Respondent's Points. out any reference to the time during which such cesser has continued." 3 Kent Comm. 450; Cartwright v. Maplesden, 53 N. Y. 622; Corning v. Gould, 16 Wend. 531; Whitney v. Wright, 15 Wend. 171), Wm. C. Whitney, counsel to the corporation, and T. B. Clarkson, assistant to corporation counsel, for the mayor, &c., among other things, urged :—I. (a) The land must be deemed to have been taken for public purposes, although neither the act nor the report says anything on that subject-nor even as to what use was to be made of the land (Mills Eminent Domain, §§ 10, 11). (b) The report of the commissioners (in a proceeding to take private property for public use as a street) is a judgment, and conclusive as to all questions litigated, or which might have been litigated therein (Dolan v. Mayor, 62 N. Y. 472; Matter of Arnold, 60 Id. 26–28; Embury v. Conner, 3 Id. 511–522, 528). (c) The parties whose land was taken had their day in court; but there was no objection by anybody on the ground that the property was not taken for a public use. (d) The evidence in the case shows that the land was, in fact, devoted to public uses during all the time we can get any accurate account of its history since the city acquired it. It was used to build thereon a public market and engine houses, and was used as a public park. There is testimony covering almost the whole time from the time the city acquired it down to 1869, and all the uses of it by the city were public uses, and no use other than a public use on the part of the city has been shown. (e) The mere fact that the legislature authorized the corporation of the city of New York to take the property was a declaration that the property was to be taken for public purposes. The city could not take it for any other purpose. It was not authorized to do so. It could not hold the property merely for private gain (Dillon on Municipal Opinion of the Court, by SPEIR, J. Corporations [2 ed. § 64]; City of Chicago v. Halsey, 25 Ill. 595; Merwin v. City of Chicago, 45 Id. 133; Darlington v. Mayor, 31 N. Y. 164-197). (ƒ) Every presumption is to be taken in favor of the regularity of the proceedings. We are not bound to prove that the court had jurisdiction, and that its proceedings were regular. It would have been sufficient if the defendants had, in the first place, given in evidence the report of the commissioners and the order of confirmation. Then it would have been incumbent on plaintiff to prove, affirmatively, that the court did not have jurisdiction, had not acquired jurisdiction (Embury v. Conner, 3 N. Y. 511; Matter of Arnold, 60 Id. 26–28; Dolan v. Mayor, 62 Id. 472-5). And if the application for the appointment of commissioners, and the order appointing them, are not now to be found, yet, in the face of the order of the court, made thirty years ago, when the whole matter was fresh, this court cannot now say that they never did exist (Potter v. Merchant's Bank, 28 N. Y. 641). II. The defendants, the mayor, &c., having shown a perfect title in fee, and undisputed possession down to 1869, the other defendant, Darcy, can stand on their title. If Darcy admits the validity of the contract between him and the corporation, and the sufficiency of its execution, the plaintiff cannot question it. His (plaintiff's) right does not depend on the validity of that contract. He must stand on the strength of his own case, not on the weakness of that of the defendants (2 Greenl. Ev. [13 ed.] § 331). Besides, if the contract in writing was insufficient, Darcy was a tenant at will or by sufferance-tenant at all events by the consent of himself and the owner of the fee-and entitled to stand on the landlord's rights. BY THE COURT.-SPEIR, J.-It appears from the case that the plaintiff, in June, 1876, was in actual pos Opinion of the Court, by SPEIr, J. session of the lot in question, and had been since the preceding September, having it enclosed with a board fence with all the others included in the square bounded by One-Hundred-and-Twentieth street, Third avenue, One-Hundred-and-Twenty-first street and Sylvan place, except a plot in Third avenue one hundred feet in depth on One-Hundred-and-Twentieth street-being the south-east portion of the square. He had leased portions of this square to tenants, collected rents from them, erected buildings on different parts of the property, and asserted ownership to all the property so en closed. The testimony of the witnesses shows that the fence was occasionally taken down by persons in the neighborhood for short periods of time, still it is plain from all the evidence that the occupation was a continued one, and that the buildings were erected by the plaintiff under permits obtained from the city. The action is brought against Darcy alone, who claims title as lessee from the mayor, aldermen, &c., who by the court were permitted to put in an amended answer to the complaint, and cannot therefore set up any defense except through Darcy. He had no title nor right to possession. Unless the relation of landlord and tenant is shown to exist between them, the mayor, &c., cannot defend the suit. The main question in the case is, did that relation exist? It is claimed by the defense that the city acquired title to a certain tract of land of which the land in controversy is a part under the act of 1839, chapter 246. This act declared that the corporation should become vested with the title to said tract by like proceedings as were prescribed by the laws of 1834, chapter 150, excepting the first and twentieth sections of that act. Passing for the present that the act makes no provision for taking property for public use, and is there Opinion of the Court, by SPEIR, J. fore unconstitutional, I am of the opinion that the city's counsel have wholly failed to prove by their witnesses and the proceedings taken from the files of the court, that the city became and were seized in fee simple absolute of all the land described in the act. Assuming that the act conferred the power to take the steps claimed by the defendant, the decree pronounced by the supreme court was invalid. In this matter the court had only a special and limited jurisdiction, and in such cases it is well settled that all its proceedings are of no avail unless every step prescribed by the statute is proved to have been taken. Unless a court has jurisdiction it can never make a record which imports incontrovertible verity to the party over whom it has usurped jurisdiction (Starbuck v. Murray, 5 Wend. 158). No court or officer can acquire jurisdiction by the mere assertion of it (People v. Cassels, 5 Hill, 165). The act of 1834, chapter 150, section 2, prescribes that the proceedings are to be commenced "on application of the mayor, aldermen and commonalty to the supreme court; that the court or one of the justices to whom such application is made, shall appoint three disinterested persons, &c." It is plain that such application is the foundation of the limited jurisdiction conferred, and there is no proof that any such application was made by the mayor, &c. The provisions of the act of 1834 were not complied with in the necessary steps to be taken in the confirmation of the commissioners' report to the court, and failure to comply with ` these provisions was a fatal defect. In Matter of City of Buffalo (78 N. Y. 362), it is held that where power is delegated by the legislature to a municipal corporation to take the property of the citizen in invitum, all the prescribed prerequisites to the exercise of that power must be strictly observed and conformed to. In other words, it cannot be presumed that these re Opinion of the Court, by SPEIir, J. quirements have been met-the corporation must be able to show it. The answer sets up a lease dated April 3, 1876, which is put in evidence by the defendant, between the mayor, &c., acting by the commissioners of the sinking fund, and the defendant, Darcy, under which he claimed title. This lease is executed by Andrew H. Green, and not by the board of commissioners of the sinking fund, nor by the mayor, aldermen, &c. This lease has no validity and confers no title upon Darcy. It was not executed by the commissioners of the sinking fund, who appear upon the face of the lease to be acting as the agent of the city. Besides, Green, as an individual or as comptroller, had no authority to execute the lease. The plaintiff, as we have seen, was in actual possession of the premises. This was enough to enable him to recover it from Darcy, a mere trespasser, who entered without any title. The plaintiff recovers on the strength of his own title and not on the weakness of the defendant's title, which is a rule applicable to all actions for the recovery of property (Christy v. Scott, 14 How. U. S. 292). But it seems clear to us that the city acquired no title under the act of 1839, or the act of 1834, to which it refers, as no provision is made for taking private property for public use. There is nothing appearing upon the face of these statutes, or by the case, showing what facts existed to justify the legislature in enacting them, and thereby assuming to authorize the sale of the lands mentioned in them. If any necessity existed for the action of the legislature, the proofs are not furnished us, nor are they recited in the statutes. It is not claimed that the city used more than two or three lots of the whole square for a market, engine and hose companies, prior to 1862 or 1863, upwards of twenty years after the act was passed, or that it was used as a square more than six or seven years. In April, 1876, |