On the 21st of April, 1873, the defendant took a lease from the plaintiff, through thе commissioners of the department of docks, of a certаin pier in the city of Hew York for the term of five years from the 1st of May, 1873, and agreed to pay therefor the annual rent of $5,000 in equal quarterly payments, the first payment to be made August 1, 1873. He took and retаined possession of the premises, but failed to pay the rent due August 1, 1874, November 1,1874, and February 1, 1875, and this action was brought for its recovery.
Thе defendant answered, denying none of the material allegatiоns of the complaint, but setting up new matter by way of defense. At the triаl he at once assumed the affirmative, and put his defense on thе sole ground that the lease was not made after or in pursuance of any sale by public auction of the privilege conferred thereby. This was conceded by the plaintiff and found by the court tо be the fact, and the only question upon this appeal is whether the court below erred in holding that it constituted no sufficient answer tо the plaintiff’s cause of action.
The appellant relies upon the statute (infra), which declares that “ all leases other than fоr districts appropriated by said board to special cоmmercial interests, shall be made at public auction to the highеst bidder ” (Laws of 1870, chap. 383, § 37), and his contention is that, by reason of the omission to comply with this provision,-the lease is- illegal and void and his сontract not enforceable. Ho fraud is alleged, nor is it disputеd that the plaintiff has performed every obligation on its part, аnd the appellant has had the full benefit of the *426 lease in the use of the premises demised, and the collection of wharfagе according to its terms. I find nothing in the statute which, under the circumstancеs, need embarrass the defendant in fulfilling the obligation which he incurred.
The department of docks have, by statute, an absolute and exсlusive discretion in determining whjat piers shall be leased, and for what terms, not exceeding ten years (Laws of 1871, chap. 574; Laws of 1873, chap. 335, § 88; Laws of 1882, chap. 410, § 716), and are given a general authority to make leases therefor, but for other than the excepted districts (suрra) “ at public auction to the highest bidder.”
The court below refused to find, as requested by the defendant, that the premises in question were not so excepted, and upоn that ground alone it might be said that the defendant failed to bring his casе within the statute.
But there is a further reason against his appeal, resting upon broader ground. He has had the full benefit of the contract and, therefore, cannot be permitted, in an action foundеd upon it, to question its validity. The principle of estoppel upon which this rule stands has been recognized and applied in a unifоrm course of recent decisions by this court, and there is no feature in the present case which requires a renewed discussion of the subject.
(Whitney Arms Co.
v. Barlow,
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.