#### Peter A. Tilyou, Appl’t *v.*Town of Gravesend *et al.,*Resp’ts.1

*(Court of Appeals,*

*Filed February*8, 1887.)

COMMISSIONERS OP COMMON LANDS OP GRAVESEND — POWER TO RENEW LEASES.

The commissioners of common lands in the town of Gravesend were not authorized on March 1st, 1880, to renew an existing lease for a term to commence on the expiration of the prior lease before the last year of the unexpired lease.

Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of the Kings county special term in favor of defendant in a lease of certain lots of land in the town of Gravesend declared valid and to .enjoin defendant from perfecting the sale and purchase thereof.

*Edward S.*Rapallo, for appl’t; *Wm. J. Graynor,*for resp’t.

1

 Affirming 34 Han, 631 mem.

*726Andrews, J.

This seems to be a reasonably plain case.

The question is, whether the commissioners of common lands in the town of Gravesend, in granting to plaintiff, on March 1, 1880, a renewal of the lease of lots 24 and 27, of the common lands of the town, for a term of ten years from November 12, 1882, the date of the expiration of the term of the lease under which she then held the premises, were acting -within their authority. The determination of the question depends upon the construction of two resolutions passed by the electors of the town in town meeting assembled, one April 4,1871, and the other April 2, 1878. The only authority possessed by the commissioners was conferred by those resolutions. The precise point in controversy is whether the commissioners were authorized to renew an existing lease for a term to commence on the expiration of the prior lease, before the last year of the unexpired lease.

The resolution of April 4, 1871, so far as it is material here, is-as follows : “ Resolved, That the common lands of the town of' Gravesend, or Coney Island, shall hereafter be let only at public auction on the premises to be let, or at the town house in this town, to the highest bidder, in parcels of not more than three hundred feet front each — except Coney Island Point, which may be let in one parcel as at present — on notice specifying the time and place of letting, and describing the premises to be let, which said notice shall be published in the Brooklyn *Daily Ragle*and *Union*each, once in each week, for four weeks immediately prior to such letting. No lot shall be let at a time more than one year prior to the expiration of any existing lease thereon, and no lot let for a longer period than ten years.” The-language quoted is followed by a provision for compensation for improvements, to be made by the incoming to the outgoing tenant, when any lot previously under lease is let to a person other than the former lessee, as to Avhich provision no question arises in this case.

The resolution of April 2, 1878, is as follows: “ Resolved,. That the resolution in relation to leasing common lands in the town of Gravesend, passed at a town meeting held in the town of Gravesend, April 4, 1871, be amended by adding thereto the following: ‘ The commissioners of common lands are also authorized to renew any existing lease or leases of common lands belonging to said town of Gravesend, upon terms as they may deem most advantageous for said town.’ ”

It is claimed on the part of the appellant that the resolution of April 2, 1878, conferred authority on the commissioners to renew leases, without limitation as to the time when the power should be exercised, and that this power was not subject to the-restriction contained in the resolution of April 4, 1871, that “ no lot shall be let at a time more than one year prior to the expiration of any existing lease thereon.”

*727We cannot assent to tbis construction of the resolution of 1878. Under tbe resolution of 1871, no lease could be granted except upon competitive bidding at public auction. Tbe commissioners bad no power to renew existing leases. In all cases the right to a lease of any town lands, whether held under an existing lease or not, vested in tbe highest bidder at the public letting. The prior lessee acquired no preference, and he could demand a new lease only in the character of purchaser of the right at the public sale. Unless he was the highest bidder, his interest terminated with his existing lease, subject only to the right of compensation for improvements, as provided in the resolution.

It is quite manifest that under the resolution of 1871 a lessee who had made valuable improvements during his term, or had built up a valuable business in connection with the premises, might at a re-letting at public auction be placed at a disadvantage. The town authorities also were deprived of any discretion, and although, in view of the circumstances, they might think it for the best interest of the town to continue the existing tenancy, they could not elect to do so, nor could they give any effect to equitable considerations. It was, we think, the object of the resolution of 1878 to relax the stringent rule prescribed in the resolution of 1871, as applied to common lands held under lease, by taking them out of the general rule requiring a public letting, permitting the commissioners to renew existing leases upon such terms as might be agreed upon between themselves and the tenants in possession.

But the resolution of 1878 in no other respect interfered with the scheme of the resolution of 1871. It left unaffected the provision in the resolution of 1871, that “ no lot shall be let at a time more than one year prior to the expiration of any existing lease thereon, and no lot for a longer period than ten years.”

It is obvious that these restrictions were imposed in view of the contingency of an advance in the value of the town property on Coney Island, and to secure to the town the greatest practicable rental therefrom. The amendment of 1878 did not abrogate these restrictions. They in fact served a more important purpose than before, and operated as a check upon fraudulent and collusive proceedings on the part of the town commissioners.- These restrictions, moreover, did not have their origin in the resolution of 1871. They are found in the resolution of 1866, passed before the system of public lettings was adopted; and the resolution of 1878, which restored to the commissioners the power to renew leases which they possessed under the resolution of 1866, contains no indication that it was the intention to depart from the policy established in 1866, as *728to the time within which the power to make renewals should be exercised.

The general rules of construction sustain, we think, the construction put by the courts below upon the resolution of 1878, and it follows that the judgment declaring the lease in question to be void must be affirmed.

All concur.

Elleh Fellow, Appl’t *v.*Town of GbaveseNd, Resp’ts.

Judgment affirmed with costs, on opinion in above case.