UNITED STATES et al. v. BENEDICT.

Relying upon the Lever Act—40 Stat. 276, 279 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 1/8 ii)—the United States took possession of certain land along new York Bay, April 6, 1918, and, as surviving trustee under the will of Langley, defendant in error, Benedict, instituted this proceeding to recover its value. The tract had been platted into blocks and trustees holding the title had undertaken to convey to New York City the beds of Sixty-First, Sixty-Second and Sixty-Third streets from designated avenues 'to New York Bay,' as laid down on the commissioners' map. The city was made defendant to the amended complaint because of possible interest arising out of this conveyance. No right of recovery against it was suggested. It answered rather vaguely, but claimed title to 'the lands included within the limits of Sixty-First street, Sixty-Second street and Sixty-Third street from the westerly side of First avenue to the New York Bay,' and stated that 'the area of said streets is 81,120 square feet.' It asked that the complaint be dismissed. Later it moved, without success, to amend the answer and set up ownership to the beds of Sixty-First, Sixty-Second and Sixty-Third streets to the pierhead line.

The cause was tried by the court without a jury. The United States stipulated that defendant in error had good title to all the tract, upland and submerged, except such as lay within Sixty-First, Sixty-Second and Sixty-Third streets to high-water mark. Among the findings of fact which the city proposed is this——

That on April 25, 1899, the said trustees duly executed and delivered to John Whalen, the then corporation counsel of the city of New York, a deed granting and conveying to the city of New York the fee, impressed with a trust for street purposes, of the lands inclu ed within the limits of Sixty-First street, Sixty-Second street and Sixty-Third street from the westerly side of First avenue to the New York Bay.

Judgment went against the United States for a sum equal to $2 per square foot of the whole area, with interest, less cash originally paid. The trial court held the trustees' deed to the streets invalid, but, if valid, that the recovery nevertheless should be for the same amount as streets were essential to enjoyment of the property. 271 Fed. 714.

Writs of error from the Circuit Court of Appeals were sued out by both defendants. The city assigned as error—among others the trial court's refusal to dismiss the complaint. By opinion dated January 18, 1922—280 Fed. 76—the court ruled that the city had good title to the streets, that the judgment of the District Court was erroneous and a new trial would be awarded, unless out of the recovery defendant in error should assign to it $162,240—$2 per square foot for the platted streets up to New York Bay, 81,120 square feet as stated by the answer. January 28th the trustees so assigned $162,240, with interest from April 6, 1918, and on January 31st the contested judgment was formally affirmed.

In the Circuit Court of Appeals the city entered no objection to the arrangement suggested by the opinion. Its counsel here claim that——

'The judgment should be modified by requiring defendant in error to assign to the city of New York an additional portion of the judgment recovered against the United States, representing the compensation, with interest, awarded for the portions of the streets between the high-water line and the pierhead line, to wit, the sum of $589,731.82.'

The situation is a peculiar one. The city asked, not for recovery, but to be dismissed. Of its own motion and off the record, the court proposed a method of settlement which the trustee adopted in preference to reversal. These unusual circumstances required the city to act promptly if it did not approve. After nearly three months it took a writ of error, and now seeks to reverse the judgment because a greater sum was not awarded. We think it may not deny voluntary acceptance of the assignment and full assent to the arrangement which defendant in error carried out with the obvious purpose of ending the controversy between them. It cannot hold what it accepted and demand more. The final judgment must be treated as though entered upon its express consent, and its writ of error is accordingly dismissed.

The United States object to the judgment because interest was allowed from date of the taking. This point has been discussed and determined in Seaboard Air Line Railway Co. et al. v. United States, 261 U. S. 299, 43 Sup. Ct. 354, 67 L. Ed. ——, decided today, and needs no further elaboration. As to the United States, the judgment below is

Affirmed.