recovering—offset of public charges.
    
    The following clause contained in a deed of a plot of land to Long Island City: “Said plot of land is to be used by said Long Island City for the purpose of building a city hall thereon, and this conveyance is made upon the express condition that in case the said plot of ground above described shall ever cease to be used by said Long Island City for a city hall, or other similar city buildings, then, and in that case, the said plot of land shall revert back to the parties hereto of the first part as if this conveyance had not been made,” creates a condition subsequent, and as the deed is silent as to the time of performance the law will require performance to be made within a reasonable time.
    The breach of the condition will not divest the title but confers upon the grantor a right to re-enter.
    The unexplained failure of the city to build an administration building within twenty-five years after the acceptance of the deed is unreasonable and will work a breach of the condition.
    The court can take j udicial notice of the fact that the land was situated within the city limits at the time the deed was executed, and also of the population of the city, from time to time, according to the census.
    Evidence that a reasonable time for the performance of the condition did not exceed ten years and that from that time until the commencement of the action the grantor had stood silent and failed to assert its right of re-entry, and that during this period the land had escaped taxation and assessments for local improvements thereon to the amount of §7,000 had been paid for by the city, does not estop the grantor from maintaining the action.
    No proof of actual entry or demand of possession is necessary to entitle the grantor to commence the action.
    In such an action the grantor, if successful, is entitled to recover as damages the rents and profits of the land from the time of the commencement of the action to the time of the trial, or the value of the use and occupation of the land during that time.
    
      Semble, that if the rental value of the land is taken as the basis for the computation of damages, the public charges upon the land for that period may be offset against such rental value.
    Appeal by the defendant, The City of New York, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of November, 1900, upon the decision of the court rendered after a trial at the Queens County Trial Term before the court without a jury-
    
      William J. Carr, for the appellant.
    
      Percy S. Dudley, for the respondent.
   Jenks, J.:

This action was begun in October, 1898, to recover certain land upon breach of a condition. The land was conveyed in 1873 by the respondent to Long Island City, the predecessor of the appellant. After the description, the deed contained this clause: “ Said plot of land is to be used by said Long Island City for the purpose of building a city hall thereon, and this conveyance is made upon the express condition that in case the said plot of ground above described shall ever cease to be used by said Long Island City for a city hall, or other similar city buildings, then, and in that case, the said plot of land shall revert back to the parties hereto of the first part as if this conveyance had not been made.” At the trial it was admitted that there was no building upon the land, and that none had ever been placed thereon. It appeared that early in 1898 steps had been taken as far as the approval of a recommendation by the board of public improvements of the defendant, transmission of such approval to the board of estimate and apportionment, and a reference by that board to one of its members for investigation and report.

I think that the condition of the deed was subsequent. In Nicoll v. New York & Erie R. R. Co. (12 N. Y. 121, 130) it was said: “ Whether a condition be one or the other (i. e., precedent or subsequent) is matter of construction and depends upon the intention of the party creating the estate. (4 Kent, 124; 1 Term R. 645 ; 2 Bos. & Pull. 295; 3 Peters’ U. S. R. 346.) In the latter case Marshall, Oh. J., said: ‘ If the act (on which the estate depends) does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole instrument, the condition is subsequent.’ ” (See, too, Underhill v. Saratoga & Washington Railroad Co., 20 Barb. 455, 459; Towle v. Remsen, 70 N. Y. 303, 311.) And though no precise technical words are necessary to make a condition subsequent or precedent, yet it is significant that this conveyance is made upon the express condition that in case the said plot of ground above described shall ever cease to be used by said Long Island City for a city hall,” etc., for the reason that, in the language of Vann, J., in Graves v. Deterling (120 N. Y. 447, 457), “ for time out of mind, conditions have usually been preceded by such words as proviso, ita quod, and sub conditione, or their modern equivalents.” In Upington v. Corrigan (151 N. Y. 143) the premises were conveyed for a nominal consideration with this Tiabendum clause and condition: To have and to hold * * * unto the said party of the second part, his heirs and assigns * * * upon the conditions following, to wit: That said party of the second part shall consecrate or cause to be consecrated, the said property for the purpose of erecting a church building, and shall within a reasonable time erect or cause to be erected such building.” The court, per Gray, J., held this a condition subsequent. Possession and domination of the land must of necessity accompany and precede the building of a city hall or any public building, the grant is made in presentí, and not to take effect on the happening of a certain event.” (Nicoll v. New York & Erie R. R. Co., supra; 2 Washb. Real Prop. [5th ed.] 3.) A conveyance of property may be made for a public use subject to a forfeiture of the title for a breach of the condition of the deed. (Rose v. Hawley, 118 N. Y. 502; S. C., 141 id. 366; Clarke v. Inhabitants of Town of Brookfield, 81 Mo. 503, 514.)

The deed is silent as to the time of performance, but the law will imply that performance must be within a reasonable time. (Washb. Real Prop., supra, 12; Stuyvesant v. Mayor, 11 Paige, 414; Hayden v. Stoughton, 5 Pick. 528; Allen v. Howe, 105 Mass. 241.) The neglect for twenty-five years was held by the court (Gaynor, J., presiding) to work a breach of the condition ; so the first question presented is whether the Special Term was right in this determination. The city was ready to take the conveyance, whose purpose was to provide a site of a building for the city’s business. Such a structure might almost be classed as a municipal need arising at the beginning of the city’s life, and not within the cate gory of public institutions such as libraries, parks or public gardens, which are the marks of municipal maturity. No good reason suggests itself why it could not begin to build an administration building within twenty-five years of its acceptance, and no reason is suggested by the appellant for such inaction. In Stuyvesant v. Mayor (supra) the plaintiff granted lands to the defendant in 1836 upon the condition that they should be used as a public square, and that the defendant should immediately proceed to regulate the surrounding grounds and inclose the square with railings, and to plant and improve the inclosure. The defendant did none of these things in a period of a little less than three years, and the chancellor held that the lapse was a breach of the condition subsequent. In Hayden v. Stoughton (supra) there was a devise to a town for the purpose of building a schoolhouse. In 1806 the people voted to .accept the land and then did nothing for twenty years. Putnam, J., speaking for the court, says'. “And the party entitled to have the-estate upon a forfeiture is not to be bound by the mere will and pleasure of the devisees as to the time or manner of performing the condition, for that would in effect destroy the condition.. They might never perform it. The devisees are, therefore, to perform in a reasonable, viz., a convenient time — ‘ according to the-nature of the thing to be done.’ (Com. Dig. Condition, G 5.) * * * They have omitted to do, in that long period of time,, what might have been done in a month as well as in a century. It-seems to us that they have not conformed to the manifest intention of the testator. They have forfeited the estate.” In Upington v. Corrigan, (supra) the words “ within a reasonable time ” (this being but an expression of what the law would imply) were inserted in the condition. Twenty-nine years elapsed, and the court held that it might take judicial notice of the fact that such period of non-compliance was unreasonable.

The appellant did not offer any evidence to show or tending to show that the lapse was not unreasonable, but the able and learned counsel for the appellant argues that as at the time of the conveyance the land was unimproved farm land, surely the parties would, not have intended that a city hall should be built until the land became adapted for that purpose. But there is no testimony offered to show that the land remained unimproved farm land, while it does-appear that at the time of conveyance the land was situate in an incorporated city, and that shortly thereafter, in 1874, the city proceeded under legislative authority to improve the land, and lands in the vicinity, by opening sewers and streets and by grading and flagging the latter. It cannot, therefore, be presumed that the land remained unimproved agricultural land inasmuch as it was marked by the improvements which characterize city lots. The court can take judicial notice of the existence of this municipality in which the land is situate (Chapman v. Wilber, 6 Hill, 475), and that the population of that city, according to the census, grew from 1875 to 1892 from 15,587 to 35,745 people, and from 1892 to 1900 from 35,745 to 52,540 people. (Mertz v. City of Brooklyn, 33 N. Y. St. Repr. 577.) It may fairly be argued on the other hand that the grantor thought that the building of a city hall or a similar building on the land would stimulate the development and the growth of the municipality, and particularly in the vicinity of the city’s capítol.

The learned counsel for the corporation, stating that the learned Special Term found that the reasonable time did not exceed ten years, contends that it therefore was the duty of the respondent to plead the breach, and assert the right of re-entry on the lapse of that period, and that inasmuch as they had a right to waive the breach, their failure to assert the right of re-entry has estopped them between the end of the ten years and the time of the beginning ■of this suit. And he points out that the local improvements made shortly aftér the conveyance were ultimately paid for by me city to the amount of $7,000, and that during the period subsequent to the lapse of ten years, the land escaped taxation, as the title vested in Long Island City for public purposes, and thus the defendant was misled and deprived of a part of its revenues, while on the other hand a reverter now gives the land to the plaintiff freed from the burden of taxation from that time. The learned counsel cites this rule from 2 Pomeroy’s Equity Jurisprudence (281, 282): “ Acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. The requisites of such •estoppel have been described. A fraudulent intention to deceive or mislead is not essential. All instances of this class in equity, rest upon the principle: ‘ If one maintain silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent.’ A most important application includes all cases where an owner of property, A., stands by and knowingly permits another person, B., to deal with the property as though it were his or as though he were rightfully dealing with it without interposing any objection,” etc. But the property was not owned by the plaintiffs, it was vested in the defendant in fee, subject to revert upon a breach of the condition subsequent, and if it escaped taxation, it owed its immunity to the fact that the grantee was a municipal corporation, not to any act or omission of the plaintiffs subsequent to the conveyance. In Rowell v. Jewett (71 Maine, 408) the grantee paid out money in order to relieve the land from liability therefor, and the court held that the grantee forfeited his estace none the less, saying that the estate reverted to the grantor as a matter of legal right, and if he saw fit to enter for a breach of condition and to claim a forfeiture, the estate vests in him to all intents and purposes without regard to the outlays, which the conditional grantee may have made on account of it. Further, the mere breach of the condition did not divest the title; the grantor might not assert its right, which was a mere right in action. (Berenbroick v. St. Luke's Hospital, 23 App. Div. 339 ; appeal dismissed, 155 N. Y. 655 ; Gerard Real Est. [4th ed.] 116, 829, 830.) No proof of actual entry or demand of possession was necessary before the commencement of the action. (Plumb v. Tubbs, 41N. Y. 442, 450.) At most, then, the plaintiff stood silent and refrained from beginning his action, although the defendant did not build or begin to build any public building upon the land. Washburn on Real Property (vol. 2 [5th ed.], 20) lays down the rule that a forfeiture may be saved though a condition be broken, by waiver, which may be established by acts as well as by express agreement. But he also lays down the rule that a mere silent acquiescence in or parol assent to an act which has constituted a breach of an express condition in a deed, would not amount to a waiver of a right of forfeiture for such breach. In Jackson ex dem. Bronck v. Crysler (1 Johns. Oas. 125) the court said : “ No parol assent or silent acquiescence can destroy the effect of an express condition contained in a deed.” In Gray v. Blanchard (8 Pick. 283) it was held that a mere indulgence is never to be construed into a waiver of a breach of condition, citing authorities. The breach was not the result of an act, but of inaction. The decisions which have determined a waiver may be discriminated. In Ludlow v. N. Y. & H. R. R. Co. (12 Barb. 440) the plaintiff for two years after the forfeiture, saw the defendant making large expenditures upon the premises and extending its road so that he knew that his entry would disjoint the line of the defendant. In Cook v. Wardens & Vestry of St. Paul's Church (67 N. Y. 594) the plaintiff permitted the defendant to repair, joined in effecting a sale of a part of the premises, and joined in the use of the premises. In Rose v. Hawley (supra) the court discuss the lapse of time, but do not pass upon it, while on the second trial (141 N. Y. 366, 378) the court call attention to the fact that there was an encroachment by a building upon the premises, known to the plaintiff for twenty years.

The judgment also awards $3,330 damages based upon the rental value of the lands from the time the action was begun until the trial thereof. There can be no question as to the amount of the damages, for it was admitted on the trial that the value of the use and occupation of the premises was $1,600 a year, and the time intervening the beginning of the action and the trial was two years and one month. But the learned counsel for the appellant contends that the award was unsupported by any proof or finding. He insists that no proof was offered to show that the defendant was in possession of the property at the time of trial or for the period covered by the award of damages. It is said that the land was vacant; that no proof was offered to show actual possession ; that the complaint simply alleges that the defendant was in possession and that the court so found, and that the mere claim to right of possession — a constructive possession — does not constitute an ouster as against the legal title, and cannot sustain any award of damages. The 7th paragraph of the complaint is: “That the defendant, The City of New York, is now in possession of the said premises, or claims to be entitled to the possession thereof, as successor, by virtue of law, of the said Long Island City, the grantee named in the said deed of conveyance.” I think that the allegation was thus pleaded in the alternative in order to meet the fact that Long Island Gity was consolidated with the city of New York. This allegation was not denied, while it was denied that the plaintiff was entitled to the possession as alleged in the 8th paragraph of the complaint. It, therefore, would seem that the defendant is precluded now from insisting that the plaintiff has been in possession of the land since 1883. The conveyance had vested the defendant with the title, and until entry or its equivalent, the right of the plaintiffs, based upon a breach of the condition subsequent, was but a right of action, which they might. have foregone. (Authorities supra.) It is now well settled that if the plaintiff in such an action has judgment of title in him, the damages incidental under his demand for continuing to hold the realty after the bringing of the action to the time of the trial include the rents and profits, or the value of the use and occupation of the land. (Clason v. Baldwin, 129 N. Y. 183; Danziger v. Boyd, 120 id. 628.) The rental value is a fair measure; the use and occupation is that which the owner might have had if he had remained in possession, and, therefore, the question is not affected by what actual use and occupation the defendant made or omitted to make. ( Wallace v. Berdell, 101 N. Y. 13, 16.) It is true that if the plaintiffs had been in possession of the land for the period taken as the basis for the computation of damages, it must be presumed that the rental value of the land would have been diminished by the public charges thereon; and, therefore, the damages must suffer such necessary diminution. (Wallace v. Berdell, supra.) But the question was not raised at the trial and could not be, inasmuch as the city held the premises as public lands.

The judgment should be affirmed, with costs.

Goodrich, P. J., Bartlett, Woodward and Sewell, JJ., concurred.

Judgment affirmed, with costs.  