Borst, J.
This action was brought by the plaintiff in ejectment to recover from the defendant certain *602lands situate in Warren county. An answer was interposed denying plaintiff’s title and asserting title in the defendant. Thereupon and in February, 1905, i he then forest, fish and game commissioner, purporting to act for the plaintiff, entered into a written agreement with the defendant that the claims of title to the lands involved be settled; that defendant should take judgment dismissing the complaint and adjudging that defendant was the owner of the lands in question and that the defendant should deliver to the plaintiff a deed of the lands described in the complaint reserving to the defendant the right to enter upon a part of the lands for a period of ten years and cut and remove therefrom the soft wood timber eight inches and above in diameter and that the defendant should also convey, subject to a similar reservation, a certain other parcel of land to the plaintiff. Thereupon, pursuant to the agreement, the deeds were delivered to the plaintiff, who went into possession of the property and has since paid the taxes thereon, the defendant removing the soft wood timber. The amount of this does not appear. However as the tract is a large one and the amount of timber was a subject of consideration by the parties, it must have been a substantial amount. The judgment Avas entered in 1905 and conveyances made to the plaintiff by the defendant in conformity with the agreement. Defendant now moves to'set aside the judgment and agreement and the stipulation made by the attorneys in the action stipulating for its discontinuance.
In a similar action between these parties affecting lands in Essex county, a judgment entered on a similar agreement was, on plaintiff’s motion, set aside and vacated on the ground that the forest, fish and game commissioner had no authority to enter into the agreement and that it did not bind the state. The Court *603of Appeals in People v. Santa Clara Lumber Co., 213 N. Y. 61, held that a judgment entered in an action under circumstances similar to those entered into in this action did not bind the state and that the state was not estopped against maintaining an action to have the judgment and the agreement on which it was entered vacated and set aside and that such agreement and such judgment were void. United States v. Lee, Wilson & Co., 214 Fed. Rep. 630, 651, previously decided; People v. Witherbee, 178 App. Div. 368.
It is urged on behalf of the defendant that as the judgment is void it should be vacated; that it does not bind either party; that a judgment entered under a similar agreement having been vacated the defendant is entitled to the same relief as that accorded the plaintiff in the other action in which the parties herein were parties.
While the judgment entered pursuant to the agreement is void and cannot be used as evidence for or against either party, yet the question presents itself whether the defendant having accepted the provisions of the agreement giving it. the right to remove the timber from the land may now have the judgment vacated. 23 Cyc. 897. The parties stand in different situations before the court on this application. The judgment is void as declared by the Court of Appeals in the Santa Clara Lumber Co. case as to each party and does not estop either party from questioning it when it is sought to assert a right under it. But the position of the parties is different when they ask for relief such as.is now sought. On behalf of the defendant, the judgment was entered by authority and it has taken the fruits of such judgment. It may not now be heard to ask to have the agreement and judgment vacated under which it acted and had authority to enter into.
*604In 2 Black on Rescission and Cancellation (§ 608, p. 1404) it is said: “A party to a contract may be estopped from urging Ms discharge from liability on it by reason of the other’s want of authority to make it. And the assertion of a claim founded on the contract, or the retention of a right or benefit accruing under it, is such an acquiescence in the situation as will estop the party from afterwards seeking to rescind it ” (citing Pancoast v. Travellers Ins. Co., 79 Ind. 172, 178), in which numerous authorities are cited in support of the proposition. The rule thus stated is, it seems to me, sound and should control this motion. The motion is therefore denied, with ten dollars costs.
Motion denied, with costs.