Volume 41 — New York State Reporter

<p>1. Mechanic’s lien—Contract.</p> <p>In an action to foreclose a mechanic’s lien one D., who was the son of one plaintiff and the brother of the other, and was the architect who drew the plans and specifications, testified that he acted for plaintiffs in making the contract for the building and that plaintiffs did the work. It also appeared that defendant had drawn a check on account of the work to the order of plaintiffs. Held, that a finding that the contract was with the plaintiffs was proper.</p> <p>2. Same—Performance.</p> <p>On the completion of the work plaintiffs offered to perform any work which defendant wished to complete the contract, but defendant refused tó point out any work unfinished. Held, that this showed a substantial performance of the contract.</p> <p>3. Same—Consent op owneb.</p> <p>Where the owner of the property lives within thirty feet of the building, sees it in course of erection, and gives her own check on account thereof, this is sufficient to justify a finding that the work was done with her consent.</p> <p>4. Same—Notice.</p> <p>The fact that the notice of lien states that both defendants owned the premises in question, when in fact it was owned by only one, does not impair the validity of the lien.</p> <p>5. Same—Findings.</p> <p>Counsel for plaintiffs submitted findings of fact and conclusions of law, which the judge adopted as his decision and signed at the foot. Held, a sufficient compliance with § 1022‘of the Code.</p>

Appeals by various parties from a decree of distribution made by the surrogate of the county of Mew York. The following are the opinions of the referee and surrogate referred to in the opinion of general term.

<p>Appeal from order of surrogate assessing collateral inheritance tax.</p>

<p>1. Railroad—Elevated—Title by prescription—Adverse possession.</p> <p>Where the original entry by defendant upon the street in front of plaintiff’s premises was temporary and experimental, and even after the certificate of the commissioners remained such, in fact, while operated as a cable road and ended in practical failure, and the original possession was in ignorance of the right at a later period claimed on one side and denied on the other, and the only possession for twenty years was of an unseparated and inseparable fragment of two essentially different users; and after twenty years defendants instituted proceedings for the condemnation of the plaintiff’s street rights, the court is justified in refusing to find an adverse possession.</p> <p>2. Same —Measure of damages—Noise of passing trains.</p> <p>Although an elevated road is liable in an action at law for the wrong done to abutting owners by the noise of passing trains, where no trespass and no wrong is in any manner involved, and the sole inquiry respects the compensation to be awarded to an owner whose property is to be rightfully taken under due authority of law, the noise of the operation of the trains should not be taken into account as an element of fee damage. (Ruger, Oh. J., Peckham and O’Brien, JJ., dissent.)</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming judgment for $314 in favor of plaintiff, for a balance due upon a contract for glazing, amounting to $875, for which plaintiff had a mechanic’s lien upon eight houses, upon the foreclosure of which said judgment was obtained.</p>

<p>1. Constitutional law—Laws 1889, Chap. 291.</p> <p>Chapter 291, Laws 1889, is not unconstitutional as leasing or disposing of the Erie canal. It operates merely as a license to the city of Syracuse to take surplus water from the Skaneateles lake and conduct it to the city under the paramount right of the state to resume it at any time.</p> <p>2. Same—Canals.</p> <p>The constitutional provision prohibiting the sale of the canals does not apply to the sale of any property or rights of the state appropriated for the canals and at some time used for the canals, which are not necessary for its operation and maintenance as a highway of commerce.</p> <p>3. Same—Art 1, § 9.</p> <p>Chapter 291, Laws 1889, is not unconstitutional as appropriating public properly for local or private purposes, and so requiring the assent of two-thirds of the members elected to each branch of the legislature.</p> <p>4. Same—Statutes.</p> <p>The word “ appropriating” as used in the constitution has no reference to the appropriation of public money or property where the state gets an equivalent.</p> <p>5. Same—Two-third vote of legislature.</p> <p>The two-third vote is necessary to appropriate money or property of the state where a locality only is interested, and from which the people of the state generally are to derive no benefit and in which they have no interest.</p>

<p>Appeal from judgment in favor of plaintiff entered on trial before the court without a jury.</p> <p>The following is the opinion below:</p>

<p>Appeal from order vacating ah order for the examination of defendant before trial.</p>

<p>Appeal from judgment rendered in favor of plaintiff.</p>

<p>Appeal from judgment rendered in favor of plaintiff.</p>

<p>Appeal from judgment rendered in favor of plaintiff.</p>