Dissenting opinion, per RAPALLO, J.

RAPALLO, J., read a dissenting opinion, maintaining that the assignment of the judgment, having been intended by Malcolm for the benefit of Garvey, and Roach with knowledge of this, having procured it to be made to himself, by representing to Malcolm that he, Roach, came from Garvey, and was acting for his benefit, and the assignment having thus been delivered to and received by Roach, in the assumed character of Garvey's representative, Roach, in fact, received it as trustee for Garvey.

That Garvey had the right to affirm this trust, and claim the benefit of it, though created without his previous authority, knowledge, or privity.

And that the title having passed by a perfect assignment, the trust could be enforced, though voluntary. (4 Kent Com., 307; 4 Johns. Ch., 136; 1 Johns. Cas., 205; 1 Johns. Ch., 119, 473; 3 Johns. Ch., 261; 5 Hill, 586; Bill v. Cureton, 2 M. & K., 510; Petre v. Epinasse, 2 M. & K., 496; Adams Eq., 31; 11 Wend., 249, 250.)

That the maxim "Omnis ratihabitio retroharitur, et mandato equiparatur," was applicable to this case. (Dunlap's Paley on Agy. 324; Broom's Leg. Max., 835; 6 M. & Gr., 242; 4 Exch. R., 798, 799.)

That to entitle Garvey to adopt and enforce the trust, it was not necessary, either that he should have had any previous title or right to the property, or that any relation should have previously existed between him and Roach, by virtue whereof Roach owed a duty to Garvey, other than that which sprang out of the transaction itself, citing Mar riot v. Marriot (1 Stra., 666, 673); 1 Phil. Ch., 133, 145; 5 Beavan, 469; 9 Ves., 516; 3 Ves., 155; 7 Sim., 644; 3 My. & Cr., 229; 11 Ves., 638; Sweet v. Jacocks (6 Paige, 359); 1 Ball & Beatty, 409; Story Eq., § 256, 781.

That Roach could not be permitted to set up his own. fraudulent intent to appropriate the property to himself, in negation of the trust in favor of Garvey, which he ostensibly assumed, and by assuming which he obtained the assignment. That Garvey's rights were, therefore, the same as if Roach

46 318 117 234

Statement of case.

had actually intended, at the time he took the assignment, to hold it for Garvey's benefit. He actually took it for Garvey, notwithstanding any secret intent he may have had to defraud

him.

That Garvey could not be deprived of his right to affirm the trust, by any subsequent dealing between Malcolm and Roach, to which he was not a party. (4 J. Ch., 136; 1 How., 476; 2 M. & K., 496; 3 M. & K., 36, 43; 5 Hill, 585, 586.)

For affirmance, Ch. J. ALLEN, GROVER and FOLger, JJ.; for reversal, RAPALLO and PECKHAM, JJ.

Judgment affirmed.

CHRISTIAN DETMOLD, Respondent, v. P. H. DRAKE and
DEMAS BARNES, Appellants.

The provision of section 178, of the "act to reduce several laws relating
particularly to the city of New York into one act" (Revised Laws of
1813, chap. 86, Davies' Laws of N. Y., 534), which declares that upon
the confirmation of the report of the commissioners of estimate and
assessment, the mayor, etc., shall be seized in fee of the lands required
for the opening or widening of streets, and the provision of section 181,
of the same act, which declares all leases of lands thus taken void after
such confirmation, is so modified by the provisions of chapter 210, Laws
of 1818, which authorizes the city to suspend the opening, etc., of any
street for a period not exceeding fifteen months, that the title of the city
does not become absolute, until the corporation takes possession, or until
the time fixed for the suspension of the work, or the fifteen months
expires, and until the title of the owner is thus fully divested, he can
recover for the use and occupation of the premises.
Under the construction thus given, these statutes are constitutional, at
least, the owner has the right to waive the constitutional objection, and
accept the use of the premises, as a compensation for the postponement
of the payment of the amount awarded to him, and no one else can
complain.

(Submitted May 22th, 1871; decided November 10th, 1871.)

APPEAL from a judgment of the General Term of the New York Common Pleas, affirming a judgment entered upon the report of a referee in favor of plaintiff.

Statement of case.

Action for use and occupation of a store in the city of New York, for a quarter ending in May, 1868.

The plaintiff, by lease dated March 8th, 1866, demised to the defendants the store and lot No. 105 Liberty street, New York, for five years from May 1st, 1866, at the annual rent of $5,000, payable on the usual quarter days.

"And in case

The lease contained the following clause: the city of New York shall take statutory proceedings, for the opening of any new street through the block in which said premises are situated, and shall require and take for such purpose the whole or any part of said premises, then upon confirmation of the report of the commissioners appointed in said proceedings, this lease shall become null and void, and the term and letting herein named shall, thereupon, cease and determine."

The defendants entered under this lease, and continued in possession until after the commencement of this action.

They paid rent regularly up to and including the quarterly payment, which fell due February 1st, 1868.

The report of the commissioners appointed in the proceedings to extend Church street, was confirmed by the Supreme Court at General Term, December 31st, 1867; proceedings being taken under the act of 1813, ch. 86, § 177, seq. Defendants paid the February quarter's rent, without knowing that the assessment had been confirmed.

The greater part of the premises in question was taken for the street; a strip on the westerly side, about five feet wide in front, and two feet wide in the rear, by the whole depth of the lot, being left unappropriated.

No steps whatever were taken by the city authorities, to assume possession of the premises before commencement of

this suit.

Previous to the commencement of this action, the city had never demanded possession of the premises, nor had the plaintiff received his award, although he had demanded it.

The city has never claimed rent either from the plaintiff or the defendants.

Statement of case.

The defendants refused to pay the full rent May 1st, 1869, but tendered $181, as the proportionate amount due for the strip not taken for the street. This was refused, and this suit was commenced to recover the full quarter's rent due that day.

The action was commenced in the Common Pleas, New York, May 27th, 1868.

E. L. Fancher, for appellant. The fee passes to the city upon confirmation of the report. (Davies' Laws of N. Y., p. 529, 534, 538; Laws of 1813, ch. 86, § 178; Valentine's Laws, p. 1198; Hoffman's Treatise on the Corporation, p. 289; The People v. Kerr, 27 N. Y. Rep., 196, 197, 211; Hoffman's Treatise, 289; Heyward v. The Mayor, etc., 7 N. Y., 319; Matter of Seventeenth street, 1 Wend., 262; Drake v. Hudson River R. R. Co., 7 Barb., 508; Williams v. N. Y. C. R. R. Co., 16 N. Y., 101; Knox v. Mayor, etc., of N. Y., 38 How. Pr. Rep., 72.) No interest or right is left in the persons from whom the lands are taken. (The People v. Kerr, 27 N. Y., 196, 211; Heywood v. The Mayor, 3 Seld., 314.) The right of plaintiff to the rent went with the title. (Washburn on Real Prop., 337; 1 Greenleaf Crim. Dig., 822; Birch v. Wright, 13 R., 378; Demarest v. Willard, 8 Cow., 206; Bruden v. Thayer, 3 Met., 76; Peck v. Northrup, 17 Conn., 217; Van Wicklen v. Paulson, 14 Barb., 654; Nelles v. Lathrop, 22 Wend., 123.) Tenant may show the landlord's title has been extinguished. (Despard v. Walbridge, 5 N. Y., 378; Jackson v. Rowland, 6 Wend., 670.) The statute terminates the lease, and an apportionment of rent is allowed as a damage to the landlord. (Gillespie v. Thomas, 15 Wend., 464; Astor v. Hoyt, 5 Wend., 603; Matter of Albany street, 11 Wend., 609; Matter of William street, 19 Wend.; Gillespie v. Mayor, etc., of N. Y., 23 Wend., 643.) It is not necessary that the property taken should be paid for before appropriation. (Bloodgood v. M. and H. R. R. Co., 18 Wend., 9; Townsend v. M. C. and B. Co., Ct. of Appeals, N. Y. Transcript, 9 Jan., 10, 1869;

Opinion of the Court, per PECKHAM, J.

Rogers v. Bradshaw, 21 John., 744; Calking v. Baldwin, 4 Wend., 667; Case v. Thompson, 6 Wend., 634; Rexford v. Knight, 11 N. Y., 308.)

G. D. F. Lord, for respondent. The title of the premises remains in plaintiff, until possession is required for public use. (Constitution, art. 1, § 6; Matter of Albany street, 11 Wend., 149, 1834; Embury v. Connor, 3 Comst., 511, 1850; Matter of John and Cherry streets, 19 W., 659; Bloodgood v. M. R. R. Co., 18 Wend., 59; Fletcher on Trustees, 49, 50; Lewin on Trustees, 234; Embury v. Conover, 3 Com., 511; Matter of Albany street, 11 Wend., 149.)

By the Court-PECKHAM, J. By the terms of the lease between these parties, it terminated and became void, upon confirmation of the report of the commissioners of assessment, in opening the new street. But the defendants continued to occupy the premises up to and after the first of said May, under an arrangement, that they would pay the rent if they were liable.

The statute of 1813, under which this street was widened, provides, that upon the confirmation of the report of the commissioners of estimate and assessment by the court, the mayor, aldermen, etc., of New York shall be seized in fee of the lands, etc., in the report mentioned, required for widening the street. (Davies' Laws of New York, 534.)

The act also makes all provisions of a lease thereafter void (§ 181, p. 537), and requires the city to pay the assessment. within four months thereafter. (Id., 538, § 183.)

The act of 1818 authorizes the city to suspend the opening, etc., of any street for such time as it thinks proper, not exceeding fifteen months in the whole, after the confirmation of the commissioners' report, and that the city shall not be required to pay any assessment for such opening, etc., "until the expiration of four months after the expiration of the time or times, which may be appointed by it for carrying said improvements into effect." (Laws of 1818, p. 196.)