Volume 183 — New York Reports

to pay to the respondent herein a sum of money remaining in his possession out of an award made in the above-entitled proceeding to one Margaret Stonebridge. The nature of the proceeding and the facts, so far as material, are stated in the opinion. The Special Term had no power to make the summary order that was affirmed by the final order of the Appellate Division now under review.

The nature of the action and the facts, so far as material, are stated in the opinion. Taxes are directed by the charter of the city of Rochester to be levied upon the lands in said city, and, therefore, are liens npon the lands against which they are assessed. They are also specifically made liens upon lands by the act of 1903.

This action was brought to restrain the defendant from erecting an apartment house upon premises owned by him situate on the southwest corner of 145th street and St. Nicholas avenue in the city of New York. Either party owns land nearly adjacent to that of the other and on the same block. There is a four-story dwelling designed for but one family standing on the land of the plaintiff, while the premises of the defendant are vacant.

<p>1. Appeal — When Judgment Entered upon Short Decision Not Warranted by Finding Contained Therein. Where, in an action to restrain the building and operation of an electric street railway in front of plaintiff’s premises upon the ground that she was the owner in fee to the center of the street and that her title thereto had never been acquired by the defendant, the only finding made by the trial court, in a decision in the short form under section 1032 of the Code of Civil Procedure (before its amendment in 1903), is that the plaintiff is the owner in fee of the land mentioned in the complaint, describing it by metes and bounds, one of which is the street in front of the premises, but is silent upon the question whether the plaintiff’s title extends to the center of the street or not, the judgment dismissing the complaint, entered upon such finding, must be reversed for two reasons: If the silence of the court upon the question of plaintiff’s title to the street is to be regarded as a failure to pass thereon, the judgment is erroneous because the plaintiff is entitled to have the question decided and to have the grounds of the decision concisely stated; if, on the other hand, the finding of the description in lime verba is to he treated as the equivalent of a finding that the plaintiff is the owner in fee to the center of the street in front of her premises, subject only to the easement of the public therein, then the judgment is unauthorized because the conclusion of law upon which it rests is irreconcilable with the fact found.</p> <p>2. When Rule That Coukt of Appeals Must Assume Facts Necessary to Support Judgment Entered upon Short Decision Does Not Apply. The rule, that when'a judgment entered upon a short decision has been unanimously affirmed by the Appellate Division, the Court of Appeals is bound to assume that the trial court found all the facts warranted by the evidence and necessary to support the judgment, has no application where, as in this case, the judgment is unwarranted by any aspect of the finding contained in the decision.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme. Court in the second judicial department, entered December 1, 1904, which reversed an interlocutory judgment entered upon an order of Special Term sustaining a demurrer to the answer and overruled such demurrer. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in 'the third 'judicial department, entered July 7, 1905; which dismissed an appeal from an order of the Ulster County Court reversing an order of the City Court of Kingston awarding the petitioner possession of certain real property. This is a summary proceeding to recover the possession of certain real estate situated in the city of Kingston.

The facts, so far as material, are stated in the opinion. At common law the property of the municipality was not taxable. (People ex rel. Mayor v. Assessors, 111 N. Y. 509; City of Rochester v. Rush, 80 N. Y. 302.) The General Tax Law of 1896 did not affect the special provisions applicable to New York city.

An application was made to a justice of the Supreme Court by William B. IIearst, John Ford and James G. Stokes, respectively, candidates for the offices of mayor, comptroller and president of the board of aldermen of the city of New York, upon the Municipal Ownership ticket, at the general election, held November 7th, 1905, for a peremptory writ of mandamus directing a re-count of the ballots cast.

<p>1. Mechanic’s Lien — Dynamite, Used in the Grading and Construction of a Railroad, Is a “ Material ” within the Meaning of the Lien Law (L. 1897, Oh. 418, § 3). Dynamite, furnished to and actually used by a sub-contractor for the purpose of blasting rock and breaking up earth in excavating for the grading and building of the roadbed of a railway, is a material within the meaning and contemplation of section 3 of the Lien Law (L. 1897, ch. 418), which provides that, “ A contractor, sub-contractor, laborer or materialman, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, shall have a lien * *</p> <p>2. Same—Mechanic’s Lien May Be Obtained against Railroad for Material Used in Construction Thereof — Meaning of Term “Real Property” as Defined in Section 2 of the Lien Law. A lien may be acquired against a railroad corporation for materials furnished and used in the construction of its railroad, since it is a fair construction of sections 2 and 3 of the Lien Law, when read together as component parts of one law, that any of the persons designated in the latter section may acquire a lien for the purposes therein named, and tlnit the term “real property ” shall not only include real estate, lands, tenements, hereditaments, corporeal and incorporeal, and fixtures, but, also, and in addition thereto all bridges and trestle work and structures connected therewith for the use of railroads. The use of the words, “and a.l bridges and trestle work and structures connected therewith for the use of railroads,” in section 2, for the purpose of defining the term “real property,” denotes a legislative intent to enlarge, rather than restrict, the statutory meaning of that term as applied to the subject of mechanics liens, thereby removing the structures there mentioned from the realm of uncertain classification and placing them unmistakably in the category of real property.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 20, 1905, which affirmed an order of Special Term granting in part and denying in part a motion for a temporary injunction.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff is entitled to recover under the complaint for the wrongful act of the defendant by whatever name it may be called, whether negligence, nuisance or trespass. The defendant did a wrongful act which injured plaintiff.

. Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1904, which reversed a judgment in favor of plaintiff entered upon a- verdict and an order denying a motion for a new trial and granted a new trial.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July Y, 1905, tvhicli affirmed an order of Special Term granting a motion for an injunction pendente lite.

The date when the defendant is alleged in the indictment to have committed the crime of abducting Katie Garfinkel, a female under the age of 18 years, for the purpose of prostitution, is May 17, 1904. TJpon the trial a serious question of fact arose out of discrepancies and conflict in the testimony of the witnesses for the People as to whether the complainant was within the age required by the statute in order to make the act charged a crime.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 27,1904, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 7,1-903, reversing a judgment in favor of plaintiff entered upon a decision óf the court on trial at Special Term and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 29, 1905, which affirmed an order of Special íerni confirming the proceedings of the respondents herein in assessing property of the petitioner for the purpose of taxation and dismissed a writ of certiorari to review such proceedings.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 29, 1904, which affirmed an order of Special Term confirming the proceedings of the respondents herein in assessing property of the petitioner for the purpose of taxation and dismissed a writ of certiorari to review such proceedings.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 11, 1904, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered-July 28, 1904, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.</p>

15, 1904, upon an order reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a dismissal of the complaint.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 29, 1904, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 6, 1904, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second-judicial department, entered March 12, 1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme ■ Court in the fourth judicial department, entered March 16, 1901, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at an Equity Term and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 19, 1904, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and ' granting a new trial.</p>