#### Robert Furey and Thomas F. White, Applt’s, *v.*The Town of Gravesend *et al.,*Respt’s.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. MUNICIPAL CORPORATION — CONTROL OP LANDS OP TOWN OP GRAVES-END — INJUNCTION — RIGHT op Lessee under — Laws 1883, ch. 458.

Laws 1883 ch. 458, provide that the care and control of the common lands of Gravesend shall be vested in the supervisors of the town and five trustees and that they shall not have power to sell or give title to any of such lands excepting certain parts therein named at that time in the possession of the lessees of the town.

That they might sell the lands thus excepted to the lessees in possession provided the sales should be ratified and confirmed by a resolution duly passed at an annual town meeting or at a special town meeting called for that purpose, such sale to be upon the same terms of payment provided for sale of other lands of the town.

In an action brought by certain parties of the class to whom according to the act, sales of the common lands might be made, to obtain an injunction order restraining the town from selling the lands to others. *Held,*that the plaintiffs did not by virtue of the provisions of the statute acquire any such interest in the lands in question as would entitle them to the relief demanded.

2. Covenant — Extent op in resolution passed at town meeting.

At an annual town meeting of said town the electors thereof adopted a resolution that the common lands of the town should thereafter be let only at public auction, on the premises or at the town house to the highest bidder, on notice specifying the time and place of letting, and that if any lot should be let to any person other than the last lessee owning improvements thereon, ■the new lessee should 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 that these conditions should be set forth in the notice. *Held,*the town did not thereby assume any liability except the duty of specifying the new lessee’s liability in the notice to be given for the leasing of the lands. And that this could not be construed as anything more than a covenant that, in the event of a further lease, the town would tafee measures to cause the new tenant to pay the former tenant for improvements.

3. Same — What a bar to action.

*Held,*that a judgment in an action of ejectment adverse to the plaintiffs in this action and in favor of the defendants which stood unappealed from and unreversed was conclusive against any claim on the part of these plaintiffs to any right of possession in those lands antedating the rendition of such judgment.

Appeal from a judgment of the supreme court, general term, *710second department, reversing a judgment of the special term granting an injunction restraining the town of Gravesend from, selling certain of its lands.

*Wm. C. Dewitt,*for applt’s ; *Wm. J. Gaynor,*for respt’s.

1

 Affirming 38 Hun. 319.

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 conveying-to one William Ziegler certain lands owned by it.

No affirmative relief in respect to such lands was demanded in the complaint or claimed on the trial, and the entire extent of the plaintiff’s 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-simple of the lands 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 the 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 lots number 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 enacts as follows:

“ But the said supervisor and trustees shall have power and. are hereby authorized to sell said lots number 51 to 56, 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. *711for tbat purpose, such sale to be upon the same terms of payment provided for sale of other lands of said town.”

Iu 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 provisions 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 to whom they are authorized to sell and convey.

No 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 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 and 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 should choose to bujq 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 *712some 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 even 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 10 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 Gravesend on Coney Island shall hereafter be let only at public auction on the premises or at the town-house 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 my 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 tnat 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 ahem on such leased premises. No 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. No express provision relative 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 arate provided for. No absolute liability is assumed thereby by the town except the duty of specifying the new lessee’s liability in the *713notice to be given for the leasing of the lands. This could not be construed as any thing 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 they are entirely at liberty under such a covenant to refuse to lease again and dispose of the lands otherwise according to their discretion.

Even if any covenant could be implied, it is quite evident that the condition upon which it was made to depend of a new lease to another party has never accrued, 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 defendant against these plaintiffs in July, 1883, and which resulted in favor of the defendants 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.

We 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 and 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 judgment should, therefore, be affirmed.

All concur.

Judgment affirmed.