Third Department, January, 1921. [Vol. 194. Court of Appeals from an order of reversal by this court, an original order which was subsequently resettled by this court. The original order was superseded and abrogated by the order in its resettled form and is without force or effect for any purpose whatever. The order in its final form is the only valid and effective expression of the decision of this court, and is the only one which forms, or should form, any part of the record on appeal. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion is denied, with ten dollars costs. CLARKE, P. J., SMITH, PAGE and GREENBAUM, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. FIRST CONSTRUCTION COMPANY OF BROOKLYN, Respondent, v. THE STATE OF NEW YORK, Appellant. Third Department, January 5, 1921. Waters and watercourses - eminent domain appropriation of lands under Gowanus bay for Barge canal purposes — right to build docks, make fills, etc., granted under Laws of 1884, chapter 491, and prior statutes - claim by successor of grantee under said statutes for damages — evidence not establishing forfeiture for failure to exercise rights within reasonable time award of compensation sustained. The Legislature by chapter 491 of the Laws of 1884 through confirmation of grants attempted to be made by chapter 702 of the Laws of 1873 and chapter 398 of the Laws of 1875 granted to the plaintiff's predecessor in title, the owner of the upland, the right to build docks and piers and make fills upon lands under water in Gowanus bay subject to a condition subsequent of forfeiture for failure to exercise within a reasonable time, which rights were appropriated by the State in 1912 for Barge canal purposes. Held, on all the evidence, that the claimant has shown substantial progress towards completion within a reasonable period so that it has not forfeited its rights and, hence, is entitled to the compensation awarded. JOHN M. KELLOGG, P. J., and KILEY, J., dissent, with opinion. App. Div.] Third Department, January, 1921. APPEAL by the defendant, The State of New York, from a judgment of the Court of Claims in favor of the claimant, entered in the office of the clerk of said court on the 11th day of February, 1920, awarding to the claimant $997,066.75 and interest for lands on the Brooklyn water front appropriated by the State for the purposes of the Gowanus canal. Charles D. Newton, Attorney-General [James Gibson and John D. Monroe, Deputies Attorney-General, of counsel], for the appellant. Charles C. Clark [Charles E. Hughes and William N. Dykman of counsel], for the respondent. H. T. KELLOGG, J.: This case was before this court in 174 Appellate Division, 560, and before the Court of Appeals in 221 New York, 295. The extended consideration which it has already received makes an elaborate statement of the facts superfluous, and has materially restricted the legal questions necessary to be examined. The subject of the claim is underwater lands in Gowanus bay in Brooklyn, N. Y., appropriated by the State. An award was previously made on the theory that the claimant owned the fee in the lands. This award was made on the theory that it owned merely the right to fill and build piers and wharves thereon. The former award was for $1,081,516.50, with interest, and the present award is for $997,066.75, with interest. The Court of Claims has made the following finding: "That so far as the following acts of the Legislature purport or attempt to grant property rights in and over the appropriated area to private persons they were bills appropriating public property for local or private purposes and were unconstitutional and void for a failure to receive the assent of two-thirds of the members elected to each branch of the Legislature in the years when the same were passed, viz.: (1) Chap. 202, Laws of 1847; (2) chap. 83, Laws of 1851; (3) chap. 184, Laws of 1851; (4) chap. 763, Laws of 1857; (5) chap. 480, Laws of 1862; (6) chap. 481, Laws of 1862; (7) chap. 856, Laws of 1866; (8) chap. 702, Laws of 1873; (9) chap. 398, Laws of 1875." This finding was in perfect accord with many expressions APP. DIV.- VOL. CXCIV. 39 Third Department, January, 1921. [Vol. 194. contained in the opinion of the Court of Appeals. (221 N. Y. 295.) There remained to claimant, therefore, as its sole reliance for proving title to rights over the lands involved, the statute known as chapter 491 of the Laws of 1884. Concerning this statute the Court of Appeals said: "Therefore, the ultimate support of claimant's claim of title to these premises and of its right to compensation therefor must be sought in the act of 1884 already quoted." (221 N. Y. 310.) Chapter 491 of the Laws of 1884, unlike the acts mentioned above which preceded it, was not unconstitutional by reason of deficient assents, for it was passed by a vote of two-thirds of the members of both branches of the Legislature. It was unconstitutional, however, in so far as certain things therein attempted to be enacted transcended the announced purpose of its title. It is provided in section 16, article 3 of the Constitution: "No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title." The title of the act read: "An Act to ratify and confirm certain grants made in pursuance of section three of chapter seven hundred and two of the laws of eighteen hundred and seventy-three." While its title thus expressed but one subject the enactment which followed embraced three subjects. These were stated by the Court of Appeals to be as follows: "It purports to extend the area covered by prior acts to the newly-established bulkhead line. It attempts to amplify what we have held to be a privilege or right or franchise into an estate in fee. It then, except for this extension and amplification, does what was fairly disclosed in the title- ratifies and confirms prior grants." (221 N. Y. 320.) The court then proceeded to hold that the only enactment which was within the title, and, therefore, within the Constitution, was that which ratified previous grants, saying "that this statute may be allowed to operate to the extent of confirming the grants previously made and thereby eliminating the defect of lack of the necessary votes, even though it is unconstitutional in respect of the other purposes to enlarge those rights." (221 N. Y. 321.) The distinction drawn between an act which presently conveys rights presently described and an act apparently confirming a void act attempting a conveyance of rights formerly described, 1 0 App. Div.] Third Department, January, 1921. when neither can operate except as a present grant of property never before granted, may seem somewhat shadowy. It is, however, a distinction necessitated by a constitutional requirement relating to the form which a statute must take. Because of this requirement, the act of 1884 must in form confirm, though to operate it must in fact convey. The inquiry then is whether prior grants referred to by the act of 1884 can be identified as the grants intended to be confirmed; if so, what rights were thereby intended to be conveyed, and whether the same have since been forfeited. The grants referred to by chapter 491 of the Laws of 1884 are stated in its title to be "certain grants made in pursuance of section three of chapter seven hundred and two of the laws of eighteen hundred and seventy-three." The words "in pursuance" would seem to indicate that the Legislature of 1884 considered that the act of 1873 was in itself a grant deficient in terms, or, if not deficient, then a grant requiring modification to meet with its approval. Turning to the act of 1873 we find that it uses words expressing an act of grant of property rights, but fails to describe or locate the premises over which the rights are attempted to be granted. It purports to make a grant in accordance with the terms of a report of a board of officers not yet filed. It purports to grant rights therein to be described only upon condition that such report is afterwards actually filed, and that this report is adopted by the Legislature of the following year. It was, therefore, in respect to its terms an incomplete grant requiring further legislative action to complete it. The Legislature of 1884, which clearly recognized this fact when it made confirmation of grants "in pursuance" of the act of 1873, must also be credited with knowledge of all legislation intermediate the years 1873 and 1884, and with a consciousness of the fact that during this period no act was passed completing the terms of a grant attempted to be made by the act of 1873, or otherwise making an independent grant, except the act known as chapter 398 of the Laws of 1875. Unless, therefore, the Legislature of 1884 intended to make reference to the act of 1875 as well as to the act of 1873 it used words which were meaningless when it sought to ratify grants "in pursuance" of the act of 1873, and in spite of its own words intended to " ratify and confirm " Third Department, January, 1921. [Vol. 194. no grants whatsoever. Therefore, it seems to me conclusive that, if the act of 1875 may fairly be regarded as a counterpart of the act of 1873, so that the two together spell a grant complete in its terms, then that was the grant attempted to be made which the act of 1884 in form confirmed. * The two acts disclose internal evidence of their interdependence and interrelation. While the act of 1873 contains words of grant, it fails, as before stated, to describe the thing granted. On the other hand, the act of 1875 fails in granting words, but is replete with words of description. Thus each is incomplete, but joined together each supplies that which was lacking in the other. The act of 1873 refers to a report of a board of officers appointed by the President of the United States, pursuant to an act of the Legislature passed April 6, 1872, to fix the harbor lines of the harbor of New York on the Brooklyn side. The act of 1875 refers to a report made by the same board. The report referred to by the act of 1873 was a report "of April five, eighteen hundred and seventy-three, and April seven, eighteen hundred and seventy-three." The act of 1875 refers to a report of the same officers "dated April fifth, eighteen hundred and seventy-three." The act of 1873, after adopting the report as to other harbor lines than those of Gowanus bay, which are here involved, relates that the board has determined to withhold their report as to Gowanus bay, although then in possession of sufficient data to make it, until a future occasion. The act of 1875 recites that the board of officers has made a report on Gowanus bay dated April 5, 1873, and then proceeds to enact a law establishing the bulkhead and harbor lines as therein reported. It would seem, therefore, that the report acted upon by the Legislature of 1875 was the delayed report referred to in the act of 1873. Even if the Legislature of 1873 anticipated that a report, not in accordance with the delayed report, would be submitted, they placed no restrictions upon the board of officers, and adopted in advance any report which they might make, and this approval was sufficient to comprehend the report dated April 5, 1873, which was actually adopted. The act of 1873 purported to grant rights to fill to the bulkhead lines * See Laws of 1872, p. 2192.— [Rép. |