Furey v. . Town of Gravesend , 104 N.Y. 405 ( 1887 )

Per Curiam.

We are of the opinion that the complaint in' this action, shows no such interest in the lands which are the subject of the dispute, as entitles the plaintiffs to the relief demanded, or the injunction awarded them by the trial court. The judgment rendered there, awarded to the plaintiffs a perpetual injunction, against the town from selling or convey" ing to one William Ziegler, certain lands owned by it.

Eo affirmative relief in respect to such lands was demanded in the complaint, or claimed on the trial, and the entire extent of the plaintiffs’ claim, was an absolute and arbitrary right to prevent the defendant forever, from disposing of the lands in question except to the plaintiffs. There was no question made in the case but that the defendants are the owners in fee of the land in question, and entitled to its possession, nor claim made on the part of the plaintiffs, that they are entitled to its use, enjoyment or possession.

The only foundation for the action rests upon the claim that the plaintiffs have an equitable demand against some one, to be paid the value of certain erections formerly made by them upon the land in question, and which they omitted to remove therefrom, when the term of their tenancy expired. The pleadings seem to found this right, upon the provisions of chapter 458 of the Laws of 1883, which, so far as they affect this controversy, are substantially as follows: “ The care, management and control of the common lands of Gravesend shall be vested in the supervisor of said town and five trustees,” to be chosen as therein specified. It further provides “ that such trustees shall not have power to sell or give title to any lands of the town of Gravesend, or to release or discharge any title or claim of said town thereto, excepting lot numbers 51, 52, 53, 54, 55, 56 and Coney Island Point, which premises are now in possession of lessees of said town.”

The act then proceeds to prescribe the manner in which the lands of said town, other than those excepted, may be disposed of by said town, and as to the excepted lands further enacts as follows : “ But the said supervisor and trustees shall have power and are hereby authorized to sell said lots number fifty-one to fifty-six, inclusive, of said common lands and Coney Island Point, to the present lessees in possession of the same, provided such sale shall be ratified and "confirmed by resolution duly passed at an annual town meeting, or at a special town meeting to be called for the purpose, such sale to be upon the same terms of payment provided for sale of other lands of said town.”

In giving a construction to this act, courts are confined to the language and terms employed by the legislature, and are not at liberty to interpolate phrases and provisions, although otherwise the purpose and intention, of the law making power may seem indefinite, obscure or incomplete.

If they have failed to insert such provisions in the law as will accomplish the result intended, their omission cannot be remedied by construction, and the law must, to that extent, be considered defective and inoperative.

In so far as any duty is enjoined upon, or power and authority conferred by the act upon the town commissioners, there does not seem to be any ambiguity in its provisions, but the particular object intended to be accomplished by the clauses quoted, is left quite obscure and uncertain. Such commissioners are prohibited from selling or conveying any of the common lands of the town except those in question, and did the provision stop here a strong implication would arise that they had power of their own volition to sell these lands to whomsoever they should elect, but the act then proceeds to prescribe the manner in which, and the persons to whom they are authorized to sell and convey.

Ho limitation of time is imposed upon the prohibition, or the exercise of the powers or duties, authorized and enjoined by the act, and, so far as its language is concerned, they would seem to be perpetual and irrevocable. Other provisions relate to the mode of disposing of other lands of Gravesend.

It is in the nature of things that the willingness of the contemplated grantees of these lands to purchase, is a condition precedent to the exercise of any power of sale by the supervisor and trustees, and in the absence of any offers by the lessees to buy, the whole provision must fall to the ground as inoperative and unenforceable.

In this event the lands would remain the property of the town, subject only to the same powers of disposition which apply to its lands generally.

The act operates as a mere license and authority, to the supervisor and trustees to sell and convey such lands according to the prescribed conditions, if they deem it best to do so, but it goes no further. Such board is placed under no obligation to make such sale, but is left entirely at liberty to exercise its discretion upon the subject.

It is quite certain that it could not sell them to the plaintiffs unless they choose to buy, and it is equally certain that the plaintiffs could not acquire either a legal or equitable interest in the lands, under this act until a contract of sale had been perfected between the parties, or the plaintiffs should show some case, entitling them to the exercise of the discretionary power of the commissioners in their favor. The complaint shows no such case. There is no allegation that the town officers have ever refused to sell or convey said lands to the plaintiffs, or that the plaintiffs have ever offered to purchase the same, or even that they have required said town to pay for the improvements made, or that said town has refused to do so, but the right of the plaintiffs seems to be founded upon the operation of the naked statute alone. The effect claimed for the act by the plaintiffs, if it could be upheld, would forever prevent the town from disposing of its land except to the plaintiffs, and would thus practically destroy its power of disposition and the usefulness and value of its property.

Whether any effect can be given to this statute, and if so, what operation it shall have, is a question which it is unnecessary here to discuss. It is enough now to say that the plaintiffs have not, by virtue of its provisions, acquired any interest in the lands in dispute.

A further claim is made by the plaintiffs, founded upon the circumstances under which they became tenants of the town for these lands for the term of ten years from February 1, 1873.

At the annual town meeting of said town in 1871, the electors thereof adopted a resolution in reference to the manner of leasing their town lands, which read substantially as follows:

Resolved, That the common lands of the town of Graves-end, on Coney Island, shall hereafter be let only at public auction on the premises, or at the town liouse in this town to the highest bidder “ on notice specifying the time and place of letting, ’ etc., and “ if any lot be so let to any person other than the last lessee owning improvements on said lot, the new lessee shall pay the former lessee for the value of improvements on the property at the expiration of the old lease,” at a rate to be fixed by arbitration, “ and the above condition shall be specified in the notice above provided for whenever there are improvements on the premises so to be let.”

The plaintiffs claim that this resolution, in connection with the lease subsequently taken by them from the town officers, constituted a covenant on the part of the town for the payment to them, at the- expiration of their lease, of the value of the improvements put by them on such leased premises.

Mo provision for such payment is contained in the lease executed by the town to the plaintiffs; and if any liability exists therefor, it must be such a one as may be implied from the terms of the resolution alone. Mo express provision relating to the subject is inserted therein except that when such lands are leased to one who was not formerly a lessee thereof, the new lessee shall pay the former one a compensation for existing improvements at a rate provided for. Mo absolute liability is assumed thereby by the town except the duty of specifying the new lessee’s liability in the notice to be given for the leasing of the lands. ' This could not be construed as anything more than a covenant, that in the event of a further lease, the town would take measures to cause the new-tenant to pay the former tenant for improvements.

There is no obligation imposed on the town to lease them again, and it is entirely at liberty, under such a covenant, to refuse to lease again and dispose of the lands otherwise according to its discretion Even if any covenant could be implied, it is quite evident that the condition upon which it is made to depend, of a new lease to another party, has never occurred, and no breach of its obligations could have taken place.

■A further difficulty in the way of any claim to an interest in the land, growing out of the resolution of 1871, arises out of the effect of a judgment in an action of ejectment for these lands, brought by the town against these plaintiffs in July 1883, and which resulted in favor of the town in February, 1884, over a year before this action was commenced. This judgment remains unappealed from, and unreversed, and is conclusive against any claim, on the part of the plaintiffs to any right of possession in the lands in question, antedating the rendition of such judgment.

If any right existed in the plaintiffs to retain possession of such lands, to compel the satisfaction by the town of their claim for improvements, or for any other purpose, they were bound to assert it in defense of the action of ejectment, and not having done so, have lost the right to make such a claim in this action.

"W"e" have been unable, from any point of view, to discover any right or interest which the plaintiffs have in the lands in question.

Granting, even, that the statute creates an absolute prohibition upon the supervisor and trustees, from selling and conveying these lands in the manner attempted by the town, it does not follow that the plaintiffs are entitled to invoke its enforcement. The right to enforce such prohibition by action can belong only to a party who has some right or interest in the property, which may be prejudiced by the action of the town.

Whoever may be aggrieved, it is quite clear that the plaintiffs were not residents of the town, and have no interest in the subject of the action which is to be affected thereby.

The order should, therefore, be affirmed.

All concur.

Order affirmed.