Volume 128 — New York Reports

Upon the trial the court directed a verdict in favor of plaintiff upon consent of the parties, reserving the right to set aside the verdict and to dismiss the complaint upon a motion to be made for that purpose, which was made and granted. This action was brought to recover damages for the conversion of certain personal property described in the complaint.

This action was brought to recover damages for injuries sustained by plaintiff while a passenger on one of the defendant’s cars through its negligence. The facts, so far as material, are stated in the opinion. The exception to the denial of the motion for a nonsuit was well taken.

This was an action to recover the balance of an indebtedness for services rendered. The defense of payment by check was interposed. The facts, so far as material, are stated in the opinion. The plaintiff was guilty of loches in dealing with the Woodruff check when he accepted the check he assumed the duty of causing proper demand of payment to be made, and notice of nonpayment to be duly given to the defendant as indorser.

<p>A bank receiving commercial paper for collection is, in this state, in the absence of a special agreement, liable for a loss occasioned by the default of its correspondents or other agents selected by it to make the collection.</p> <p>Where the sub-agent makes the collection, but fails to pay over the proceeds and is insolvent, the insolvency does not shield the collecting agent from liability for the loss.</p> <p>Judicial expositions by a court of another state of rules of the common law applicable to commercial transactions, do not bind the courts of this, state.</p> <p>Plaintiff, a banking corporation organized and doing business in the city of New York, in the usual-course of business, sent to defendant, a similar corporation doing business in the city of Memphis, a check drawn upon a Texas bank for collection. Plaintiff had for two years been accustomed to send commercial paper to defendant for collection, including paper payable in Texas. Defendant received the check, indorsed it for collection and forwarded it to A. &L., its correspondents in Texas, who were bankers in good standing. A. & L. collected the check and remitted to defendant their sight draft for the amount drawn by them upon a firm in New York city. Defendant received the draft and forwarded it to a New York bank for collection. Said bank presented it to the payors; they had suspended payment and payment was. refused. The draft was accordingly protested and returned to defendant; the latter mailed it to plaintiff, but plaintiff refused to accept it. In am action to recover the proceeds of the check, held, that plaintiff was entitled to recover.</p> <p>Defendant claimed the contract was a Tennessee contract, and that under the law of Tennessee it was not liable. For the purpose of showing the-law of that state, it put in evidence a decision of the Supreme Court in that state not based upon a statute, but upon the principles of common law supposed to be applicable to the facts in that case. Held,,that the-decision was not binding upon the courts of this state. /</p> <p>It did not appear how or in what manner the contract between the parties, was made. Held, the claim that the contract was a Tennessee contract was not sustained; that, in the absence of proof, it could not be assumed the contract was made in Tennessee, nor could it be regarded as a Tennessee contract for the reason that itiwas to be performed there; as, so-far as the check was concerned, the performance was to be in Texas and New York.</p>

This action was brought to set aside an assignment by the firm of O. EL Wood & Co., and an assignment by each of two of the members of said firm, on the ground of certain alleged fraudulent preferences in favor of the wives of said members. The facts, so far as material, are stated in the opinion.

This was an action upon two promissory notes given by defendant, for goods sold and delivered to him, to the trustees of the Mill River Button Company, who prior to such sales, had become trustees of said company under a liquidation agreement. Further facts are stated in the opinion. The demurrer does not raise the objection that the counter-claims are not of the character specified in section 501 of the Code of Civil Procedure.

The nature of the action and the facts, so far as material, are stated in the opinion. Lands taken for public highways are not taken in fee, but an easement or right of passage alone vests in the public, the fee in the land remaining in the adjoining owners. As a consequence, a sewer is an additional burden imposed upon a highway, for which additional compensation must be made to the adjoining owners.

<p>In an action for the foreclosure of a mortgage it appeared that $55,000, the amount to secure which the mortgage was given, was by its terms, to be advanced to the mortgagors in seventeen specific installments, dependent upon different stages of the work of constructing a building upon the mortgaged premises, which was to be the chief security for the loan. When the advances amounted to about $40,000 a lien for materials furnished and services performed was filed. The mortgagees thereupon declined to make any further advances, and a contract was “then entered into by which the lienor agreed to subordinate its lien to the further advances called for by the mortgage, and the mortgagees agreed to pay said lien in specified proportions out of the fifteenth and sixteenth installments when they should be earned and become due, and they accepted an order upon them payable out of said installments when due. The mortgagors never earned or became entitled to-these installments, but the mortgagees advanced to them the amount secured by the mortgage, and $10,000 more, less the amount of the lienor’s claim, to be used in the prosecution of the work, under an agreement with said lienor that the claim should be paid out of said $10,000. The lienor was made defendant, but no personal judgment asked against it; it set .up its claim as a counter-claim and asked for a money judgment. The counter-claim was dismissed. A judgment of foreclosure and sale was ordered for the amount of the mortgage and interest, apd the surplus ordered to be brought into court. Held, no error; that the judgment was in accordance with and awarded only the relief agreed upon by the parties; that whatever claim said lienor might have it was not a permissable counter-claim (Code Civ. Pro. § 501.)</p> <p>Also Mid, that plaintiff’s objection to the counter-claim was not waived by the omission to demur or specifically object thereto by answer; that the provisions of the Code of Civil Procedure providing for such a waiver (§§ 498, 499), relate only to defects in the complaint and a waiver by the • defendant.</p>

The nature of the action and the facts, so far as material, are set forth in the opinion. Cotemporaneous wrongdoing is material and valuable evidence of the particular wrong charged. (Cary v. Hotaling, 1 Hill, 311; Bottomly v. United States, 1 Story, 135.) The counter-claim is not barred by the Statute of Limitations. (Code Civ. Pro. § 390; Olcott v. T. R. R. Co., 20 N. Y. 210; Rathbun v. N. C. R. Co., 50 id. 656.) This court has jurisdiction of the counterclaim.

<p>Under the provision of the Code of Civil Procedure (§ 2699), declaring that “before ancillary letters of administration are issued, the person to whom they are awarded must qualify in the manner prescribed for the qualification of an administrator upon the estate of an intestate, except that the penalty of the bond may, in the discretion of the surrogate, be in such a sum, not exceeding twice the amount which appears to be due from the decedent to residents of this state,” the power of the surrogate is not limited to requiring a bond not exceeding twice the amount appearing to be due to residents.</p> <p>Said provision was intended to give the surrogate a discretion to modify the general rule (§ 2667), which requires a bond in a penalty not less than twice the value of the personal property and to accept one less in amount if, by reason of adequate security having been already given, additional security for the protection of the general interests is not in his judgment required, or where the next of kin have consented to waive security, and in the case of domestic creditors, where their protection was the only interest involved, to prescribe a limit beyond which security should not be exacted.</p> <p>Where, therefore, adequate security to protect the general interests had not been given, and other interests aside from those of domestic creditors were involved, held, that the surrogate had power to require as a condition of granting ancillary letters, a bond in the penalty of double the value of the personalty in this state.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The orders are appealable, as the motions were made on the ground that the affidavits on which the attachments were granted contain no evidence that the defendants had fraudulently disposed of property.

The nature of the action and the facts, so far as material, are stated in the opinion. On August thirteenth, Garrison had not complied with the terms of the contract, to purchase rails deliverable in San Francisco at as early a date as reasonably practicable, and on that day as he admitted, he had broken the contract.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 26, 1891, which reversed an order of Special Term confirming the report of commissioners appointed to appraise damages, vacated the same and directed a new appraisal.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>This appeal is expressly authorized by the Code. (Code Civ. Pro. §§ 190, 1361; Goodell v. Jackson, 20 Johns. 693-721; Betsinger v. Chapman, 88 N. Y. 487-495; People v. Bell, 4 N. Y. Supp. 869, 870; State v. Stockley, 45 Ohio St. 304-308; In re P. P. & C. I. R. R. Co., 85 N. Y. 497, 498; In re N. Y., W. S. & B. R. R. Co., 94 id. 287-291.) An appeal from this order to this court will lie for the reason that the General Term reversed the order confirming the report and appraisement, upon a ground which they were without power to consider. (In re U. L. R. R. Co., 112 N. Y. 61; H. R. T. Co. v. W. T. & R. Co., 121 id. 897; Ziegler v. Chapin, 43 Alb. L. J. 398.) The statute of 1887 (Chap. 723) is a constitutional and valid exercise of legislative power. (Louisiana v. Mayor, etc., 109 U. S. 285; Chase v. Curtis, 113 id. 452; Dartmouth College v. Woodward, 4 Wheat. 518; Fletcher v. Peck, 6 Cranch. 87; Garrison v. City of New York, 21 Wall. 196. It cannot be held that by virtue of the consummation of proceedings for condemnation and the opening of the boulevard, under the original statute, vested or contracted rights, of the nature contended for, were acquired. (Chitty on Cont. 87; Freeland v. Williams, 131 U. S. 405; Nelson v. Parish, 111 id. 716; People v. French, 1 Abb. [N. C.] 419; Cooley on Const. Lim. 358.) The opinion of the General Term is not based upon sound principles. (Redf. on Railways [5th ed.], § 17; Wood on Railways, § 5; Beach on Railways, § 23; Spofford v. S. B. R. R. Co., 4 N. Y. Supp. 388.) The contract which the General Term evolves from the act of 1867, is one which the legislature has no power to make. (Const. N. Y. art. 1, § 7.) The right of eminent domain is an inherent attribute of sovereignty. Constitutional provisions do not confer the right, although they generally surround its exercise with safeguards to prevent abuse. (Cooley on Const. Lim. 356, 357, 386; Kohl v. United States, 91 U. S. 367, 371; Searl v. School District, 133 id. 553; People v. Kerr, 27 N. Y. 211.) If it be held that the provisions of the statute of 1867, are, in any sense, a contract which the legislature had power to make, then we respectfully submit that it is a limited and conditional contract, dependent upon a contingency which has never arisen; and which, by reason of the amendment to the Constitution in 1875, can never arise. (Const. N. Y. art. 3, § 18; Tucker v. Ferguson, 32 Wall. 527; H. B. M. & F. R. Co. v. S. B., etc., Co., 41 Hun, 553.)</p> <p>The order appealed from is not re viewable by the Court of Appeals. (Laws of 1884, chap. 252, § 1; Laws of 1850, chap. 140, § 18; Laws of 1876, chap. 198; In re D. & H. C. Co., 69 N. Y. 209; N. Y. C. R. R. Co. v. Marvin, 11 id. 276; In re N. Y., W. S. & B. R. R. Co., 94 id. 287; Crosby v. Stephen, 97 id. 606; Code Civ. Pro. § 1300; Bergen v. Carman, 79 N. Y. 151.) It was competent for the legislature by the act of 1867, under which the southern boulevard was laid out, to prescribe a measure of damages (upon a future condemnation by a railway company) more favorable to the property owners than would have prevailed at common law. (In re T. F. S. R. R. Co., 102 N. Y. 343; Lewis on Eminent Domain, § 373.) The act under which the southern boulevard was laid out, provided in substance that in the event of any rail or tramway being thereafter authorized upon it the owners of the roadbed should be compensated precisely as if the highway had not been imposed. (4 N. Y. Supp. 390.) When the condemnation under the act of 1867 had been effected, the provision for a special measure of compensation (upon a future condemnation by a railway company) became a contract between the state and the parties whose land was made servient to the highway. (Lahr v. M. E. R. R. Co., 104 N. Y. 291; Vandermulen v. Vandermulen, 108 id. 201; Story v. N. Y. E. R. R. Co., 90 id. 172.) The amendment to chapter 290 of the Laws of 1867 was unconstitutional and a nullity so far as it purported to change the measure of compensation established by that act, and in departing from that measure the commissioners committed an error that was fatal to their report. (Const. U. S. art. 1, § 10; Const. N. Y. art. 1, § 6; Stephens v. Marshall, 3 Chand. 229; B. C. R. R. Co. v. B. C. R. R. Co., 32 Barb. 364.) If appellant could now raise the question that the award of costs was improper, the point should be decided against it. (Code Civ. Pro. § 3240; In re N. Y., W. S. & B. R. R. Co., 94 N. Y. 294.)</p>

<p>Appeal from order of the General Term of the Court of Common Pleas of the city and county of New York, made November 10,1890, which denied a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The matter now in suit is res adjudicata. (Griffin, v. L. I. R. R. Co., 102 N. Y. 449; Pray v. Hegeman, 89 id. 351.) The omission of the plaintiff in the first action to state fully the time during which compensation should be payable to Springer and the admission in the answer of the partial statement actually made is unimportant. (Cowing v. Altman, 79 N. Y. 167; Teall v. E. L. Co., 119 id. 654.)</p> <p>The judgment in the Supreme Court action is no bar to the plaintiff’s claim here, and is not res adjudicata as against the plaintiff upon the question as to what his agreement was with Julius Bien & Conxpany, so far as it affects this action. (Campbell v. Consalus, 25 N. Y. 613; People v. Johnson, 38 id. 63; Stannard v. Hubbell, 123 id. 520.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The burden of proving defendant’s negligence is on the plaintiffs.

Appeal by the defendant Johann Most from an order -of the general term of the supreme court of the first department, affirming a judgment of the court of general ¡sessions of the peace entered upon the verdict of a jury convicting him of a violation of subdivision 3, section 451 of the Penal Code, which reads as follows: Whenever any three or more persons, “ being assembled, attempt or threaten any act tending towards a breach of the peace, ór injury to person or property,…

Cross-appeals from, judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made May 4, 1891, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. This action was brought to recover salary alleged to be due the plaintiff as an inspector of masonry on the new aqueduct for the city of Hew York during several periods of suspension.

<p>The word “wilfully” in the provision of the Penal Code (§ 639), delatingthat “ any person who wilfully or maliciously displaces, removes, injures or destroys * * * a pipe or main for conducting water oi-gas * * * is punishable by imprisonment," means not simply a voluntary and intentional act, which is in fact wrongful, but one done with a wrongful purpose, with a design to injure another, or from mere wantonness or lawlessness.</p> <p>In an action for malicious prosecution plaintiff’s, evidence showed these facts: Tinder a contract between defendant and the Brooklyn park commissioners for a supply of' water to Prospect park, defendant’s water-pipes were connected with certain mains belonging to the city, and under the control of the commissioners. By the contract the commissioners were authorized to terminate it and disconnect the pipes in case of failure of' defendant to furnish water as agreed, on giving six months’ previous notice. The commissioners caused a written notice to be served on defendant that they had annulled the contract because the defendant “ had not performed the conditions ” thereof, and were about to cut the connections. The next day, by written order given to plaintiff, who was in the employ of the commissioners, he was directed to disconnect the pipes; while engaged executing the order defendant protested and threatened to imprison him if he continued the work. He, however, completed it, doing the work in a proper manner and so as not unnecessarily to- injure defendant’s pipes. Defendant, who knew that plaintiff acted] under the order of the commissioners, thereupon presented a verified complaint to a magistrate, under the Penal Code (§ 639), charging that plaintiff “ did commit a misdemeanor by maliciously and wilfully cutting the water-main;" it did not disclose the relation of plaintiff to the commissioners or the circumstances under which he acted. Plaintiff was thereupon arrested and brought before a magistrate. Upon the proceeding being adjourned defendant insisted that plaintiff should be “locked up.” The proceeding was terminated by plaintiff’s discharge. Held, that the evidence- authorized the submission of the questions of probable cause and malice to the jury; that when defendant applied for the warrant he was chargeable with knowledge that in obeying the direction of the- park commissioners, plaintiff did not “ maliciously and wilfully " disconnect the pipes as charged,</p>

<p>In an action brought by the attorney-general, under the Code of Civil Procedure (§§ 1948, 1949), to try the title to certain elective offices in a religious corporation, the complaint demanded costs against the defendants, of whom there were ten, and that each of them be required to pay to the state a fine of §2,000, as authorized by the Code (§ 1956). It did not appear that the offices in litigation were of any value in themselves, or that there were any emoluments or pecuniary advantages attached to them. The complaint was dismissed and an extra allowance of §350 was made, based upon the ground that the complaint contained a claim of §20,000. Held, error; that the demand in the complaint that the defendants be fined was not a claim that could form the basis of an extra allowance; that the fine was not a part of the cause of action or claim, but a mere incident to success in the action, resting wholly in the discretion of the court, which, if plaintiff had succeeded, could have been imposed whether alleged in the complaint or not; and that by demanding it, plaintiffs did not engraft upon the complaint any element of a pecuniary claim within the meaning of that term as used in the provision of said Code (§ 3253), authorizing an extra allowance.</p> <p>No power is given under said provision to grant an extra allowance, except upon the basis of the value of the claim or subject-matter involved in the action and litigated directly, not incidentally.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s right to maintain an action in equity to enjoin the maintenance and operation of the defendants’ railway, and to recover damages to the inheritance by reason of the permanence of the structure, is barred by the ten years’ limitation contained in section 388 of the- Code of Civil Procedure. (Atwater v. Fowler, 1 Edw. 417; Ray v. Bogart, 2 Johns.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is not liable in this action for any diminution of the value of the use of the plaintiffs’ premises caused by the raising of the grade of a portion of Water street, and the construction and operation of its railroad thereon.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made December 12, 1890, which affirmed an order of Special Term denying a motion for a retaxation of costs.</p> <p>The plaintiff brought this action in the Supreme Court to recover damages for injuries to her real estate, and she recovered a verdict for thirty dollars. Both parties claimed the costs of the action and the clerk taxed them in favor of the plaintiff.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The only pleadings in this action are the complaint and the amended answer. (Code Civ. Pro. § 542; S. C. Bank v. Garlinghouse, 4 How. Pr. 174; Hinkley v. T. & A. R. R. Co., 42 Hun, 281; Kline v. Cary, 18 id. 524; Ostrander v. Conkey, 20 id. 421.) Ho claim of title to real property arises upon the pleadings in this action. (Code Civ. Pro. § 1645; Koon v. Mazuzen, 6 Hill, 45; Wickham v. Seeley, 18 Wend, 649; Crowell v. Smith, 35 Hun, 182; Bailey v. Daigler, 50 id. 538; Kelley v. N. Y. & M. B. R. R. Co., 18 id. 363; 81 N. Y. 233; Heintz v. Dellinger, 28 How. Pr. 39; Turner v. Van Riper, 43 id. 33; Burnet v. Kelley, 10 id. 406; Main v. Cooper, 25 N. Y. 180, 184; Dunster v. Kelley, 110 id. 558; Craven v. Price, 37 How. Pr. 15.) The defendant is entitled to costs of course in this action. (Code Civ. Pro. §§ 2514, 2862, 2951, 2956, 2957, 3228, 3229; Reilly v. Davies, 4 Santv. 722; Broughton v. Wellington, 10 Wend. 566; Sturgis v. Spofford, 58 N. Y. 103; Clow v. Van Loan, 4 Hun, 184; Adams v. Rivers, 11 Barb. 390; 6 Hill, 45; 18 Wend. 649.) The appellant’s objections before the clerk to the adjustment of costs for the respondent should have prevailed. (Turner v. Van Riper, 43 How. Pr. 33.) In any event the defendant is entitled to costs after the offer of judgment for seventy-five dollars, with costs to date, the recovery being but thirty dollars. (Code Civ. Pro. § 738; Magnin v. Dinsmore, 15 Abb. Pr. [N. S.] 331.) The orders of the Special and General Terms of the Supreme Court should be reversed, the judgment vacated, a new taxation of costs ordered, with costs and printing disbursements. (Jones v. Cook, 11 Hun, 230.)</p> <p>It was necessary for the plaintiff to allege as a substantive part of her action title in fee to the locus in quo. A “ claim of title to real estate arises upon the pleadings,” therefore, within subdivision 1, section 3228 of the Code of Civil Procedure, and the plaintiff is entitled to costs as a matter of right, independent of the amount of the recovery. (Edwards v. Noyes, 65 N. Y. 125; Code Civ. Pro. §§ 1665, 3228; O’Reilly v. Davies, 4 Sandf. 723; Niles v. Lindsley, 8 How. Pr. 131; Snyder v. Beyer, 3 E. D. Smith, 255; Burnet v. Kelly, 10 How. Pr. 406; Rathbone v. McConnell, 21 N. Y. 466; Squires v. Seward, 16 How. Pr. 478; Van Dusen v. Young, 29 N. Y. 9; Kelly v. N. Y. & M. B. R. R. Co., 81 id. 233; Cornell v. Smith, 35 Hun, 182; Kunster v. Kelly, 110 N. Y. 558; Glackin v. Zellar, 52 Barb. 147; Bradner v. Howard, 14 Hun, 421; 75 N. Y. 417; White v. Place, 40 Hun, 481; Sherry v. Cary, 111 N. Y. 514.) The offer of judgment in this case was for seventy-five dollars with costs to the date of the offer. Such an offer is a nullity, and confers no right to costs subsequently accruing, though the recovery be less than the amount offered. (Leslie v. Walrath, 45 Hun, 18; McFarren v. St. John, 14 id. 387; Riggs v. Waddell, 88 N. Y. 586.)</p>

The nature of the proceedings and the material facts are stated in the opinion. The complaint was the foundation of the proceedings against the respondent, and cannot be used as evidence nor to substantiate charges made against her. The complaint must be sustained by legal evidence.

The facts, so far as material, are stated in the opinion. In all eases where a judgment is wholly or partially paid, or where, for any reason, it is void, and it would be unjust and inequitable to collect it, the proper remedy is, by motion in the court in which it was rendered, either to vacate or cancel the judgment, or for a perpetual stay of execution.

<p>No public policy forbids the transaction of business in this state by a corporation formed in another state by citizens of this state for the purpose of transacting business here, or requires the exclusion from recognition by the courts of this state of such a corporation.</p> <p>The absence of terms imposed by the legislature as a condition of such a corporation doing business in this state, furnishes no ground for refusing to recognize it.</p> <p>The power rests with the legislature exclusively to say whether any, and, if so, what, terms shall be imposed upon such a corporation as a condition of its doing business here, and in the absence of any statute upon the subject and unless it appears that the corporation is formed to do acts prohibited by the laws of the state to its own citizens or corporations, if it is legally incorporated and entitled to recognition in the courts of the state where it was organized, it is entitled to recognition and protection in the tribunals of this state.</p> <p>In an action to recover damages for injuries received by plaintiff while using a toboggan upon a slide on premises in the possession and management of defendants, the complaint alleged that defendants were a joint stock company doing business in Hew York city under a name given, and that the injuries arose from the negligence of their employes. The answer denied these allegations. Upon the trial, plaintiff gave no evidence as to defendants being a j oint-stock company, but endeavored to prove a joint or partnership liability based upon allegations that the premises were leased to them for the purpose of putting up the toboggan slides. Defendants claimed that they were simply individual members of and stockholders in an incorporated company, which hired the grounds and operated the slides. They offered in evidence a certificate of incorporation of such company under the laws of West Virginia and also the Code of said state. These were objected to on the ground that the existence or incorporation of such company should have been pleaded. The objections were overruled. Held, no error; that the defense was not one necessary to be pleaded, but was admissible under the general denial in the answer.</p> <p>By said Code it appeared that such a corporation could be formed under the general laws of that state, and the certificate, which was in proper form and properly signed and sealed, showed that all the reqxxirements of the law had been complied with. Held, that the existence of an organization, so far valid as to entitle it to recognition as a corporation in the courts of this state and to transact business here, was proved.</p> <p>It appeared that a resident of Hew York acted as president of the corporation under a so-called election, although it did not appear how or when he was elected; also that another resident of Hew York acted as treasurer; that the company was in possession of the grounds, admission to which was charged, and the moneys paid went through the treasurer’s hands. Held, that there was sufficient evidence of user to show the company had accepted its charter.</p> <p>Under the Code of West Virginia, the certificate is evidence of the existence of the corporation; after the issuing of the certificate, the corporators named therein are required to appoint a time and place for a meeting of the stockholders to elect directors, make by-laws, etc.; directors of such a corporation are required to be residents of the state, unless by resolution passed by the corporation persons of another state are permitted to be directors. It did not appear that any such resolution was passed but it appeared that the corporators and directors were citizens of New York. íTeld, that the election of non-resident directors, without a by-law or resolution permitting it, would not ipso facto dissolve the corporation, or take away its corporate rights or franchises.</p>

The appellant claimed to recover against the state for personal injuries received from the falling of a bridge over the Oswego canal, in the work of repairing which, at the time, he was engaged. His regular employment had been that' of an ordinary laborer upon one of the state scows on the canal. The bridge had been reported to the canal commissioners, in the year previous to the accident, to be structurally unsound and in a very dangerous condition.

The nature of the action and the facts, so .far as material, are stated in the opinion. It was no error on the part of the justice to require the defendant to submit to trial in the Court of Special Sessions. (Laws of 1885, chap. 183, § 3; People v. Kennedy, 2 Park. 316; Hill v. People, 20 N. Y. 369; People v. Dutcher, 83 id. 243; Laws of 1886, chap. 593; Code Crim.

Also appeal from order of said General Term, made the-fourth Tuesday of November, 1890, which reversed an order of Special Term granting an extra allowance. The nature of the action and the facts, so far as material,, are stated in the opinion. The new corporation acquired all the property rights, privileges and franchises and assumed all the corporate duties, obligations and liabilities of its predecessors, as imposed by the general law of the state.

This was an action to compel the specific performance by defendant of a contract for the sale of real property. The facts appear in the opinion. Samuel Stillwell never conveyed the land in what was known as Stillwell’s road. The fee of the land is still in his heirs, subject, perhaps, to a right of way over the road. (Hussner v. B. C. R. R. Co., 96 N. Y. 18; Hall v. W. W. P. Co., 24 Wkly.

<p>Where land is conveyed to husband and wife without any express restriction as to the character of their holding, they take as tenants by the entirety.</p> <p>As such tenancy is founded upon the marital relation and upon the legal theory that the husband and wife are one, it depends for its continuance upon the continuance of the relation, and when the unity is broken by a divorce the tenancy is severed; each takes a proportionate share of the property as a tenant in common.</p> <p>There is no implied condition annexed to an estate by the entirety that the grantees shall remain faithful to the marriage vow, or that either shall not by misconduct cause a severance of the marital relations, and a decree of divorce granted because of adultery does not vest the whole title in the innocent party.</p>

This was an action of ejectment. The facts, so far as material, are stated in the opinion. By the deed of A. W. Thompson and his wife, Hiss Bitchie, in 1853, to Glover, no greater interest passed than the grantors possessed, i. e., the life estate as tenant by the curtesy.

report of a referee. This action was commenced in July, 1887, to foreclose a mortgage executed and delivered by the defendants to Reuben D. Hulbert, the plaintiffs’ intestate, on the 8th day of March, 1867. The mortgage, as stated therein, was given to secure the payment of eight promissory notes of $500 each held by Hulbert, all bearing the same date as the mortgage, and maturing at different times within nine months from their date.

This was an action upon an undertaking on appeal, of which the following is a copy: “N. Y. SUPREME COURT —KINGS COUNTY. “ Samuel McElroy, Respondent, against The Brooklyn Underground Railroad Company, Appellant. “ Undertaking on appeal from a judgment directing the payment of money. “ Whereas, on the twelfth day of December, 1887, in the New York Supreme Court, county of Kings, Samuel McElroy, the above-named respondent, recovered a judgment against The Brooklyn Underground…

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged contract by which the plaintiff was retained by the defendant’s intestate having been made subsequently to the intestate having been judicially declared a lunatic and the appointment of a committee of his person and estate, was absolutely void.

<p>Upon appeal from a judgment in favor of plaintiff in an action upon a contract, the General Term reversed the judgment, unless plaintiff consented to deduct therefrom a sum specified “ without prejudice to a future action to recover the same or any part thereof,” and in case of such consent, affirmed the judgment. Plaintiff consented, and the judgment as-modified was affirmed. Upon appeal by defendant, held, that plaintiff would not be heard to insist that the original judgment was correct, but it was to be assumed that it was erroneous, at least to the extent indicated; also that the court had no power to grant plaintiff the privilege to sue again to recover the amount deducted; and so that defendant was entitled to a reversal and new trial.</p> <p>The agreement upon which the action was brought was that 0., defendant’s testator, would pay all the debts allowed or legally established against the estate of S., plaintiff’s testator. Held, that the decree upon the judicial settlement of the accounts of S., to which accounting S. was made a party, was conclusive as to the amount of debts legally established.</p> <p>By the agreement 0. was to have the benefit of a mortgage belonging to the estate, or the proceeds, if any, after paying the legal and proper expenses and commissions in collecting the mortgage. A demurrer was interposed by the defendant to the complaint herein, which was sustained, with leave to plaintiffs to amend’. Upon the accounting plaintiffs were allowed the expenses of their unsuccessful defense to the demurrer, and these were allowed them herein as expenses of administration. Held, error: that while such expenses were properly allowed to plaintiffs on their accounting, as between the parties here they could not be regarded as expenses of administration.</p> <p>But held, that with this exception the decree was conclusive evidence as to what the proper and legal expenses of administration were.</p> <p>The decree was entered subsequent to the commencement of this action, and it allowed as necessary expenses of administration disbursements made by plaintiffs after the action was commenced. Held, that in order to prove such items by the decree, application should have been made by plaintiffs under the provisions of the Code of Civil Procedure (§ 544), for leave to permit them to make a supplemental complaint, alleging the entry of the decree as a material fact which occurred since the former complaint was made.</p> <p>By the agreement 0. further agreed to pay to L., one of the plaintiffs, " $3,000, in such manner as will be acceptable to her.” The referee allowed interest thereon from the date of the agreement. Held, error; that interest would not begin to run until a demand was made or a suit brought.</p>

This was an action of trespass. Plaintiff claimed title under two deeds of the state comptroller executed upon sales of lands, including the locus in quo, for non-payment of taxes. The facts, so far as material, are stated in the opinion. Defendants’ answer denying every allegation in the plaintiff’s complaint contained, except as hereinafter expressly admitted, stated or qualified, is bad in form and not authorized by the Code.

The nature of the action and the facts, so far as material, are stated in the opinion. To maintain a civil action for damages arising out of the commission of a crime the plaintiff must have sustained some damage not common to the public.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 23, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Whether chapter 325 of the Laws of 1888, appropriated money for local or private purposes only, is a question for the courts to determine. (In re D. C. Assn., 66 N. Y. 569.) Private property cannot be taken by. eminent domain for private purposes either with or without compensation. (S. M. Co. v. State, 104 N. Y. 562.) Chapter 325 of the Laws of 1888 is constitutional. (Const. art. 3, §§ 20, 21; art. 7, § 8.) The propriety or the necessity of taking private property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature, either by itself or by 'delegating the power to public agents in such manner and form as it may prescribe. (People v. Herrick, 21 N. Y. 595; Beekman v. S. & S. R. R. Co., 3 Paige, 73; Varick v. Smith, 5 id. 159; Bloodgood v. M., etc., R. R. Co., 18 Wend. 9; Haywood v. Mayor, etc., 3 Seld. 324; In re Townsend, 39 N. Y. 174; R. & S. R. R. Co. v. Davis, 43 id. 142; People v. Budd, 117 id. 25; Amy v. Watertown, 130 U. S. 319.) The appropriation made by chapter 525 of the Laws of 1888, so far as it provides for the improvement of the channel of Seneca river, and dredging and excavating Bear race, “ so as to admit the passage of canal boats therein from said canal,” is not, within the meaning of the Constitution, for a private purpose. (Head v. Amoskeag Manufacturing Co., 113 U. S. 19; In re Village of Middletown, 82 N. Y. 196; People v. McCann, 16 id. 58.) Neither is it a local act, within the meaning of the Constitution. (People ex rel. v. Bd. Suprs., 43 N. Y. 10; Healy v. Dudley, 5 Lans. 115, 120; Williams v. People, 24 N. Y. 405; People ex rel. v. Squires, 107 id. 593, 601; People v. Allen, 42 id. 378.) If the act of 1888 contemplated the taking of any waters by the state or of the land under the water, which belonged to the plaintiff, then the act is still valid. Ample provision has been made for compensation within the meaning of section 7 of article 1 of the Constitution. (Rexford v. Knight, 11 N. Y. 313; S. M. Co. v. State, 104 id. 562; Benedicts. State, 120 id. 228; Laws of 1883, chap. 205, § 13.) So far as Bear race is concerned, the court found that the defendants, Sweet, Mongin & Cook, were the owners thereof. Therefore, they could and did waive any constitutional objection that the act of 1888 made no provision for compensation as to them; and the plaintiff here cannot raise that question. (Town of Pierpont v. loveless, 72 N. Y. 211; Sinclair v. Jackson, 8 Cow. 543, 579; Baker v. Braman, 6 Hill, 47; In re Mayor, etc., 99 N. Y. 509.) As against this plaintiff, therefore, it cannot be said that either Sweet, Mongin & Cook, or the superintendent of public works had done anything or proposed to do anything with the waters of the Seneca river which could be held to be an unreasonable use thereof, or which was in violation of any right of the plaintiff in any view of the case. (Gould v. B. D. Co., 13 Grey, 443; Clinton v. Myers, 46 N. Y. 511; Bullard v. S. V. M. Co., 77 id. 525; Head v. A. M. Co., 113 U. S. 19; T. Co. v. Chicago, 99 id. 641; Atwater v. Trustees, etc., 124 N. Y. 609; People v. Tibbetts, 19 id. 523; People v. Carnal Appraisers, 33 id. 486; People v. N. Y. & S. I. F. Co., 68 id. 77.) If the plaintiff, by reason of the premises stated, has not or cannot suffer any actual damages by reason of the action of the defendants, and there is no finding of the court in this regard or to that effect, then of course, it is immaterial, so far as the plaintiff is concerned, whether the act of 1888 is unconstitutional or not. It has no special call to bring this suit. (Thompson v. Comrs., etc., 2 Abb. Pr. 250; People v. Canal Board, 55 N. Y. 390; Lord v. Thomas, 64 id. 107; Morgan v. Binghampton, 102 id. 500; Atwater v. Trustees, etc., 124 id. 609.) The conclusion of law that the plaintiff is entitled to all the surplus water which ran through the canal before the commencement of the enlargement of Bear race, not necessarily required for the purposes of navigation on the canal, is contrary to the settled law of this state. (Burbank v. Fay, 65 N. Y. 58.) An action of this kind is virtually an indirect action against the state, which cannot be maintained except by some statutory authority, submitting the state to the jurisdiction of the court. (Lewis v. State, 96 N. Y. 71; People v. Dennison, 84 id. 271; Carr v. United States, 98 U. S. 433; Cunningham v. M. & B. R. Co., 109 id. 446.) In construing the act of 1888, the rule, “ only when required by the most cogent reasons, nor indeed unless compelled by unanswerable grounds will a court declare a statute to be unconstitutional,” is applicable. (People v. Budd, 117 N. Y. 13.)</p> <p>The judgment ought not to have been granted against the superintendent of public works. (Mississippi v. Jackson, 4 Wall. 475; Gaines v. Thomas, 7 id. 347; Litchfield v. Register, 9 id. 575; Walker v. Smith, 21 How. [U. S.] 579; Thomas v. Com. of Canal Fund, 5 Abb. Pr. 248; Hartwell v. Armstrong, 19 Barb. 166; Lord v. Thomas, 64 N. Y. 197.) The improvement provided for by the act of 1888 is for public use. (Hills on Em. Domain, §§ 10, 11; Angell on Watercourses [7th ed.], 466; 16 Gray, 417; Clark v. Blackmore, 47 N. Y. 150; Beekman v. S. S. R. T. Co., 3 Paige, 45; Harris v. Thomas, 9 Barb. 359; Black v. M. R. R. Co., 18 Wend. 9; B. & N. Y. R. R. Co. v. Barnard, 9 N. Y. 595; Exporte Townsend, 39 id. 171; In re Fowler, 53 id. 60.) The act of 1888 was not a local act. (People v. N. P. R. Co., 86 N. Y. 7.) The exception to receiving in evidence the certified copies of the Assembly Journal and of the Senate Journal was well taken. (Code Civ. Pro. § 933.)</p> <p>Certified copies of the Assembly Journal and Senate Journal, showing that the act did not receive a vote of two-thirds of the members of either house of the legislature, were properly received in evidence. (Code Civ. Pro. § 933; Laws of 1888, chap. 325.) The plaintiff is entitled to all the surplus water which ran through the canal before the commencement of the enlargement of Bear race, not necessarily required for the purposes of navigation on the canal. (S. M. Co. v. People, 104 N. Y. 562.) Chapter 325 of the Laws of 1888; which appropriated certain moneys for the improvement of Bear race, is a local act, and not having received a two-thirds vote of each house of the. legislature, it is not constitutionally passed and is void. (Const. art. 1, § 9; People v. Allen, 42 N. Y. 378; Prentice v. Weston, 47 Hun, 21; People ex rel. v. Comrs., 54 N. Y. 276.) The effect of said act is to take the property of plaintiff for a private purpose, and for that reason also said act is unconstitutional and void. (Corning v. T. N. Factory, 39 Barb. 311; Holsman v. B. S. B. Co., 1 McC. 335; Mager v. Chadwick, 11 Ad. & El. 571; Ricard v. Williams, 7 Wheat. 59; Bowman v. Wather, 1 How. Pr. 189; White v. Chapin, 12 Allen, 511, 520; Hammond v. Zehner, 21 N. Y. 118; Cochrane v. Van Burlay, 20 Wend. 365 ; Powers v. Berger, 6 N. Y. 358; Taylor v. Porter, 4 Hill, 140.) The court had jurisdiction to restrain the superintendent of public works from proceeding under said act. (High on Inj. § 309; In re N. F. R. R. Co., 108 N. Y. 315; R. & S. Co. v. Davis, 43 id. 137; Tyler v. Beacher, 44 Vt. 648; Allen v. Jay, 60 Me. 124; Taylor v. Porter, 4 Hill, 147; Hay v. Cohoes Co., 3 Barb. 47; Wilkinson v. Leland, 2 Pet. 658; Varick v. Smith, 5 Paige, 159; Beekman v. Saratoga, etc., 3 id. 46; In re N. Y. C. R. R. Co., 66 N. Y. 407; M. F. Co. v. Mayor, etc., 4 Cald. 424; W. R. B. Co. v. Dick, 6 How. Pr. 547; Clark v. White, 2 Swan, 549; Gilmer v. Lime Point, 18 Cal. 229.)</p>

William. Reid became the purchaser at tax sales in the city of Albany of certain lands sold for the non-payment of taxes thereon, under the act, chapter 86 of the Laws of 1850, and he received the certificates of such sales and the deeds of the lands sold as provided in that act. The sales were made and the moneys paid by him between June, 1875, and June, 1883, both inclusive.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department entered upon an order made October 23,1890, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The Supreme Court had jurisdiction of this action. (Wager v. Wager, 89 N. Y. 161.) The Surrogate’s Court did not have jurisdiction to pass upon the validity of the contract, or the effect of the acts of Gilbert in presenting his claim against the estate and prosecuting it to judgment. (Van Sideren v. Lawrence, 14 N. Y. S. R. 412; Wright v. Fleming, 76 N. Y. 517; Stillwell v. Carpenter, 59 id. 425; Pettigrew v. Foshay, 12 Hun, 486; In re Giles’ Estate, 11 Abb. [N. C.] 57; In re Brown, 3 Civ. Pro. Rep. 39; In re Wagner, 22 N. Y. S. R. 208; In re Gloucester, 32 id. 901.) It was discretionary with the court to entertain this action, even if the Surrogate’s Court had jurisdiction. (Powell v. Denning, 22 Hun, 235.) Costs should not have heed imposed upon the plaintiff personally. (In re Groat, 15 Hun, 361; Hone v. DePeyster, 106 N. Y. 645; In re Deleplaine, 18 N. Y. S. R. 985.) Mismanagement of the estate furnishes no ground for liability for costs. (Code. Civ. Pro. § 3246; Jack, v. Robie, 15 N. Y. S. R. 607.) The estate of Thomas Yandevort was released from the legacies due to Gilbert and his family by the presentation of his claim against the estate, and its prosecution to judgment. (In re Hollister, 14 N. Y. S. R. 335; Brownson v. Gifford, 8 How. Pr. 387; Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 id. 306; Sackett v. Mallory, 1 Metc. 355; 4 Kent’s Comm. [9th ed.] 126; Hogeboom v. Hall, 24 Wend. 146; 21 Pick. 389.)</p> <p>The complaint did not state a cause of action. (Bowers v. Smith, 10 Paige, 193; Wager v. Wager, 89 N. Y. 161; Powell v. Demming, 22 Hun, 235.) The finding of fact “ that this action was not brought by the plaintiff in good faith, but upon a mere pretext that there was a necessity for obtaining a judicial construction of the will of Thomas Yandevort, deceased, etc.,” was clearly right, and should be affirmed. (Knox v. Jones, 47 N. Y. 389, 395; Abell v. Douglass, 4 Den. 305; 2 Kent’s Comm. [7th ed.] 429, 527; Story on Conf. of Laws, §§ 465, 474; Code Civ. Pro. § 2546.) The Surrogate’s Court, in which the former proceeding was pending, had unquestionable jurisdiction to hear, try and determine the question as to the right of the defendant, Gilbert M. Yandevort, and his descendants to take under the will after the presentation by him of a claim against the estate of Thomas Yandevort, or indeed any other question involving the construction of the testator’s will and necessary to be determined as an incident to the settlement of the executor’s accounts. (2 R. S. 95, § 71; Code Civ. Pro. §§ 2472, 2743; Steinell v. Oechler, 5 Redf. 312; Gill v. Brower, 37 N. Y. 459; Cushman, v. Horton, 59 id. 149; Teed v. Morton, 60 id. 502; McNultry v. Hurd, 72 id. 518, 521; DuBois v. Brown, 1 Dem. 317; Adee v. Campbell, 79 N. Y. 52; 14 Hun, 551; Tappen v. M. E. Church, 3 Dem. 187; Riggs v. Craig, 89 N. Y. 479, 492; In re Verplanck, 91 id. 439, 449, 450; Stevenson v. Short, 92 id. 433; Purdy v. Hayt, Id. 446, 450; In re Haxton, 102 id. 157; Wright v. Fleming, 76 id. 517; Stillwell v. Carpenter, 59 id. 425; Pettegrew v. Forshay, 12 Hun, 486; In re Giles’ Estate, 11 Abb. [N. C.] 57; In re Brown, 3 Civ. Pro. Rep. 39.) It is equally well settled that where the interference of two tribunals, having equal or concurrent jurisdiction is invoked, the jurisdiction must continue to be exercised by the court whose process is first issued. (Schuele v. Reiman, 86 N. Y. 270, 273; Travis v. Myers, 67 id. 542; Rogers v. King, 8 Paige, 210; Groshan v. Lyon, 16 Barb. 461; Lewis v. Maloney, 12 Hun, 207, 208; Porter v. Kingsbury, 13 id. 33, 37, 38; Ratzer v. Ratzer, 2 Abb. [N. C.] 461, 466; Vanderbilt v. Vanderbilt, 54 How. Pr. 250, 252: Whitney v. Monro, 4 Edw. Ch. 5; Seymour v. Seymour, 4 Johns. Ch. 409.)</p>

The nature of the action and the facts, so far as material,, are stated in the opinion. The referee’s findings are-conclusive upon this appeal. (Code Civ. Pro. §§ 993, 1023; Burnap v. Nat. Bank, 96 N. Y. 125; Thompson v. Bank, 82 id. 1; Groff v. Ross, 47 Hun, 152.) The only question then left for the referee was the question of damages, and this-was the theory upon which the case was tried and submitted to the referee.

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged judgment record shows that there was nothing offered to the Pennsylvania court as the basis of a judicial decision. It is in the nature of a inere memorandum by the clerk, and does not amount to a judgment.

made November 25, 1890, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. Upon the whole evidence the court erred in holding that as matter of law both the note and contract by indorsement were not Hew York contracts.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The taking of private property for the purpose of an elevated tramway of this description, is a taking for a public use within the principles established by the courts cf this and other states. (B., etc., R. R. Co. v. Brainard, 9 N. Y. 100; N. F. R. R. Co. v. De Veaux, 108 id. 221; Mills on Em.

The nature of the action and the material facts are stated in the opinion. The catching of suckers was within the prohibition of the statute. (Laws of 1879, chap. 534, § 23; Potter’s Dwarris on Stat. 128.) Where acts are in pari materia, if the same words be used in both statutes, a distinction made in one is a legislative exposition of the sense in which it is to be understood in the other.

The nature of the action and the facts, so far as material,. are stated in the opinion. It was error for the court to permit David S. Aldrich, an attorney and counsellor, to state the conversation that took place between plaintiff’s intestate and him, as the communications made to him were privileged. (Code Civ.

<p>An appeal to this court does not lie for the purpose of settling abstract questions, however important, but is allowed only where the party appealing has an interest in the controversy which has been injuriously affected by the decision below.</p> <p>A party seeking to have a judgment reviewed in this court must be able to point to some statute giving him the right and conferring jurisdiction.</p> <p>The executors and trustees under the will of T. brought an action for its construction, asking the court to determine which of two parties was entitled to a certain fund in plaintiffs’ hands as trustees. The judgment rendered decided the question, and this was acquiesced in by both of the alleged claimants to the fund, who were parties and were of age. Held, that as under the Code of Civil Procedure (§ 1294) the right to appeal is limited to “a party aggrieved,” and as plaintiffs were not aggrieved by the judgment within the meaning of said Code, they were not entitled to appeal.</p>

This action was brought to perpetually enjoin the defendants from operating their railway in Second avenue, between One Hundred and Twentieth and One Hundred and Twenty-first streets, in the city of Hew York, in front of the plaintiff’s premises, and to procure the structure already built there to be removed, and to recover from defendants the loss and damage already sustained by reasbn of the past operating of the defendants’ railway in front of the plaintiff’s premises;…

This was an action to restrain defendants from maintaining and operating their elevated railroad on Third avenue in front of plaintiff’s premises in the city of Eew York, and to recover damages. The judgment granted the injunction asked, unless defendants pay a sum stated as the value, and upon conveyance of the plaintiffs easements in the street taken by the road, in which case the injunction was denied. The facts, so far as material, are stated in the. opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants had a right to require that the court’s determination of the value of the easements should he upon legal evidence, and according to the rules of law. (Carter v. N. Y. E. R. Co., 25 J. & S. 279; S. A. R. Co. v. M. E. R. Co., 56 Hun, 182.) The question of “ fee damage ” was an issue of the trial.

<p>Appeal from order of the General Term of the Court of Common Pleas for the city and county of New York, made January 5,1891, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial.</p> <p>The plaintiff was the owner of four vacant lots of land at the corner of Ninth avenue and Seventy-seventh street, in the city of New York. He brought this action as an abutting owner, praying for an injunction restraining the defendants from maintaining and operating their road in front of his lots, and for damages caused to Ms lots, and for other relief. The trial court ordered judgment in his favor for the injunction prayed.for, provided, however, that the injunction should not issue until after sixty days from the entry of judgment, to enable the defendants to acquire his. easements in the street by condemnation proceedings, or by the payment of the sum of $8,000, the amount found to be the. full damages to the lots. Provided, also, that the injunction should be wholly inoperative unless plaintiff tendered a conveyance and release of his easements in the street appropriated by defendant, and it refused to accept the conveyance and pay the amount of damages so fixed. The court found no damage to the rental value of the lots prior to the judgment, and found that “ said premises would not be worth as much as they now are, had the said railway and stations not been built,” and yet he found that the fee of plaintiff’s real estate is diminished in value by the maintenance and operation of the road by the sum of $8,000, and to this finding the defendants excepted. The General Term reversed the judgment and ordered a new trial, as appears from the opinion there pronounced, without considering other alleged errors, on the ground that the findings of the court showed that the plaintiff’s real estate was not damaged by the defendants, and that the trial judge erred as to the damages.</p> <p>The maintenance and operation of the elevated road in front of plaintiff’s premises were not justified as to him by law, but constituted an unlawful interference with his right of property, and he was entitled to an injunction, whether he suffered pecuniary loss.or not; and the appellate court, therefore, erred in absolutely reversing the judgment. (Story v. M. E. R. Co., 90 N. Y. 122; Lahr v. M. E. R. Co., 104 id. 268; Drucker v. M. E. R. Co., 106 id. 158; Smith v. City of Rochester, 104 id. 674; Corning v. T. I. & N. Foundry, 40 id. 191; Webb v. P. M. Co,, 3 Sumn. 189 W. & B. C. Co. v. Swindon, L. R. [9 Ch. App.] 451; Lyon v. McLaughlin, 32 Vt. 425; Ward v. Warren, 82 N. Y. 455; Nicholls v. Wentworth, 100 id. 455; Lund v. City of New Bedford, 121 Mass. 268, 288, 290; Plumleigh v. Dawson, 6 Ill. 544, 551, 552; Blanchard v. Baker, 8 Me. 253; Chapman v. Thames Co., 13 Conn. 269; Crooker v. Bragg, 10 Wend. 260, 266; Ware v. Allen, 140 Mass. 513; Lawson v. Menasha, 59 Wis. 393.) The opportunity offered to the defendants to avoid the injunction by payment of a certain sum, was a mere act of grace on the part of the court, of which defendants were not bound to avail themselves. An error in computing that sum, therefore, was no ground for appeal on their part. (Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, 429, 430; 17 Hun, 344, 352; N. Y. N. E Bank v. M. R. R. Co., 21 J. & S. 511, 513; 108 N. Y. 660; Lawrence v. M. R. R. Co., 35 N. Y. S. R. 39; Welsh v. R. R. Co., 8 N. Y. Supp. 492; Carter v. R. R. Co., 25 J. & S. 279, 281; Eno v. M. R. R. Co., 24 id. 313, 318; Smith v. Rathburn, 75 N. Y. 122, 126, 127; Carll v. Oakley, 97 N. Y. 633, 635; Genet v. Davenport, 59 N. Y. 648; Bartlett v. Stinton, L. R. [1 C. P.] 483, 484; Radway v. Graham, 4 Abb. 468; Murphy v. Spalding, 46 N. Y. 559.) There was no error, however, in the determination of the Special Term as to the amount to be paid, and defendants were not entitled to any deduction for benefits. (Roberts v. Comrs., etc., 24 Kan. 247; Armstrong v. City of St. Louis, 69 Mo. 309; Francis v. Schoellkopf 53 N. Y. 152; Eagle v. Clearing, L. R. [2 C. P.] 638; Sanderson v. Pennsylvania, 102 Penn. St. 370; Marcy v. Fries, 18 Kan. 353; 1 Sedg. on Dam. 56; N. V. R. R. Co. v. McClure, 29 Ind. 536; Laws of 1850, chap. 140, § 16; Laws of 1885, chap. 606, § 21; S. A. R. R. Co. v. Kerr, 72 N. Y. 333.) Evidence was properly received by the trial court, to show the difference in the value of the plaintiff’s lots as they are, and their value as they would have been if the defendants’ road had not been built, for the purpose of fixing the compensation to the plaintiff for the easements taken by the defendants. (Jay v. Hopkins, 5 Den. 84; Clark v. Baird, 9 N. Y. 183; Robertson v. Knapp, 35 id. 91; Van Deusen v. Young, 29 id. 36; Argotsinger v. Vines, 82 id. 308; R. & S. R. R. Co. v. Budlong, 6 How. Pr. 467; 10 id. 289; N. Y., L. E & W. R. R. Co. v. Harnett, 27 Hun, 151; In re N. dk M. R. R. Co., 47 id. 489; People v. McCarthy, 102 N. Y. 639; Tallman v. M. E. R. Co., 121 id. 119.) The admission of evidence to show that this land was specially adapted to a valuable use, and that the railroad had destroyed such use, was proper. (Boom Co. v. Patterson, 98 U. S. 403; Chicago & E. R R. Co. v. Jacobs, 110 Ill. 414; C. R. Co. v. Moore, 124 id. 329; Galway v. M. E. R. Co., 13 N. Y. Supp. 47.) Even if the court had erred in the rulings as to the measure of compensation for the easements taken, the error would not be regarded, for the exclusion of the evidence could not have altered the result. (McGean Case, 117 N. Y. 223; Birch v. M. E R. Co., 8 N. Y. Supp. 325; Rooswell v. N. Y. E. R. R. Co., Id. 547; Werfelman v. M. R. Co., 11 id. 66; Kenlde v. M. R. Co., 62 Hun, 398.)</p> <p>The alleged special benefit to the plaintiff’s land and building from the elevated railroad cannot be set off against the value of that part of the easements of light, air and access belonging to the plaintiff which defendants have taken. (N. Y. N. E. Bank v. M. E. R. Co., 21 J. & S. 512; 108 N. Y. 660; Laws of 1875, chap. 606, § 20; Laws of 1850, chap. 140, § 16; Laws of 1872, chap. 885, § 3; Code Civ. Pro. §§ 3370, 3383; Laws of 1890, chap. 95; Story v. M. E. R. Co., 90 N. Y. 179; Lahr v. M. E. R. Co., 104 id. 269; 117 id. 448; S. A. R. R. Co. v. Kerr, 72 id. 333; Rockhill v. Nelson, 24 Ind. 424; Ewing v. Ewing, Id. 470; Van Winkle v. Constantine, 10 N. Y. 422; McMahon v. City of Cincinnati, 5 Ind. 413; Newcastle v. Brambach, Id. 543; Evansville v. Fitzpatrick, 10 id. 120; W. W. R. R. Co. v. McClure, 29 id. 536; Fred&rick v. Shane, 32 Iowa, 254; Bland v. Hixenburgh, 39 id. 532; Britton v. D., M. O. & S. R. Co., 59 id. 540; A. R. R. Co. v. Burkett, 42 Ala. 84, 89, 90; Shipley v. R. R. Co., 34 Md. 336; Tremont v. Whalen, 11 Neb. 585; Wagner v. Gage County, 3 id. 237; Paducah v. Stovall, 12 Heisk. 1; Woodfolk v. N. R. R. Co., 2 Swan, 422; E T. R. R. Co. v. love, 3 Head, 64; Memphis v. Bolton, 9 Heisk. 508; M. R. R. Co. v. McDonald, 12 id. 54; Mitchell v. Thornton, 21 Gratt. 164; James River v. Turner, 9 Leigh, 313; R. R. Co. v. Tyree, 7 W. Va. 693; R. R. Co. v. Foreman, 24 id. 662; Robbins v. Harrison, 6 Wis. 636; Neilson v. City of Chicago, 58 id. 516; Washburn v. City of Milwaukee, 59 id. 364; Brown v. Beatty, 34 Miss. 228; Penrice v. Wallis, 37 id. 172; New Orleans v. Moye, 39 id. 374; Comissioners v. Harkleroads, 62 id. 807; Whitehead v. Arkansas, 28 Ark. 464.) As the plaintiff was entitled to an absolute injunction against the defendants, the provision that on the payment of the sum fixed as the value of the plaintiff’s easements, the injunction should be avoided, was a grace or privilege to the defendants, and the defendants are not entitled to complain that the terms on which such a favor is given to them are higher than they think such terms should have been. (90 N. Y. 123, 179; 104 id. 269, 288; 123 id. 1; 34 N. Y. S. R. 876; 117 N. Y. 448; Smith v. City of Rochester, 38 Hun, 612, 615; 104 N. Y. 674; Corning v. T. I. & N. Factory, 40 id. 191; Lund v. City of New Bedford, 121 Mass. 286; Plumleigh v. Dawson, 6 Ill. 544, 551, 552; Blanchard v. Baker, 8 Me. 253; Chapman v. T. M. Co., 13 Conn. 269; Crooker v. Bragg, 10 Wend. 260, 266; Wilts & B. C., etc., Co. v. Swindon, L. R. [9 Ch. App.] 457; 7 id. 697; Ware v. Allen, 140 Mass. 513; Webb v. P. M. Co., 3 Sumn. 189; Hammond v. Zehner, 21 N. Y. 118; Nicholls v. Wentworth, 100 id. 455; Eckerson v. Crippen, 110 id. 585; Barnes v. Seligman, 55 Hun, 339; Bruce v. Welsh, 52 id. 524; Henderson v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 433; N. Y. N. E. Bank v. M. E. R. Co., 108 id. 660; Smith v. Rathbun, 75 id. 122, 126, 127; Carll v. Oakley, 97 id. 633, 634; Genet v. Davenport, 59 id. 648; Bartlett v. Stinton, L. E. [1 C. P.] 483; Pearce v. Chaplin, L. R. [9 Q. B.] 802.)</p> <p>The reversal at General Term was properly directed, because of the finding of the trial court that these premises are worth more than they would have been had the railway and stations not been built. (Bonnell v. Griswold, 89 N. Y. 122; Schwinger v. Rayrnond, 83 id. 192; Conselyea v. Blanchard, 103 id. 222, 231; Redfield v. Redfield, 110 id. 671; Genet v. D. & H. C. Co., 122 id. 505; Hart v. MacLaury, 121 id. 636; Elmhirst v. Spencer, 2 M. & G. 45, 50; Kensit v. G. E. R. Co., L. R. [23 Ch. Div.] 566, 573; Jeffers v. Jeffers, 107 N. Y. 653; Morgan v. City of Binghamton, 102 id. 500; T, etc., R. Co. v. H. T., etc., R. Co., 86 id. 106, 123, 126; People v. M. T. Co., 31 Hun, 596; Drake v. H. R. R. Co., 7 Barb. 508; Jerome v. Ross, 7 Johns. Ch. 315; Livingston v. Livingston, 6 id. 497; Newman v. M. E. R. Co., 118 N. Y. 618; Laws of 1882, chap. 410, § 970; Laws of 1854, chap. 384, §§ 3, 6-9; Genets. City of Brooklyn, 99 N. Y. 296; Rexford v. Knight, 15 Barb. 627; Newby v. P. Co., 25 Mo. 258; Helck v. Reinheimer, 105 N. Y. 470; J. R. Co. v. Turner, 9 Leigh. 313; Betts v. City of Williamsburgh, 15 Barb. 256; C. & P. R. Co. v. Francis, 70 Ill. 238; Young v. Harrison, 17 Ga. 30; Lewis on Em. Domain, § 470; 1 Redf. on Railways [6th ed.], 272; In re B. E. R. Co., 55 Hun, 165; Henderson v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 423; In re W. S. R. R. Co., 29 Hun, 609; T. & B. R. R. Co. v. Lee, 13 Barb. 169; U., etc., R. Co. v. Lee, 56 id. 456; B. R. R. Co. v. Barnard, 9 Hun, 104, 105, 106; In re N. Y. C. R. R. Co. v. Judge, 15 id. 63; In re N. Y., L. E. & W. R. Co. v. Arnot, 27 id. 151, 155 ; In re N. Y., L. E. & W. R. Co. v. Miller, 49 id. 542; Dupins v. C. & N. W. R. Co., 115 Ill. 97; Frederick v0. Shane, 32 Ia. 254; H. & N. R. Co. v. Dickerson, 17 B. Mon. 173; Whitman v. B. & M. R. R. Co., 7 Allen, 313; Memphis v. Bolton, 9 Heisk. 508.) The reversal at General Term was properly directed because of the express refusal of the trial judge to take into consideration any special or peculiar benefits. (Gross v. Plymouth, 125 Mass. 557; Hilbourne v. Suffolk, 120 id. 393; Donovan v. Springfield, 125 id. 373; Drucker v. M. R. Co., 106 N. Y. 157; McGean v. M. R. Co., 117 id. 219; Avery v. N. Y. C. & H. R. R. R. Co., 121 id. 31; P. & L. E. R. Co. v. Robinson, 95 Penn. St. 426; Hayes v. O., etc., R. Co., 54 Ill. 373, 375; Nicholson v. N. Y. & N. H. R. Co., 22 Conn. 74, 79; Cleveland & P. R. Co. v. Ball, 5 Ohio St. 568, 578; Payne v. Woods, 108 Mass. 160; Trinity College v. City of Hartford, 32 Conn. 452; Van Slyke v. Hyatt, 46 N. Y. 259; Leffler v. Field, 33 How. Pr. 385.) The reversal in this case was properly directed, for the error of the trial judge in admitting the opinions of witnesses, as to what this property would be worth if the railway were not there. (McGean v. M. R. Co., 117 N. Y. 219; Avery v. N Y. C. & H. R. R. R. Co., 121 id. 31; Starbird v. Barrows, 43 id. 200; Coleman v. People, 58 id. 555; People v. Fernandez, 35 id. 59; Foote v. Beecher, 78 id. 155, 157; Williams v. Fitch, 18 id. 546; Carroll v. Diemel, 95 id. 252, 256; Holcomb v. Holcomb, Id. 316, 329.) The reversal was properly directed, for the error of the trial judge in admitting evidence that the plaintiff’s land, had the railway not been built, might, have been used for fashionable private residences, whereas now it is only suitable for shops and flats. (Greene v. N. Y. C. R. R. Co., 12 Abb. [N. C.] 124; Filer v. N. Y. C. R. R. Co., 49 N. Y. 44; Caldwell v. Murphy, 1 Duer, 248; 11 N. Y. 416; Fetter v. Beal, 1 Ld. Raym. 339; Brown v. Howard, 4 Moore, 508; Angell on Lim. [6th ed.] 123; Howell v. Young, 5 B. & V. 259; Battley v. Faulkner, 3 B. & Ald. 288; Northrop v. Hill, 61 Bark. 136; Argall v. Bryant, 1 Sandf. 98; McKerras v. Gardner, 3 Johns. 137; Bank of Utica v. Childs, 6 N. Y. 238; Griffin r. Colver, 16 id. 489; Ehrgott v. Mayor, etc., 96 id. 264; 1 Sedg. on Dam. 38, 90, 144; Tallman v. M. E. R. Co., 121 N. Y. 119; S. A. R. R. Co. v. M. E. R. Co., 56 Hun, 182; Dorland v. R. R. Co., 46 Penn. St. 520.) The enactment of the condemnation law of 1890, so far from militating against the General- Term decision, is an additional and most cogent argument in its favor. (Endlich on Inter, of Statute, § 368.) Plaintiff was not entitled to an injunction, except to prevent actual appreciable injury. (MacLaury v. Hart, 121 N. Y. 636; Brush v. M. R. Co., 26 Abb. [N. C.] 73; Genet v. D. & H. C. Co., 34 N. Y. S. R. 247; Thomas v. M. P. Union, 121 N. Y. 45; Jeffers v. Jeffers, 107 id. 650; Campbell v. Seaman, 63 id. 568; Bigelow v. H. B. Co., 14 Conn. 565; Eastman v. A. M. Co., 47 N. H. 78; Kensit v. G. E. R. Co., L. R. [23 Ch. Div.] 566; City of New York v. Mapes, 6 Johns. Ch. 46; Jerome v. Ross, 7 id. 315.) But the judgment in this case is not one of injunction merely. Decrees or judgments like the one in this case have been generally by the lower courts given the effect of adjudications upon the question of the value of the easements taken by the railway company. (In re M. E. R. Co., 27 N. Y. S. R. 576; Henderson v. N. Y. C. & H. R. R. R. Co., 78 id. 430; Doty v. Brown, 4 N. Y. 71, 75; Smith v. Smith, 79 id. 334; Stephen on Evidence, art. 11n; S. A. R. R. Co. v. M. E. R. Co., 56 Hun, 182.) Plaintiff’s right is aright to use the equitable process of the court to compel the making of compensation, and not a right to recover specific real property, or the right to an injunction, irrespective of actual damage. (Pond v. M. E. R. Co., 112 N. Y. 189; N. E. Bank v. M. E. R. Co., 108 id. 418; Tallman v. M. E. R. Co., 121 id. 119; N. Y. E. R. Co. v. F. N. Bank, 135 U. S. 432; Henderson v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 424; Uline v. N. Y. C. &H. R. R. R. Co., 101 id. 98; Taylor v. M. E. R. Co., 18 J. & S. 311; People v. A., etc., R. Co., 24 N. Y. 261; Powers v. M. R. Co., 120 id. 128.) In the present case the facts are such that to grant an absolute injunction would be inequitable and unjust to the defendant and to the public. (1 Story’s Eq. Juris. § 28; Kerr on Inj. 43; Pom. on Spec. Perf. § 474; Russell v. Farley, 105 U. S. 433.) If the order of the General Term is reversed, the Special Term judgment should be modified by the insertion of equitable terms which the exigencies of this case require. (Story v. M. E. R. Co., 90 N. Y. 179.)</p>

Appeal by defendants, commissioners of taxes and assessments of the city of New York, from order of the General Term of the Supreme Court in the first judicial department, made Hay 15,1891, which affirmed an order of Special Term, vacating an assessment against the petitioner for personal property, and striking the assessment from the assessment-roll as illegal.

Appeals by defendant Nicola Trezza from two orders of the general term of the supreme court in the second department, entered July 2, 1891, which orders were : First, An order in the case of People v. Trezza, affirming an order denying an application for a stay of proceedings pending an appeal to the general term of the supreme court, from an order denying a motion made after judgment, for a new trial upon the ground of newly-discovered evidence.

<p>Defendant is a corporation organized under the act of 1881 (Chap. 589, Laws of 1881), for the purpose of erecting an apartment house. In the prospectus issued for the purpose of inviting subscriptions for the stock, it was stated that a subscription for seventy shares would entitle the subscriber to certain apartments without additional rent. By the by-laws adopted by the corporation, it was provided that ‘‘ all questions * * * as to how and to whom and at what rent the several apartments shall be leased, and as to the apportioning and distributing of the said apartments among the stockholders, shall be decided by the vote of the majority of the stock, and not otherwise.” Notwithstanding this, the directors adopted the prospectus, and in pursuance thereof a certain apartment was assigned to C., a subscriber. At a stockholders’ meeting thereafter held, at which plaintiff was present as the representative of a stockholder, the by-laws were read and changes were made in the plans greatly increasing the expenditures; plaintiff voted in favor of the change; he subsequently purchased C.’s stock and took possession of the apartment assigned to him, which he leased. At a stockholders’ meeting held thereafter, but before the stock was transferred to plaintiff on the books of the corporation, it was unanimously resolved that, in view of the increased expenditure, the capital stock should be increased, and that the stockholders should be charged ten per cent on the par of their stock as rent. Upon the transfer of the stock to plaintiff, he received a certificate for his proportion of the new shares, as well as for those purchased; he refused, however, to pay the rent, and when his apartment was vacated by his tenant, the corporation took possession and excluded him therefrom. In an action to recover possession, held, that plaintiff took his stock subject to the control of the stockholders as provided in the by-laws; that he had no legal title to the apartment, but simply an equitable right to it upon the conditions imposed by the stockholders’ meeting, and by rejecting those conditions he lost that right, and so, had no title upon which he could recover possession.</p>

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made July 7, 1891, which affirmed an order directing a peremptory writ of mandamus to issue to- defendant, Charles Straight, clerk of the village of Wellsburg, N. Y., commanding him forthwith and immediately to- administer to and file the oath of office of the relator as president of said village.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The relator was not entitled to a writ of peremptory mandamus. (High’s Ext. Leg. Rem. §§ 9, 10, 32; People ex rel. v. Bd. Suprs., 64 N. Y. 600; People ex rel. v. Wendall, 71 id. 171; People ex rel. v. Hoyt, 66 id. 606; People ex rel. v. McLean, 11 N. Y. Supp. 851; Johnson v. Lucas, 30 Tenn. 305; Lucas v. Mayham, 79 Mass. 83; People ex rel. v. Schiellim, 95 N. Y. 124; People v. Bd. Suprs., 12 Barb. 217; People v. Myers, 50 Hun, 479; People v. R., W. & O. R. R. Co., 103 N. Y. 95; People ex rel. v. Becker, 3 N. Y. S. R. 202.) Inasmuch as the peremptory writ was granted the court will take as true all the statements of fact of the opposing affidavits. (People v. R., W. & O. R. R. Co., 103 N. Y. 95; People ex rel. v. Fairman, 91 id. 385; People ex rel. v. Cromwell, 102 id. 477; Code Civ. Pro. § 2070; Milliken v. W. U. T. Co., 110 N. Y. 403.) The defendant is not obliged to administer the oath, even if the relator were legally elected. (People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58.) There was not and has not been at any time, before defendant, any evidence that the relator was elected. (Laws of 1870, chap. 291, §§ 16, 19, 20; People ex rel. v. Bd. Canvassers, 126 N. Y. 392; People ex rel. v. Seaman, 5 Den. 409; People v. Cook, 8 N. Y. 67; People ex rel. v. Ferguson, 8 Cow. 102; Kortz v. Bd. Canvassers, 12 Abb. [N. C.] 84; Clark v. Bd. Examiners, 126 Mass. 282; People ex rel. v. Dikeman, 7 How. Pr. 124; Johnson v. Lucas, 30 Tenn. 305.) The title to an office cannot be tested by either the peremptory or alternative writ of mandamus. (People ex rel. v. Parker, 117 N. Y. 86, 286; In re Gardner, 68 id. 467; Leeds v. Atlantic City, 52 N. J. L. 332; People ex rel. v. Ferris, 76 N. Y. 326; People ex rel. v. Suprs., 58 How. Pr. 141; People ex rel. v. N. Y. I. Asylum, 7 N. Y. S. R. 277.) It is only where there is a declaration or certificate of the inspectors of election showing that the claimant, upon the face of the facts, is entitled to the office, or, in other words, where nothing stands between him and his right to take the official seat, that the writ of mandamus will compel the administering of the oath. (Ex parte Heath, 3 Hill, 42; Ashley’s Case, 4 Abb. Pr. 35.)</p> <p>The appellant did not raise a question of fact. (Laws of 1870, § 5; Laws of 1874, chap. 628; People ex rel. v. McKinney, 52 N. Y. 347; Kessel v. Zeiser, 102 id. 114; People v. Collins, 7 Johns. 549, 551, 552, 553, 554; People ex rel. v. Assessors, etc., 52 How. Pr. 140; In re Williamsburg, 1 Barb. 34; People ex rel. v. Jennings, 6 Cow. 579; Ackley’s Case, 4 Abb. Pr. 35; People ex rel. v. Wilson, 119 N. Y. 517; People ex rel. v. Board, etc., 103 id. 541-543; West v. A. E. Bank, 44 Barb. 179; Wood v. Whiting, 21 id. 190-198; Marsden v. Sweet, 66 N. Y. 206-210; Powers v. R., W. & O. R. R. Co., 3 Hun, 285; Averill v. Day, 26 id. 319; Bailey’s Code Pleadings, 234.) The relator was entitled to have the oath of office administered to him for the reason that the return presumptively showed his election to the office, and the clerk, being a ministerial officer, had no right to decide otherwise. (People ex rel. v. Dean, 3 Wend. 438; People ex rel. v. Collins, 7 Johns. 594-553; Ex Parte Heath, 3 Hill, 43; Wilcox v. Smith, 5 Wend. 233; Ackley’s Case, 4 Abb. Pr. 36; People v. Hawkins, 46 N. Y. 10; People v. Nd. Suprs., 12 Barb. 217; Nichols v. McLean, 101 N. Y. 327.) The appellant having failed to object to the Special Term adjudication upon all the questions raised, whether of law or of fact, on the affidavits, is deemed to have consented to it so adjudicated. (People ex rel. v. City of New York, 39 Barb. 522-538; People v. Throop, 12 Wend. 187.) A vote cast for “Morris Young ” must be counted for “ Morris A. Young,” because the law knows only one Christian name. (People v. Cook, 14 Barb. 261-307; Recks v. Talmadge, 5 Johns. 84; Newton v. Porter, 69 N. Y. 1; Franklin v. Talmadge, 5 Johns. 84; People v. Cook, 8 N. Y. 67; People v. Ferguson, 8 Cow. 102; People v. Seaman, 5 Den. 409; People v. Pease, 27 N. Y. 85 ; People v; Smith, 45 id. 79.)</p>

The nature of the proceedings and the facts, so far as material, and the portions of the Special Term order in question are stated in the opinion. The proceeding is a statutory one, and unless the statute is fully complied with, there is no jurisdiction. (29 Hun, 449; Code Civ. Pro. § 2433; Sharp v. Spier, 4 Hill, 76; In re Hall, 72 N. Y. 184; Bloom v. Hendrick, 1 Hill, 130; In re Dubois, 15 How.

The plaintiff recovered a judgment in a Justices Court for thirty dollars damages, .besides costs. From that judgment the defendant appealed to the County Court, demanding a new trial, and within fifteen days after the service of the notice of appeal caused a written offer to be served upon the plaintiff allowing judgment to be entered against him in the County Court for five dollars. The plaintiff did not accept the offer, and made no offer to the defendant.

This action was brought to recover damages, arising from the interference with plaintiffs’ easement in a street in Yew York city, by the construction and maintenance therein of an elevated railroad by defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial judge erred in permitting the plaintiff to recover damages for the time during which he was out of possession.