Barrett v. Palmer — 40 N.Y. St. Rep. 700

Majority

p. 700

Mary H. Barrett, Resp’t, v. William H. Palmer and Adolph M. Droste, App’lts.

(City Court of Brooklyn, General Term,

Filed October 26, 1891.)

Headnote

1. Trespass—Damages.

Defendant Palmer leased from the city certain premises for market purposes for two years from October 7, 1887, with a privilege of renewal, which was exercised by his assignee. In February, 1889, he leased a portion to plaintiff for two years, and she entered and erected stands, but was ejected in April and her property converted by defendants. Held, that the court properly allowed the jury in estimating damages to consider loss of possession of the premises after October, 1889, the expiration of the first lease.

2. Same—Jurisdiction.

The premises on which the trespass took place were a portion of the lands included in chap. 355, Laws 1853, over which jurisdiction was ceded to the United States, but the same had been leased to the city for market purposes. Held, that the state courts had jurisdiction of the action.

Appeal from judgment In favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

Hirsh & Rasquin, for resp’t; M. L. Towns, for app’lts.

The United States .government on October 28, 1884, leased to the city of Brooklyn a certain tract of land for market purposes, and now known as the Wallabout Market. The city of Brooklyn on October 7, 1887, leased a part thereof for the same purpose to defendant Palmer for the term of two years, with the right to renew1 the same. Palmer, on February, 1889, leased a part of the premises so let to him to the plaintiff for the same purpose for the term of two years. Plaintiff took possession thereof and constructed market stands thereupon. It is admitted that the premises in Question were a part of the land referred to in Laws of New York, 1853, chapter 355. But there is no evidence to show how the United States acquired any title thereto, or became the owner thereof. The act of 1853 merely cedes the jurisdiction of the state over these lands to the United States, with certain reservations. It does not cede the lands or the title thereto. The defendants, in April, 1889, ejected plaintiff, who had paid the rent up to July, 1889, from the premises, and converted her personal property, and have kept possession thereof ever since. This action is brought to recover damages for such wrongs. The jury rendered a verdict for $1,520, and from the judgment entered thereupon, and order denying a new trial, the defendants appeal. It is urged that the court erred in permitting

p. 701

the jury to consider, in estimating damages, loss of possession of premises after October 9, 1889, the date of expiration of Palmer’s lease from the city. There is no exception that raises such question, and one of the defendants requested the court to take into consideration loss of possession for a period of thirteen months following that date. But assuming that there was such an éxception taken, it could avail the defendants nothing, for this lease to Palmer gave him the right of renewal, and Droste, his assignee, with notice -of plaintiff’s rights, did actually receive such renewal from the city. The only exception called to our attention that we deem necessary to .further consider is that this court had no jurisdiction of this cause of action, because the acts of trespass complained of occurred upon territory over which chapter 355, Laws ■of Hew York, 1853, ceded jurisdiction to the United States. Article 1, § 8 United States Constitution is invoked to sustain the contention. It provides “ that congress shall have power to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by consent of the legislature of the state in which the same shall he for the erection of forts, magazines, arsenals, dock yards and other needful buildings.” There is nothing to show that these lands were purchased by the United States, arid it has been expressly held if they were not, however -else they were acquired, this constitutional provision does not apply. Chicago, R. I & P. R. Co. v. McGlinn, 114 U. S., 542 ; Fort Leavenworth Railroad Co. v. Lowe, id. 525. In these cases the court also decides that if the lands are not so acquired by the United States, the following general principle will apply; that when legislative power over territory is transferred by one sovereign to another, the then existing laws of the territory “ continue in force (till abrogated by congress) "" * * to so much thereof as is not used by the United States for its forts, buildings and ■other needful purposes of the federal government” The lands leased to the city of Brooklyñ are not used for any such purposes. Congress has not abrogated the laws of the state in this case. Jurisdiction of this cause of action has not been given to either United States circuit or district court Foster's Federal Practice, 1890, 21, §15; 34, § 25.

This plaintiff can appeal for relief to no other tribunal than the state court It is further held that reservations are valid in a state act ceding jurisdiction to the United States over lands .acquired otherwise than by purchase with the consent of the legislature. It does not appear that these lands were so acquired. Section 4 of chapter 355, Laws of 1853, reserves to the state jurisdiction, if the premises are not used for the purposes for which jurisdiction is ceded. Section 1 recites the cession to be for “the uses and purposes of a navy yard ánd navy hospital.” The lands in question in this action have been let expressly to the city of Brooklyn for “market purposes.” For these reasons we have ■concluded that this court has jurisdiction of this cause of action.

We think the judgment and order ought to be affirmed, with costs.

Osborne, J., concurs.