slip about 20 feet between the piers would not | pier was excepted to by plaintiff and raises be wide enough for ordinary commercial uses the question of law to be determined upon and any substantial use of the south side of this appeal. a pier erected at the foot of Forty-Third street would be impossible while the said pier to the south continues on its present site, and by reason of the construction of that pier by the defendants and the acts of the defendants above set forth the plaintiff's rights to maintain the pier at West Forty-Third street were taken away and destroyed in the month of October, 1905. In April, 1892, negotiations were had between the parties to this action for the purchase of the pier rights of the ice company, but were not consummated. In 1894, the city commenced proceedings to condemn the lands under water to the south of the pier in prep aration for the work of improving the water front at that point and bulkhead wall along the line established in 1871. In 1898, negotiations again were entered into between the parties for the purchase of the pier rights claimed by the plaintiff, but again failed of consummation. In 1900, the city brought a proceeding to condemn the pier rights in question but the same has not been completed. The trial justice at the beginning of the trial, after having heard counsel and considered their views upon briefs filed, ruled that the plaintiff's rights were restricted to a pier of the dimensions of the original pier. The court said: "The court now states that neither counsel need give more attention to a pier extended 300 feet, because in conformity with the court's previous opinion the court will hold that the plaintiff's rights are restricted to a 212-foot pier, and the plaintiff is to have an exception so that that question can go up on appeal.' [1] Counsel for respondents argues that the only authority vested in the mayor and clerk and the common council by the resolution of the commissioners of the sinking fund of November 11, 1852, was to execute a deed to Lindsley conveying to him the pier at the foot of West Forty-Third street with the extent of the pier's width of said street; that the mayor was not authorized to execute a deed which contained the provision requiring the grantee upon notice to extend the pier conveyed to him, and said conveyance in so far as it assumed to convey such right is void. The argument of counsel is based upon the powers of the commissioners of the sinking fund under the ordinance of the common council adopted February 22, 1844, which regulated the powers of the commissioners of the sinking fund, and which ordinance was confirmed by chapter 225, Laws of 1845. The ordinance in question does not appear in full in the findings or as an exhibit in the record, and the trial justice found: "The grant to Lindsley, November 11, 1852, was not made after a compliance with the provi22, 1844, nor did the alleged grant contain the sion of the sinking fund ordinance of February usual covenants specified in said ordinance." In the absence of the ordinance, recourse must be had to findings, which disclose the substance of the ordinance of 1844, referred to, so far as covenants are concerned. The eleventh finding of fact signed by the trial justice is as follows: "On February 22, 1844, an ordinance was passed by the common council of the city of New York regulating the powers of the commissioners of the sinking fund, which, among other things, provided that all grants made by virtue of said ordinance should contain the usual covenants, including those in relation to streets or avenues passing through them, and also in relation to bulkheads and wharfage." In finding No. 15, which had reference to two deeds made to Lindsley in 1850, the land under water between Forty-Second and Forty-Third streets, the trial justice found the finding No. 17, found that the said deeds contained the usual covenants referred to in the sinking fund ordinance, and he then proceeds to state the substance of the "usual covenants" referred to in the ordinance as follows: The trial justice thereupon found as conclusions of law that the plaintiff was entitled to construct and maintain a pier at the foot of West Forty-Third street, beginning at the existing bulkhead line laid out by the de partment of docks and commissioners of the sinking fund in 1871, extending westerly into the waters of the Hudson river 211 feet and 3 inches and in width 40 feet, also to the use of the remaining 19 feet 7 inches of the width of Forty-Third street, at said bulk-making and recording of said deeds, and, in head line and to collect and receive the wharfage, emoluments, and revenues accruing or to accrue therefrom; that by reason of the acts of the defendants as set forth in the stipulation of facts, which are embodied in the findings, the plaintiff as the owner of the rights described in the foregoing conclusion has sustained damages in the sum of $24,619, being the value of such rights acquired, described, taken, and destroyed by the defendant in October, 1905, and upon payment of such damages the condemnation proceedings shall be discontinued without costs to either party, and the plaintiff shall deed to the city of New York all its rights and property herein which shall be paid for. The refusal of the trial justice to receive evidence of the value of the pier rights beyond the original "That the grantee should within three months after being required by the city, at his own expense, construct good and sufficient bulkheads, wharves, streets, or avenues, * * * should regulate and pave the same, and uphold and keep the same in good order and repair. That the said streets and avenues should forever continue and remain public streets, avenues and highways. ** That the grantee was to build said wharves, bulkheads, streets and avenues when thereunto required by the mayor, aldermen, and commonalty of the city of New York, or their successors. grantee upon fulfilling all of said covenants was And, lastly, that the to receive the wharfage, cranage, and all other The commissioners of the sinking fund were authorized by the ordinance to sell or dispose of any real estate in the city not in use or reserved for public purposes upon such terms as the commissioners of the sink ing fund might deem most advantageous to the public interest, after appraisal of the same and public notice thereof of the time and place of the sale, and every grant made under or by authority of the commissioners of the sinking fund was required to contain the usual covenants, etc. The deed executed by the city to Lindsley did not contain the covenants that the grantee should construct streets or avenues, regulate and pave the same, keep the same in good order and repair, and that the streets and avenues should for ever continue and remain public streets for the free and common use and passage of the inhabitants, etc. The omission of the covenants named from the deed did not render the grant void. The plaintiff does not seek to recover damages by reason of a failure of streets, but confines its claim to damages for loss of the right to maintain the pier and collect wharfage at Forty-Third street. The trial justice found as matter of fact, in relation to the deeds executed to Lindsley in 1850, that performance of the covenants to build and construct Thirteenth avenue and fill in and extend Forty-Third and Forty-Second streets out to Thirteenth avenue was not required by the city, and the plans for the improvement of the water front adopted in 1871 forbade and prevented any such filling in or construction in the future and prevented any solid filling in the water front of the Hudson river from Thirty-Sixth to Forty-Sixth street west of a line 250 feet west of the east side of Twelfth avenue as said avenue was shown on the Smith map. The provision of the ordinance of 1844, "that the grantee was to build said wharves and bulkheads when thereunto required by the mayor, aldermen and commonalty of the city of New York, and that the grantee upon fulfilling all of said covenants was to receive wharfage and cranage and all other advantages and emoluments accruing by or from the exterior line," was in substance embodied in the deed of the pier to Lindsley. That instrument granted to Lindsley the pier and embraced thereunder was a right to wharfage thereon and all revenue derived there from. It also provided that the grantee at his own expense, when ordered so to do by the city, should extend the pier. Failure on the part of the grantee to comply with such order would result in the forfeiture of the right to wharfage on the pier extended by the city or by any person to whom it granted the right to extend the same after the failure by the grantee to do so. In Knickerbocker Ice Co. v. Forty-Second Street & G. St. F. R. R. Company, 176 N. Y. 408, 418, 419, 68 N. E. 864, we held that the deed from the city to Lindsley in 1852 did not convey to him an absolute fee title, but that the real purpose and effect of the grant was to convey to Lindsley the right to maintain a pier and to collect wharfage at the foot of Forty-Third street; that the deed of 1852 conveyed the incorporeal hereditament attached to the fee and not the fee itself; that the ice company, plaintiff in that action, as the grantee and successor in title, had the right to follow the extension of Forty-Third street for the purpose of maintaining a pier and collecting its revenues; and that the right to maintain the pier and collect wharfage at the foot of Forty-Third street should extend to such point as should be located by lawful authority. When this case was before this court upon the first appeal (American Ice Co. v. City of New York, 193 N. Y. 673, 87 N. E. 765), we held that the plaintiff was not entitled to damages for the destruction of its old pier, nor by reason of the construction of the bulkhead provided for in the plans of the dock department, but to a proper compensation for the taking of his right to maintain a pier. The appeal in that case was argued in connection with Matter of Mayor, etc., of N. Y., 193 N. Y. 503, 513, 514, 518, 87 N. E 759, 762, 763, where the conveyance made by the city to Lindsley was again under consideration. Judge Werner, writing for this court, said: others is whether the American Ice Company "The question in the case which underlies all has a valid and existing right to maintain a pier in the North River at the foot of Forty-Third Forty-Second Street & G. St. F. R. R. Co., 176 street. In the case of Knickerbocker Ice Co. v. N. Y. 408, 68 N. E. 864, we held that the plaintiff there was the, grantee of a 'right to maintain a pier, and to collect wharfage, etc., at the wherever that point should be located by lawfoot of Forty-Third street in the Hudson river, ful authority.' The American Ice Company has succeeded to all the rights of the Knickerbocker Ice Company in the premises." After discussing the questions that have been raised with reference to the validity of the title, Judge Werner said: "We close this branch of the discussion by reiterating what we said in Knickerbocker Ice Co. v. Forty-Second Street & G. St. F. R. R. Co., supra, that the ice company was the grantee of the right to maintain a pier and to collect wharfage, etc., at the foot of Forty-Third street in the Hudson river, wherever that point should be located by lawful authority,' and we now add that the grant was a valid one." We reiterate that the deed from the city to Lindsley conveyed to Lindsley the right to maintain a pier and to collect wharfage at the foot of Forty-Third street wherever that point should be located by lawful authority, and that the plaintiff as successor in title to Lindsley had the right to follow the lawful extension of said pier on Forty-Third street for the purpose of maintaining the pier and the water front had been adopted under the collecting the revenues therefrom. [2, 3] Counsel further argues that the department of docks was powerless to authorize plaintiff's predecessor in title to extend the pier into the river, and in support of that contention calls attention to the organic law establishing the dock department. Chapter 574 of the Laws of 1871. Section 6 of that act amended section 99 of the act of 1870 and created a department of docks which was to have exclusive charge and control of all wharf property belonging to the city, or to which the city is or may become entitled or may acquire under the provisions of said statute, and said department was to have exclusive charge or control of the labor, building, rebuilding, maintaining, altering, strengthening, leasing, and protecting said property and every part thereof. The statute then provided: "Said department is also hereby invested with the exclusive government and regulation of all wharves, piers, bulkheads and structures thereon, and waters adjacent thereto, and all the basins, slips and docks, with the land under water in said city not owned by said corporation." law of 1871, but that such plan showed the pier proposed to be built at the foot of FortyThird street, provided that the proposed pier be 60 feet in width, and that tracings of the pier referred to be transmitted to the commissioners of the sinking fund. One week later the dock department in its proceedings referred to the resolution of the sinking fund commissioners making the legal width of the pier 60 feet instead of 40 feet, as laid down in the plans adopted by the department and by resolution granted permission as hereto fore stated to the Knickerbocker Ice Company in making the repairs and extensions to said pier as ordered by resolution of September 25, 1873, to build said pier a width of 60 feet, the width of the street. The resolution provided that, when any portion of the land under water belonging to the city covered by the extensions to the pier shall be required for the permanent improvement of the water front, no claim shall be made by said company or its successors for damages or otherwise for any structure or improvement that may be upon the land owned by the city, or construed as a waiver of the title The statute of 1871 does not refer to grants of the city in and to the land lying outside theretofore made. The grant to Lindsley of of the dimensions of the present pier. Two the right of wharfage was a property right, departments of the city government, one the possession of which could only be resum-charged with the governmental power of reged by the city by due process of law upon ulating piers, and the other with the exproper compensation being made. Langdon penditure of the moneys of the city for that v. Mayor, etc., of N. Y., 93 N. Y. 129; Knick- purpose, recognized the existing plan under erbocker Ice Co. v. Forty-Second St. & G. the law of 1871, and acquiesced in a modificaSt. F. R. R. Co., 176 N. Y. 408, 68 N. E. 864. tion of the same so far as the width and ex[4] Under the law of 1871, the powers tension of the pier in question was concerned. theretofore performed and exercised by other The resolutions mentioned indicate that the officers, departments, or bureaus of the city proposed extension which had been ordered relating to property covered by the act of in September appeared upon the plans pre1871 were to be thereafter exercised by the sented to the commissioners of the sinking dock department, which board was clothed fund at that time. As heretofore pointed with governmental control and regulation of out, the pier was extended 300 feet at the exall wharves and piers which were not owned pense of the ice company, and for 25 years by the city, to the building, rebuilding, re- thereafter the city of New York collected the pairing, maintaining, altering, and strength- annual rental reserved in the resolution orening of said property. The resolution of the dering the pier extended, and so far as possidock department of September, 1873, requir- ble all departments of the city government ing that the pier in question be put in good ratified and confirmed all acts that had thereand sufficient repair and extended into the tofore been performed. I do not agree with North River 300 feet, was an exercise of the the contention of the counsel for respondents governmental power and authority of regula- that the department of docks under the stattion conferred upon the board by the law of ute of 1871 was powerless to order and re1871. The commissioners of the sinking fund quire the extension of the pier to be made. in November, 1873, granted the application of the dock department to change the plan adopted by that board under the act of 1871, and adopted a resolution that it was deemed advisable that an alteration be made in the width of piers, amongst which was mentioned the pier proposed to be built at the foot of Forty-Third street, and then provided that the proposed pier at the foot of Forty-Third street be 60 feet wide instead of 40 as at present. That resolution recognized not only that a plan with reference to the improvement of Counsel for respondents calls attention to language in the statute of 1871 to the effect that the plan adopted by the commissioners of the sinking fund was to be the sole plan according to which any wharf or pier should thereafter be laid out or constructed. I have already pointed out that the plan was modified by the resolutions of the department of docks and the sinking fund commissioners, which departments were authorized to change the width or location of piers laid down on the plan. The provision of the resolution of the dock As was said by Judge Werner in Matter of Mayor, etc., of N. Y., 193 N. Y. 519, 87 N. E. 759, where the rights of plaintiff's predecessor were considered: department that no claim should be made | I think the assumption is at least doubtful) for any structures or improvements made that the department of docks had power to upon the land owned by the city has no ap- make such a grant as the plaintiff now claims plication to the question under consideration; was made, it is apparent from the language the plaintiff does not seek to recover damages of the resolution that no claim of a perpetfor structures or improvements, but merely ual franchise can be predicated upon the for the act of the city in denying to it the resolution of the department of docks. This right to maintain the pier at the foot of For- resolution merely authorized the predecessor ty-Third street as extended by the order to of the plaintiff to extend the pier westward which reference has been made. by a distance of about 300 feet, and to the same width as the pier then existing. This resolution granted a mere license upon payment of $50 “annually in advance as rent for the land under water belonging to the city lying outside of the outer end of the present pier and to be covered by the extension authorized." I do not think it can be claimed with any degree of plausibility that this resolution conferred a perpetual franchise to maintain the extension of the pier. The resolution was not a grant at all, but only a revocable license upon a nominal annual rental. Moreover, the right to extend the pier was expressly stated in the resolution to be subject to the following condition, namely: "Nor have the pier owners any right to compensation for damages to the structure, because that might at any time have been rendered worthless as a pier by the filling in of the land as far westerly as Thirteenth avenue. But it does not follow that the ice company has no property rights in the premises whatever. Its alleged right to an easement over the lands sought to be condemned in this proceeding, and its actual right to maintain a pier at the foot of Forty-Third street, are two separate things. Conceding, for the purposes of this discussion that the ice company has now no pier at the foot of Forty-Third street, it still retains the right to maintain a pier at that point, and that right cannot be destroyed without compensa- "Provided, however, that when any portion of tion. The city is now building, or proposes to the land under water belonging to the city, covbuild, a new pier extending 700 feet westerly ered by the extension to the pier shall be requirinto the Hudson river on a line but 20 feet southed by the city for a permanent improvement to of the southerly line of Forty-Third street ex- the water front, no claim shall be made by said tended. This new pier, when erected, will prac- company or its successors for damages or othertically destroy the franchise of the ice company wise for any structure or improvement that may to build and maintain a pier at the foot of be upon the land owned by the city." Forty-Third street. While the city clearly has the power to acquire this right of franchise owned by the ice company, the latter is quite as clearly entitled to compensation for being deprived of that right." I am of opinion that the rights of the plaintiff are to be measured by the original pier as enlarged by the extension and not otherwise and that the trial justice was in error in holding that damages to plaintiff were to be measured by the original pier. The judgment should be reversed, and a new trial granted, with costs to abide the event. The mere This resolution further provided that nothing therein contained "shall be considered or construed as a waiver of the title of the city," etc. In the face of the explicit condition that the plaintiff should be permitted to maintain the extension only until the land covered by it "shall be required by the city for a permanent improvement of the water front," there seems to me to be no room for the contention that the plaintiff has acquired a perpetual franchise to maintain the pier as extended. The resolution of the commissioners of the sinking fund referred to merely SEABURY, J. I dissent. The decision authorized the department of docks to change about to be made holds in effect that the the water front plan, and directed that the plaintiff has a perpetual franchise to main- proposed pier at the foot of Forty-Third tain a pier as extended at the foot of For- street should be 60 feet wide. ty-Third street, city of New York, and that statement of the terms of these resolutions if the city of New York is to be permitted makes it clear that the city reserved its to complete the permanent improvement of right and title to the land that was covered its water front it must compensate the plain- by the extension of the pier, and that it tiff upon the theory that it owns such a per- granted to the plaintiff's predecessor no right petual franchise. In so far as the plaintiff in the land, and expressly annexed to the derived the right to maintain a pier from the license that it did grant the condition that city through the grant to Lindsley, it has the license should be enjoyed only until any been fully compensated by the award of $24,- portion of the land covered by the extension 619, which has been made to it. The claim of the pier shall be required by the city for of plaintiff to a right in the extended pier a permanent improvement of its water front. must, necessarily, rest upon the resolution From 1873 to 1898 the predecessor of the of the department of docks, passed Septem- plaintiff paid $100 a year rent for the priv ber 25, 1873, and the resolution of the commis- ilege of maintaining the pier and the extensioners of the sinking fund, passed November sion thereto. In 1898, the pier was aban14, 1873. Unless these resolutions confer doned. From that time to the present the the right which the plaintiff asserts, its claim pier has been discontinued and no rent at is without foundation. Assuming (although all has been paid to the city. The city has for refined, educated, Protestant gentlewomen, whose means are small and whose home is made think them in the way, with a preference to tesunhappy by having to live with relatives who tatrix's sister and to her named cousins and their lineal descendants forever and to her named friends, all inmates of the home to pay board not to exceed $7 per week toward paying the expenses of the home, was not rendered invalid as now determined, under its rights specifically reserved in the resolution of the department of docks, under which this plaintiff claims, to permanently improve the water front and to build a pier. The plaintiff, notwithstanding the fact that it has been awarded full value for the taking of its original pier rights derived under the Lindsley grant, and al-à charitable trust because of the preference givthough it has abandoned the pier since 1898, and paid no rent from that time, now asserts a perpetual franchise to the pier as extended. The decision about to be made gives sanction to this claim. The result of the decision will be that the city of New York must pay to the plaintiff, in addition to the sum already awarded, the value of a perpetual franchise to maintain the extension to the pier. In my judgment the claim of the plaintiff is unjust to the city of New York and without any warrant in law to sustain it. en to testatrix's relatives and friends; though if POOR, I therefore vote in favor of affirming the trix's sister, her named cousins and their lineal judgment appealed from. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, and CARDOZO, JJ., concur with HOGAN J. SEABURY, J., reads dissenting opinion. Judgment reversed, etc. (217 N, Y. 454) In re MacDOWELL'S WILL. descendants forever, and to certain named friends, was a gift to a charitable use within no gift to charitable uses shall be deemed invalid Personal Property Law, § 12, providing that by reason of the indefiniteness or uncertainty of the beneficiaries, and that if it names a trustee the property shall vest in him, and that if no trustee is named it shall vest in the Supreme Court with power to control and administer it; as a public charity need have no special reference to the poor, and its character as such was not impaired by the fact that the inmates of the home were required to pay board, or by the inadequacy of the trust fund. [Ed. Note. For other cases, see Charities, Dec. Dig. 11.] (Court of Appeals of New York. March 21, Cent. Dig. § 35; 1916.) 5. CHARITIES 37-CY PRES DOCTRINE. 1. CHARITIES 4 PERPETUITIES ~8(1) Under the cy pres doctrine, embodied in VALIDITY OF CHARITABLE TRUST-STATUTE. Personal Property Law, § 12, each case must dePersonal Property Law (Consol. Laws, c.pend upon its own peculiar circumstance, and in41) § 12, providing that no gift or bequest to adequacy of the trust fund to accomplish the charitable uses which shall, in other respects, be purpose of the charity may justify a change in valid under the laws of the state, shall be deemed the scheme of the charity, and, if the Supreme invalid by reason of the indefiniteness or uncer- Court cannot cause a testamentary trust to be tainty of the beneficiaries, and that if the instru- carried out in the precise manner contemplated, ment granting such a gift names a trustee the le it will apply the trust fund to other charities gal title shall vest in him, and if no person is as nearly as possible like that specifically mennamed as trustee shall vest in the Supreme tioned in the will. Court, which shall have control over such gifts and power to administer them to effect the purpose of the instrument, sanctions the creation of charitable trusts, and relieves such trusts from the operation of the statutes against perpetuities, and restores the law of charitable trustees as recognized in England prior to the Revolution. [Ed. Note.-For other cases, see Charities, Cent. Dig. 88 7, 9, 10; Dec. Dig. 4; Perpe tuities, Cent. Dig. §§ 57, 66; Dec. Dig. 8(1).] 2. CHARITIES 10-"CHARITABLE TRUST." A "charitable trust" is a trust implying a public utility in its purpose, and if the purpose to be attained is personal, private, or selfish, it is not charitable; but when the purpose accomplished is that of public usefulness unstained by personal, private, or selfish consideration, its charitable character insures its validity. [Ed. Note.-For other cases, see Charities, Cent. Dig. § 34; Dec. Dig. 10. For other definitions, see Words and Phrases, First and Second Series, Charity.] 3. CHARITIES 11 CHARITY-BENEFICIARIES-RELATIVES. PUBLIC OR PRIVATE [Ed. Note.-For other cases, Cent. Dig. §§ 91-93; Dec. Dig. see Charities, 37.] Appeal from Supreme Court, Appellate Division, Second Department. In the matter of the probate of a paper Writing purporting to be the last will and testament of Annie Coe MacDowell, deceased. From an order of the Appellate Division (170 App. Div. 245, 156 N. Y. Supp. 387), affirming a decree of the Surrogate (89 Misc. Rep. 323, 153 N. Y. Supp. 653), in admitting the will to probate and holding void an alleged charitable bequest, the Attorney General and proponent appeal. Reversed, and cause remanded to the Surrogate. Daniel S. Remsen, of New York City, and Egburt E Woodbury, Atty. Gen. (Robert P. Beyer, of New York City, of counsel), for A testamentary provision giving property to appellant. William W. Scrugham, of Yonkbe invested and the income to be used for hiring ers, and Graham Witschief, of Newburgh, and maintaining a house to be used as a home for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-12 |