The People and Taylor a. The Mayor, &c., of New York.

the city of New York, lying on the westerly side of that street, between Vesey and Dey streets, and extend westerly about 440 feet:

That the defendants the Corporation of New York have taken possession thereof, and have rented the same for market and other purposes:

That the People have made and executed to the plaintiffs Taylor and Brennan a lease for said premises for one year from April 24, 1858, at an annual rent of $5000, payable quarterly:

That the defendants withhold from Taylor and Brennan the possession of the premises, and that they are entitled to the rents and profits of the same from April 24, 1858:

That the tenants of the premises pay the rent thereof to the defendants, and refuse to acknowledge the rights of the plaintiffs, or to pay them the rent thereof:

That a small portion only of the rents collected have been paid into the city treasury, and that the persons so acting in the collection of the rents are pecuniarily irresponsible, and some not authorized to act; that the amount so paid is annually more than the sum of forty thousand dollars; and that the moneys are paid weekly:

That it would be the duty of the collector of the city revenue to collect and receive such rents if the same really belonged to the city, but that the same were collected by some other persons:

That the comptroller of the city has received but a small portion, if any, of the rents collected; that he has stated that the premises belong to the State, and therefore that the city has no legal right to collect and enforce payment of the same; and that for this reason he has refrained from exercising that control over the property which he would have done if it belonged to the city:

That the occupants of the premises are men of little or no pecuniary means; that they pay their rent weekly in advance; and that the same is in danger of being wholly lost, by reason of their want of means, and residence of many of them out of the State:

That the comptroller has stated that in his opinion a receiver ought to be appointed to take charge of and collect said rents, and hold the same for the benefit of whomsoever may be entitled thereto.

The People and Taylor a. The Mayor, &c., of New York.

On the hearing, other affidavits were read on the part of the plaintiffs, showing that the premises in controversy were outside of the 400 feet from low-water mark on the North River:

That the mayor of the city concurred in the opinion of the comptroller that the title to the land was in the State, and not in the city, and that the city had no right to lease it or use the

same.

On the part of the defendants, the Corporation, there is produced the affidavit of Mr. Serrell, city surveyor, setting forth that the premises in question have been reclaimed, by the defendants the Corporation, from the North River, by filling in the same that such filling in began in 1844, and was completed in 1853 that since such filling in, the defendants, the Corporation, by their officers and agents, have rented the said premises, have claimed to own the same, and exercised acts of dominion over the same, and received the rents thereof in their own right.

Mr. Flagg, the comptroller, states that such filling was done under a claim of title to the land under water; and that since such filling, the defendants the Corporation have been in actual possession thereof, claiming to own the same in fee simple.

He further states, that the rents of said premises are being collected by Robert A. Haggerty, duly appointed for that purpose by the defendants, and that the same are being faithfully collected by him and paid into the city treasury:

That he has always supposed that it was the duty of said Corporation to collect such rents, whether the title to the said. premises was actually vested in the defendants the Corporation or in the State that he is not of the opinion that the appointment of a receiver is necessary to protect either the interests of the State or of the city: that such rents are now in due course of collection, and by proper persons.

The mayor makes an affidavit expressing the same views.

The affidavit of Baum shows that, as clerk of the market previous to the commencement of this suit, he collected the rents from the premises, and paid them over to the Corporation.

The affidavit of Haggerty shows, that since the commencement of this suit he has been appointed, as an officer of the finance department of the defendants, to collect said rents, and has collected the same, and paid them over to the Corporation.

The People and Taylor a. The Mayor, &c., of New York.

First. As to the title of the city to the premises in question: It is conceded that they lie outside of the 400 feet granted to the Corporation by the Montgomery charter. The Dongan charter conveyed to the city the land between high and low water mark all around the island; and the Montgomery charter (1730) granted to the Corporation, on the North River, a strip of land extending into the river 400 feet from low-water mark.

In 1798 the Legislature passed an act authorizing the Corporation to lay out exterior streets on both rivers, of the width of seventy feet, and such streets were to be built at the expense of the owners of the adjoining lots fronting on the same, and the intervening spaces were to be filled up by them; and such proprietors, on filling up such intermediate spaces of ground, were to become owners of the same in fee simple.

In the case of The Mayor, &c., a. Farmer (5 Sandf. S. C. R., 16), the Superior Court held that the proprietors referred to are -the grantees of the Corporation, or their assigns, who had received grants to the full extent of the 400 feet owned by the Corporation, and that the intermediate spaces were those which, in consequence of the irregularity of the shores, sometimes intervened between the extremity of the Corporation grants and the regular streets in front of the river, which the act authorized to be built; and that these intervening spaces belonged to the State, and were granted by the State to the adjoining proprietors on the conditions expressed in the act.

This case was taken to the Court of Appeals, and the judg ment affirmed upon the grounds taken in the Superior Court. The Corporation, as the owner of lands fronting on the river, built West-street and filled up the intermediate spaces, and became therefore the owners in fee simple of the lands extending to the westerly side of West-street. There their ownership terminated, and that of the people of the State commenced. They, as representing the crown, or former sovereign, own the bed of all navigable rivers which have the flux and reflux of the seas, and, as such owners, have the right to grant and sell the same without reference to the owners of the adjacent uplands; and the grantee of the crown or State can build upon or improve the land so granted, so as to cut off the owner of the lands from all access to the water. These points were distinctly ruled in

The People and Taylor a. The Mayor, &c., of New York.

the case of Gould a. The Hudson River Railroad Company (2 Seld., 522).

By section 5 of the act of 1798, it was made lawful for the Corporation to direct piers to be sunk and completed, in such manner as they might think proper, in front of said streets or wharves, at the expense of the proprietors of the lots lying opposite to the places at which said piers shall be sunk. In case the proprietors refused to sink and build the piers, the Corporation might do so, and receive the wharfage to their

own use.

From the facts before me, it appears that the Corporation have built a bulkhead upon the land of the State, some 400 feet west of West-street, and filled in the intermediate spaces, and erected thereon buildings, which are used for market purposes. I do not find any title set up to these premises by the Corporation; though it seems, by the affidavit of Mr. Serrell, that, at the time of the filling, it was done under claim of title,-upon what ground we have no information, and I am greatly at a loss to perceive any.

So little doubt has been entertained on this subject, that the present comptroller, who has large experience in city affairs, and who is not slack to assert and maintain the rights and interests of the Corporation, says, in his report to the Common Council, under date of Feb. 6, 1854: "In the course of the last year or two, land has been gained from the North River, by constructing a bulkhead from pier No. 20 to pier No. 23, between Vesey and Dey streets, and covering an area equal to ninety full lots. A map of this land, including Washington Market, has been prepared by John S. Serrell. The new land is entirely outside of West-street, which at that point is the exterior line of the 400 feet granted to the Corporation by the charter of 1730, usually called the Montgomery Grant. The bed of the river, beyond the line of West-street, and of the four hundred feet embraced in the charter, belongs to the people of the State of New York; and before the land is sold [which he had recommended in his report], or any erections made on it, it is advisable to have the title settled by an act of the Legislature." It would appear from the affidavit of Mr. Mott, that the present mayor of the city entertained similar opinions as to the title of the State.

The People and Taylor a. The Mayor, &c., of New York.

The title to the premises in question would seem therefore to be, free of all doubt, in the people of this State: it has been so decided by the highest court of the State, so recognized by the chief officers of the Corporation, and particularly the comptroller, whose especial duty it is to look after the property of the Corporation. It is so averred in the complaint; and I have looked in vain, in the papers put in to oppose this motion, for this motion, for any denial of the title of the State, or any averment that the title is in the Corporation.

As to the appointment of a receiver. This court, by sec. 244, subdiv. 1, of the Code, is authorized to appoint a receiver before judgment on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of the adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired.

Edwards, in his able work on Receivers (ed. of 1857, p. 18), says: "What is here meant by establishes an apparent right' is not very clear, when connected with an action before judg ment. It is probable the use of a well-known term-prima facie right-is what is intended, and ought to have been the phrase."

It is undeniable that in this case the plaintiffs have established an apparent or prima facie right to the property the subject of the action.

It seems to be the well-settled rule, that where the right is clear, and the party in possession has no legal title, to appoint a receiver in the first instance. Such was the case of Stillwell a. Wilkins (6 Mad. Ch. R., 49); and on appeal to Lord Eldon, he affirmed the appointment. The case of Lancashire a. Lancashire (9 Beaven, 120) is an authority for the position, that when the legal title is clear, or it is admitted, a receiver will be appointed.

In Fingal a. Blake (2 Molloy, 50), a receiver was appointed to take the possession of property from the heir-at-law, at the instance of a party claiming as devisee in trust under a will. In that case the court was satisfied upon the merits, that the heir was shut out from the inheritance, and therefore a trespasser.

In Cole a. O'Neill (3 Md. Ch. Dec., 174), the chancellor says,