In Re the Department of Public Parks to Acquire Title to Lands

Earl, J. Some time prior to June 3, 1873, application was made to the Supreme Court by the commissioners of public parks, and the commissioner of public works, on behalf of the city of New York, for the appointment of commissioners of estimate and assessment in a proceeding to acquire the title to certain lands, for the purpose of laying out a certain road or public drive. The commissioners were appointed, and entered upon the discharge of their duties as such, and, *564 among other things, awarded to “unknown owners ” the sum of SI,547 for a certain parcel of land taken. Their report-was confirmed June 3, 1873. Grinnell, claiming to be the owner of the land taken, made application to the Supreme Court, by petition, to have the money thus awarded paid by the comptroller to the clerk of the city and comity of New York, and then by such clerk to-him. Upon the hearing upon such application the city appeared, and Dailey also appeared and claimed to be the-owner of the land and the money. The court made an order directing the comptroller to pay the money to the clerk, and directing the clerk, on the receipt thereof, to deposit the. same with the United States Trust Company until the further order of the court; and the court appointed a referee to hear and examine into the matter of the title to the land, and the-money awarded therefor, and to report the proofs, with his-opinion, to the court. Upon the hearing before the referee, Grinnell, Dailey, and. the city appeared. It does not appear that the city made; any claim before the referee to the money; and the litigation, there seems to have been confined to Grinnell and Dailey, both claimingeto have owned the land, and both claiming the money. Grinnell claimed the land by deed from an acknowledged owner, and Dailey claimed title by adverse possession. The referee, reported in favor of Grinnell. A motion was-then made at Special Term to confirm such report, and the-court refused to confirm the same, and made an order that-the money be paid to Dailey. Grinnell alone then appealed to the General Term of the-Supreme Court, and there the order of the Special. Term. Avas reversed, and the court decided that neither Grinnell norDailey was entitled to the money but that the city was-entitled to the same, and it was ordered to be refunded to-the city. From the order of the General Term both Grinnell and Dailey appealed to this court. The arvard of the commissioners of estimate and. assessment- is required by the statutes to be confirmed by the *565 Supreme Court, and when so confirmed is made final and conclusive, both upon the city and the owners of the land taken. (Laws of 1813, chap. 86, § 113 ; Laws of -1865, -chap. 565 ; Laws of 1862, chap. 483.) Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before confirmation, all parties interested are precluded from complaining of them. The award after confirmation becomes in the nature of a judgment which cannot be assailed collaterally. It is as final and conclusive upon all parties as a judgment. (Matter of CommissionerCentral Park, 50 N. Y., 493; In re Arnold, 60 id., 26; Dolan v. The Mayor, 62 id., 472; Pittman v. The Mayor, 62 N. Y., 637.) It matters not whether the “unknown owners” owned simply the fee of the land taken, subject to a public easement, or whether - they owned the fee absolutely free from any easement. The amount awarded must be taken to have been made for the interest of the unknown owners, whatever it was. If it was too great the city should have moved to correct it before confirmation of the award. The sole question before the court upon this application was to determine who the unknown owner of this land was, -and when he was ascertained he was entitled to the money just.as if he had been known and the award had been to him by name. Who, then, owned this land ? It is conceded that Dennis Harris formerly owned it. He died, leaving a will in which he devised all his real estate to Sarah Harris, and she gave a -deed, dated November 13, 1868, purporting to convey this land to Grinnell, and he thus obtained the title, unless Dailey -acquired title as now to be mentioned. Dailey was the son-in-law of Dennis Harris, and in 1851 he made with Harris a parol agreement for the purchase of the land lying between 158th and 157th streets, and bounded westerly by Eleventh avenue. These streets had not been opened as such, but they had been laid down upon maps-as such and were known *566 as streets. He paid a small amount of money towards the purchase-price, and entered into possession of the land as-early, as April, 1852. At that time this land was fenced, the fence on the southerly side of the land being in and along-the center of 157th street. On the 9th day of December, 1853, he took a deed of the land from Harris and gave back to him a bond and mortgage for the balance of the purchase-price. In this deed the land was bounded southerly by the northerly side of 157th street; and it is the land between this line and the center line of the street that is now in question. After this deed, as before, the fence remained along the center of 157th street, and Dailey remained in possession of the land. Dailey had thus been in possession of the land more than twenty years before it was taken in this proceeding, but less than twenty years after he took his deed. During-all this time he was in no way disturbed in his possession, which was open and notorious, and his right to the possession Avas in no way questioned except as may be inferred from the conveyance of the very land in question by Sarah Harris in December, 1868. From these circumstances Dailey claimed that he had by adverse possession the title to this land. But Dailey entered into possession under Harris. Whatever he possessed was clearly under his parol agreement to purchase. He did not. claim the land in hostility to Harris, but all he claimed and all he could claim was such a. right as his agreement gave him. It is too well settled to be disputed, that one who enters upon land under a mere-agreement to purchase does not hold adversely as against the vendor until his agreement has been fully performed, so that he has become entitled to a conveyance. (Jackson v. Johnson, 5 Cow. 74; Jackson v. Spear, 7 Wend., 401; Briggs v. Prosser, 14 id., 227 ; Devyr v. Schaefer, 55 N. Y., 446.) The adverse possession of Dailey, therefore, did not commence to run prior to December 9, 1853, when he took his deed from Harris; and even if the facts were sufficient to .show adverse possession after that, it was short of tAventy years. *567 The deed to Grinnell was not void for champerty, because Dailey was not in possession of this land under any specific title. (Crary v. Goodman, 22 N. Y., 175.) . It follows from these views that the order of the General and Special Terms must be reversed, and the report of the referee must be confirmed, and an order entered directing the payment of the money to Grinnell, with costs to be paid by the city of New York. All concur. Ordered accordingly.