author: By the Court. Hoffman, J.

text:
    Robert J. Cheseborough v. George V. House and Caroline E., his wife.
    Although a summons and complaint ask the recovery of a sum of money from the defendants generally, yet if the case made shows a demand binding merely the separate estate of a married woman, the cause is of an equitable nature, and should be tried at Special Term, without a jury.
    The complaint alleged that the defendant, the wife, was to take the furniture, the subject of the suit, in her own name, and pay for it out of her own funds. The defendants, answering jointly and severally, averred that the wife was solely interested; that the money paid was paid out of her separate estate, and that she had separate estate to the amount of ¡¡>6,000. The written agreement, upon which the action chiefly rested, was signed by Smith and Caroline E. House, and the property was transferred to her, and she covenanted to pay the stipulated price in the manner therein stated.

      Seld, that her separate estate was bound, and judgment given for recovery of the demand out of it.
    The case distinguished from that of Switzer v. Valentine, (4 Duer, 96.)
    Form of a judgment in such a case.
    (Before Dubb, Campbell and Hoffman, J.J.)
    December term, 1855.
    Appeal from a judgment at Special Term, entered the 30th of December, 1854, as follows:
    This cause having been brought to trial at a Special Term of this court, held at the city of New York, before the Hon. Murray Hoffman, one of the justices thereof, on the issue of fact joined therein, and after hearing R. Reed, and others, of counsel for the plaintiff, and Wm. W. Niles, of counsel for the defendants, and on due consideration by the court, it appearing, that on or about the first day of March, one thousand eight hundred and fifty-three, Caroline E. House, one of the defendants, then being a femme covert, to wit, the wife of the said George Y. House, other of the said defendants, entered into an agreement or contract in writing with Joseph L. Smith, the assignor of the plaintiff in said cause, for the purchase from him of certain goods and chattels, then being in the house number 345 Broadway, in said city, and by which said agreement or contract, the said Caroline E. House, undertook and promised to pay to the said Joseph L. Smith for the said goods and chattels, the sum of three thousand and five hundred dollars, at the times and in the manner pointed out by said agreement, and that the said Caroline E. House was possessed of separate property and estate, which she held to her sole and separate use, free from the control of her said husband, and that the said contract was entered into by the said Caroline E. House for her benefit, and that she acquired thereby the said goods and chattels which was then and there, by the said contract, conveyed to her, by the said Joseph L. Smith, and became her sole property, and that such contract was intended to be, and is, by the law of this state, a charge upon the separate property and estate of the said Caroline E. House, and it appearing further that the sum of five hundred dollars, being a part of said sum of three thousand five hundred dollars, the purchase money aforesaid, with interest from the said first day of March, one thousand eight hundred and fifty-three, is due to the said plaintiff^ as the assignee of the said Joseph L. Smith, and is unpaid, and that the said plaintiff is entitled to the payment of the said sum, together, with his costs and disbursements in this cause, out of the separate property and estate of the said Caroline E. House, and that the said George V. House was, at the commencement of this suit, and still is, the husband of the said Caroline E., and by reason thereof, a proper party to this suit, it is ordered and adjudged, that this court, by virtue of the power and authority vested therein, doth order and adjudge, that the said sum of five hundred dollars, together with fifty-six dollars and sixty-six cents, the interest aforesaid, and one hundred and eighteen dollars and twenty-eight cents, the costs and disbursements of the plaintiff in said cause, which said sums amount, in all, to six hundred and seventy-four dollars and ninety-four cents, to be paid to the said plaintiff by the said Caroline E. House, out of her separate property and estate.
    This case is made by the defendants to set aside said judgment, and for judgment for the defendants for their costs, or for a new trial, with leave to turn the same into a Bill of Exceptions.
    The material allegations of the pleadings, and the facts found, are sufficiently stated in the opinion of the court.

      W. W. Niles, for the appellants, and defendants.

      N. S. Rowland, for the plaintiff, respondent.
   By the Court. Hoffman, J.

The principal question in the case is one of importance and some difficulty. It is whether such a judgment as has been entered can be rendered against Mrs. House, a married woman, upon these pleadings and testimony.

But other and minor questions, necessary to be passed upon, should first be determined.

1. The point whether the cause was not tried at Special Term without a jury, irregularly and contrary to the Code, depends upon the question whether the judgment can be sustained as it stands. It is a judgment against the separate estate of a married woman, to be satisfied out of that. It must rest upon her capacity to bind such separate estate—upon her having it—and upon her having actually and legally bound it. Such a case is manifestly an equitable cause of action; the judgment must be an equitable judgment. It was appropriate to the Equity Tribunal before the Code. Under the received construction of the 253d and 254th sections of the Code, it clearly would be a case triable by the court. (Hill v. M'Carthy, 3 Code Rep. 50.)

2. The next question relates to the rent which Smith agreed to pay by the contract with the defendants.

The facts are merely these:—Lent was the landlord of the premises, and Smith his lessee. Upon transferring the furniture, and as part of the stipulations between him and the defendants, he was to pay all the rent and interest thereon down to the 21st of March, 1853, the date of the agreement. Suits arising between Smith and Lent, the former, under orders in the suits, paid into court all the rent due down to that time, but without interest. Lent, the landlord, proves this, and that he received the moneys. He says the amount paid in was due to him. He has never, so far as known in the case, made a claim for any thing in the shape of interest. It seems clear- that Lent never could sue, or in any way molest the defendants, or the property, for the rent falling due up to the 21st of March, 1853; and, hence, the spirit of Smith’s engagement has been fulfilled.

3. In regard to the admission of the statements of the husband as to the amount due upon the mortgage, this is to be observed:— The opinion of the Judge at Special Term, and the finding show, from testimony, independently of the husband’s testimony, that the sum of $506.22 was due. This is not shown to rest solely on the husband’s admissions.

4. The material, indeed the only question of difficulty in the cause, is that which relates to the liability of the separate estate of Mrs. House to this judgment. Could she bind it at all ? Did this contract bind it?

The complaint states that both of the defendants were interested and concerned in the purchase of the said furniture, goods and chattels, and are now interested in the same. Yet as it was contemplated by the defendants to pay for such furniture, &c., usually out of funds belonging to said Caroline E. House, in her own right, it was agreed and arranged by the defendants, that the said Caroline should take and hold the title and ownership of the said goods, &c., in her own name, which was accordingly done; and the said Caroline, with the consent of her husband, and under his direction, executed a written agreement in her own name, with Smith, to purchase such furniture, and to make the payments therefor in effect as above specified.

The defendants answered jointly and severally, and deny that both of them were interested in, and concerned in the purchase of the furniture, &c., but that the said Caroline was alone ^concerned and interested in the purchase thereof, and now is solely interested in the purchase thereof, and that the money paid on account of the purchase thereof was paid out of her own separate and private funds. This was repeated in nearly the same terms in the amended answer. Again, it is stated in the answer, that the said Caroline was worth, in her own right, at leást $6,000.

The agreement on which the action chiefly rests, is between Smith and Caroline E. House. It is to this effect:—

That in consideration of $3,500, to be paid to him, Smith, by Caroline E. House, party of the second part, he had bargained and sold to her all the furniture, &c., then on the premises 345 Broadway, and 92 Leonard street, to hold to her the said party of the second part. Mrs. House, the party of the second part, covenanted to pay in the manner stipulated, $500 on delivery; $658 to be paid to Beardesly to cancel a mortgage held by him; $1,400 on or before the 15th of May ensuing; a piano-forte at $325 ; and the balance on the payment by Smith of all rent due on such premises to the date, with interest.

This instrument was executed by Smith, and Caroline E. House.

Certain payments are endorsed upon it, one of $250, another of $1,142, composed of the piano $325, cash in court $750, and sundries $67. In the summer of 1853, Smith states Mrs. House admitted there was $1,400 due on the purchase. Then, in September, 1853, an instrument is executed by Caroline E. House, with her husband, acknowledging that there remained due on the Beardesly mortgage $693.38, and agreeing to pay it in the right of, and for the benefit of the said Caroline E. House. The plaintiff had obtained an assignment of this mortgage, and the above-stated covenant was therefore to pay the amount to him.

It has been contended that the case is governed by that of Switzer v. Valentine, (10 Howard, 109,) decided in this court. The differences are marked, and, in my opinion, decisive.

The action was by the husband claiming articles of furniture against a mortgagee, who had taken possession. The wife had given her note, and executed a chattel mortgage on the furniture, to secure the purchase money, and rent paid for, and meats and provisions furnished to her, while she was conducting a boardinghouse. The articles seized under the mortgage by the defendant were in the husband’s house. He had never consented to, nor authorized, the execution of the mortgage by the wife. He had never done any act to waive his right to treat the property as his own by the marital law. There was no evidence of any separate estate belonging to the wife, and no evidence of any engagement to pay for the property out of it.

The decision of the court in favor of the plaintiff was placed on the following positions.

The acts of 1848 and 1849 only capacitate a married woman to hold a separate property as her own, and to dispose of it as effectually as if she were unmarried. The capacity given to her to purchase is limited to purchases which she may make on the credit of her separate estate, or for which she may pay with such separate estate. A married woman, who has no separate estate, cannot make a contract now which would not have been valid before the statutes; and there was no evidence that Caroline Switzer ever had any separate estate. The husband was hable for its price, and it could be taken on execution against him.

In the present case, Mrs. House possesses separate property. The complaint avers that payment was to be made out of it. The answer absolutely denies a joint purchase. The proof is distinct by the instruments, to one of which the husband is a party, that she and her separate estate were alone to be bound. It may be doubted whether the husband is in any way liable.

It is then, I apprehend, the substitution of 6ne piece of separate property, by an engagement to pay money, which was her separate property, in order to procure it.

Can the fact that she meant to go on and use the furniture, &c;, in keeping a boarding-house, in other words, in trading, make a difference ? I apprehend not.

In The North American Coal Co. v. Dyett, (7 Paige, 1,) a married woman had constituted an agent to carry on a manufactory of cotton, in which she was interested as her separate estate. His contracts were held to bind her property, for supplies furnished, and labor bestowed.

Her liability for even general personal engagements is, probably, settled by authorities; at any rate, a specific engagement to pay out of her separate estate is amply sufficient. \

The present amounts, in substance, to such a case, (3 Mylne & Keene, 209.)

It cannot be that the husband, in this instance, could assert any right to this property.

The judgment must be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Bartow and Maria L., his wife, v. Simeon Draper.
    In a joint action by husband and wife for the recovery of land, no separate judgment can be given in favor of the wife and against the husband. They must recover jointly, or not at all.
    Hence, there can bo no recovery when it appears that the husband has debarred himself by his voluntary acts, from claiming the possession during his own life, when he is tenant by the courtesy, or when he is not, during the joint lives of himself and wife.
    The plaintiff, in an action for the recovery of land, is bound to show, either a prior actual possession, or a paramount legal title.
    In this case, all the Judges concurred in holding—
    1 That the plaintiff could not sustain the action upon the ground that the strip or. parcel of land demanded, and which was formerly part of a public street in the city of Hew York, had been allotted to them upon a partition between the heirs of G. Lombard, deceased.
    2. That the action could not be maintained upon the ground that Mrs. Bartow, as a co-heir of G. L, was entitled to an undivided tenth of the parcel demanded, even upon the assumption that G. L. was the owner, since it appeared from the evidence that her husband had consented to the proceedings by which the defendant had acquired his title.
    And lastly, that had all the heirs of G. L. united in the action, there could have been no recovery, since the evidence was wholly insufficient to show that either the title, or the possession, was ever vested in the ancestor.
    Hoffman, J„ was also of opinion that the title shown by the defendant, and which was derived from the corporation of the city, was valid and unimpeachable, upon the ground that the street, of which the parcel demanded in this action was formerly a part, and which had been regularly closed, was an ancient public street of the city, and that in relation to all such streets, it is a matter of fact,, and of legal presumption, that the fee is vested, exclusively and absolutely, in the corporation.
    Verdict set aside, and complaint dismissed with costs.
    (Before Dubr, Campbell and Hoffman, J.J.)
    December term, 1855.
    Case upon a verdict rendered by the direction of the court in favor of the plaintiffs, for the recovery of the premises claimed, and $1,000 damages for withholding the possession, and taken, subject to the opinion of the court at General Term, upon the questions of law arising upon the evidence.
    All the material facts, and the questions raised and argued by the counsel, are fully stated in the opinion of the court.
    December 9.—D. Marvin, for the plaintiffs,
    contended that they were entitled to judgment upon the verdict, with costs and with the mesne profits, at the rate of $500 per annum, since the rendition of the verdict. The main proposition upon which he rested his argument was, that it is established law that a conveyance of land, bounded on a public highway, carries with it the fee to the centre of the road as part and parcel of the grant, and when the road is discontinued the land reverts to the owner, and that the rule is the same in cities as in other parts of the state. He cited numerous authorities, andamong them, the following:—3 Kent’s Com. 432; Woolwich on Ways, 5; 12 Wend. 371; 2 John. 357; 12 John. 252; 15 John. 447; 6 Com. 518; 5 Wend. 420; 9 Paige, 550; 1 Sand. S. C. Rep. 323; 4 Hill, 377; 1 E. D. Smith, 302.

      W. M. Evarts, contra,
    insisted that the verdict ought to be set aside and the complaint be dismissed. Upon the main question, he argued that to make a good title to the soil of a highway, by virtue of a grant of abutting land, it is necessary, to carry up the deduction of title to a source, when the possession of, or title to, the soil of the highway is united with the possession of, or title to the abutting land; and that no such proof had been given, or attempted to be given. He also contended, that the rule of construction in regard to highways is not applicable to streets in this city, but that here the presumption is, that the fee, and not a mere easement of right .of way, is in the public. Among other authorities, he cited, Hoffman’s Treat, on Rights of Corporations, pp. 250, 291-4; 1 Wend. 262; 2 id. 492; 8 id. 85; 19 id. 128; 4 Com. 542; 4 Hill, 369; 2 Sand. S. C. Rep. 234; Embury v. Conner, 3 Comst. 511.
   By the Court. Hoffman, J.

There are four propositions under which all the material facts and questions of law arising in this case may be distributed. Upon three of these all the members of the court concur in the views I am about to state. Upon the fourth proposition, I express my own opinion merely.

First. That the present plaintiffs cannot sustain the action for recovery of the whole strip demanded, even supposing that George Lorrillard had any estate or interest in it.

Second. That the present plaintiffs cannot sustain the action for the proportion which they would be entitled to, in right of Mrs. Bar-tow as a co-heir of George Lorrillard. That proportion is one-tenth.

Third. That all the heirs of Lorrillard could not unitedly sustain such an action.

Fourth. That no one could sustain a similar action, because the proceedings to close Cross street were legal, and have vested a good title in the defendant.

First. The action is brought to recover a certain strip of land formerly part of Cross street, and described as follows:—All that parcel of ground situate in the 6th ward of the city of Eew York, heretofore a part or portion of the street called Cross street, and bounded and containing as follows: Beginning at a point on the northerly side of Chambers street, distant, north-westwardly, 30 feet from the corner of Centre and Chambers streets, and runs thence north-easterly along the easterly line of Cross street, "being also the line of land belonging to the estate of George Lorrillard, 37 feet 5 inches, to a corner of land belonging to the said estate of George Lorrillard, and land of George Bruce; thence north-westwardly, as the line between the lands of the estate of George Lorrillard and the land of George Bruce would run, if extended 20 feet 9 inches to the centre of Cross street, thence south-westerly 43 feet 2 inches, to the line or side of Chambers street aforesaid, and thence along the same, 20 feet to the place of beginning.

The description in the complaint is more condensed. This is taken from the deed of the Manhattan Company hereafter mentioned.

George Lorillard derived title on the 1st of June, 1808, by a conveyance from John Murphy, to a parcel of ground thus described : “ All that certain lot, piece, or parcel of ground situate and fronting to Augustus street, in the sixth ward of the city of Hew York, bounded easterly in front on Augustus street, westerly, by a certain street called Cross street, northerly, by a lot of ground formerly in the possession of John Wade, and southerly, by a lot of land formerly in the possession of John Strieker, containing in breadth, in front and rear, each twenty-five feet, and in length, on each side, about one hundred and six feet, more or less; (all such part of the said lot, when Chambers street shall be opened and extended to Augustus street aforesaid, as will be necessary to form a {continued) parallel line with the northerly side of Chambers street, only excepted.) And also, all the right, title and interest of the said John Murphy, in, and to such part of the' said lot of land, formerly in the possession of the said John Strieker, as shall on the opening and extending of Chambers street aforesaid, be and remain on the northerly side of the above {continued) parallel line.”

Before Hovember, 1832, George Lorrillard died. His will was contested, and finally set aside. His heirs-at-law succeeded to his estate. The final decision was in December, 1835. Some time prior to the death of Lorrillard, Augustus street was widened, and Chambers street extended eastwardly to Augustus street. And this last street was afterwards called City Hall Place.

The diagrams which I have drawn from the proofs and exhibits show the situation of the property at different periods from Lorrillard’s purchase to his death. Ho. 1, shows the lot at the time of the purchase. Ho. 2, exhibits it as affected by the extension of Chambers street, and the widening of Augustus street. In this the .parcels are marked C C, which were taken for widening Augustus street; and the parcels A and B, are those made by the continuation of Chambers street. Parcel A, is the strip reserved in the deed from Murphy. Parcel B is that to which the right and title of Murphy is conveyed, referring to it as part of the lot formerly in possession of John Strieker. Ho. 3, shows .the lot as it existed on the 8th of March, 1836.

In this position, and on the 8th of March, 1836, a bill was filed for a partition of the real estate of George Lorrillard among his heirs. A large estate was sought to be divided, and among the parcels set forth in the bill of complaint, was a lot of ground described as follows. “ All those three tenements and lots of land lying on the northerly side of Chambers street, in the city of Hew York, and extending from Cross street to City Hall Place, being known and distinguished as Hos. 19, 21, and 23, Chambers street, and taken together, are bounded as follows, to wit: south-westerly, in front, by Chambers street; north-easterly, in the rear, by a lot of ground belonging to George Bruce; north-westerly, by Cross street; and south-easterly, by City Hall Place, formerly Augustus street, containing in front, on Chambers street eighty-nine feet eleven inches, (89 ft. 11 in.;) in the rear, upon ground of said Bruce, one hundred and one feet two inches, (101 ft. 2 in.;) upon the City Hall Place, nine feet two inches, (9 ft. 2 in.;) and upon Cross street, thirty-seven feet five inches, (37 ft. 5 in.) more or less.

Pending the suit in partition, and before the 6th of December, 1838, proceedings which had been taken by the Common Council for the opening of Centre street and closing of Cross street, were consummated. These proceedings had been commenced by the usual petition to the Supreme Court, in June, 1835. The commissioners’ report and supplemental report were presented to that court for confirmation, in January, 1837, and were, by rule, duly confirmed on the 4th of that month.

The effect of these proceedings, upon the parcel of ground in question, was, to reduce the line on Chambers street from 89 feet * 11 inches to 30 feet, and to make the front on Centre street 28 feet 4 inches. The closing of Cross street deprived the owners of a front upon-it.

Diagram Mo. 4 shows how the lot then stood.

On the 6th of December, 1838, a Master in Chancery made his . report in the partition suit, in which he stated the above changes made since the bill was filed; that the effect had been to take off the whole of Mo. 19 (street number) Chambers street, and most of Mo. 21. The residue of Mo. 21 had been added to Mo. 23, and formed one lot, as shown upon a diagram annexed to the report. The diagram is exactly Mo. 4; the words, in red ink, “ now owned by the Manhattan Company,” being found upon it.

On the 5th of February, 1839, an order confirming the commissioners’ report was made, and on the 26th of June, 1839, the commissioners appointed to make partition reported, and their report was confirmed on the 10th of July.

It should here be observed, that on the 23d of January, 1838, the Corporation of Mew York, having first offered the strip of land in question to the heirs of Lorillard, sold and conveyed it to the Manhattan Company; received payment of the price, and in their conveyance, bounded and described the parcel precisely in the same manner as the strip demanded in this action is described.

It should also be noticed, that the Manhattan Company had, for many years previous been the owners of the land fronting on the west side of Cross street, from Chambers street to Reade street.

And then, as before observed, the commissioners in partition made their report, confirmed in February, 1839, and therein allotted to Robert Bartow and Maria L. Bartow, in right of said Maria, a parcel of ground thus described: “ All that lot, &o., at the north-west corner of Chambers street and Centre street (being all that remains of the three parcels of ground described in the bill in this case as Mumbers 19, 21, and 23, Chambers street) and is bounded south-westerly, in front, on Chambers street; northeasterly, in the rear, by a lot of ground belonging to George Bruce; north-westerly by ground belonging to the Manhattan Company, (formerly part of Cross street,) and south-easterly by Centre street; containing in front, on Chambers street, 30 feet; in the rear, upon ground of George Bruce, 33 feet 2 inches; on the north-westerly side, 37 feet 5 inches; and on Centre street, 28 feet 4 inches, be the same more or less; being part of the parcel of ground granted and released to George Lorrillard by John Murphy, by deed dated June 1st, 1808, recorded in liber 80, p. 288.”

It is admitted that no allotment made by the commissioners in partition to any of the heirs of Lorrillard, will include the strip in question, unless it passes by the allotment to the plaintiffs.

In our opinion it is perfectly clear that it did not pass to them, and that if the heirs collectively ever had or could claim a right to it, it remains a part of the undivided estate of their ancestor.

It is manifest that it was never carried into or estimated as a part of the estate to be apportioned. It was valued, in 1837, at over $7,000.

Every term of the description in the allotment to the plaintiffs is fulfilled and met, by excluding this parcel. The corner of Centre and Chambers streets is taken as a definite point. The length on Chambers street is precisely fixed at thirty feet. The plaintiffs themselves prove that in January, 1838, the Manhattan Company took possession of the strip, claiming to have purchased the same of the Corporation of New York, and the diagram to the Master’s report, designating the lot to be set off as part of the estate, speaks of this strip, “as now owned by the Manhattan Company.” To give the parcel in question to these plaintiffs separately, under this allotment, would be to adopt a very forced construction of words, and when that construction would work injustice to others.

We are all clear in the conclusion that the plaintiffs cannot sustain this action for the whole of the parcel demanded.

Second. The present plaintiffs cannot sustain the action for the proportion, viz.: one-tenth which Mrs. Bartow would take as a co-heir of George Lorrillard, assuming that he was vested with any right in, or title to, the strip.

The decision of the Court of Appeals in Embury v. Conner, (3 Comstock R. 511,) determined, that the 179th section of the general act relating to the city of New York, (2 R. L. 1813, p. 416,) authorizing the taking of fractional portions of lots, which were not within the limits avowedly taken for public use, was unconstitutional, unless it was done with the owner’s consent; that the act could be construed so as to provide for the taking with such consent; and then its provisions would be lawful. That consent could be proven like any other fact. The statute of frauds, as affecting real estate, without writing, did not apply, if a parol consent could be proven.

As to what amounts to such a consent, the court approved the decision in Baker v. Brannan, (6 Hill, 47.) There an action brought by a party for damages assessed upon laying out a private road under a statute, was held sufficient proof of assent. The statute was to be read, with the proviso that the owner should consent. The action was proof of it, and assumpsit would lie by him against the party assessed.

Again. Justice Jewett adverts to the statement in the report of the commissioners, that they had awarded a certain sum to the devisees of Daniel Ayman, in consequence of their relinquishing their interest in the parcel of ground taken, and says that the statements in the proceedings and report were admissible in evidence, to show that the parties to the suit were parties, by actual appearance, to the proceedings.

The court consider Embury bound, by his appearance and acts, and observe that if it was shown, that he was authorized to represent the others before the commissioners, it would show their consent also, especially when connected with the fact that they received the compensation awarded. The learned Judge then adverts to the fact of Margaret Jacot being a married woman, and expressly holds that her consent could have been given and proven in the same manner as that of adults. But there was not sufficient proof of her consent.

We, in the first place, consider the present case as if Mrs. Bar-tow had not bound herself, or could not bind herself, by what has taken place. But the action is by the husband and wife. The husband is entitled to the whole rents and profits of this property, if recovered, during their joint lives, if there are no children, and during his life, if there are. Ho separate judgment can be given in favor of his wife and against himself. They must recover jointly, or not at all. What defeats him defeats the action; and what amounts to a consent to, or ratification by him, of these proceedings, is fatal to the recovery.

As to him, the case is stronger than that of Embury & Conner.

He united in the power of attorney to Mr. Dean, set forth in the case. The fifth article of that power, empowers Dean to do all necessary acts, for the preservation of the estate and the promotion of its interests, after confirmation of assessments, in cases of opening and widening streets. It is proved, that Dean acted as general agent of the heirs, and had the charge and supervision of the estate; that he appeared, as such agent, before the commissioners; that among the papers returned to the Supreme Court, was a communication, in writing, made by Dean as such agent, asking for the correction of the report, as to an award of damages on a lot in Centre street; which correction was made.

On the 16th of June, 1837, Dean, as agent of the heirs, applies to the Common Council, praying that such part of Cross street as adjoined their property may be conveyed to them, in fee, upon their paying their just proportion of the estimated value of that part of the said street, so to be closed.

On the 9th of September, 1857, he joins, as such agent, in a remonstrance against the employment of the strip in the closed street for a public school; and praying, that the corporation would sell the same to the adjoining owners, and on such terms as would be equitable.

On the 11th of December, 1837, Dean, as such agent, united with other owners of adjoining lots in remonstrating against the corporation putting an enhanced price upon the property; but praying that the ground should be awarded to such owners, at the commissioners’ valuation, with the addition only of such percentage as would save the public from loss. The Common Council having decided against this application, and the estate ofLorrillard refusing to take the parcel at the proportion stated of the enhanced price, the sale and conveyance were made to the Manhattan Company.

On the 1st of July, 1837, the said Dean, as agent of the estate, received from the corporation the sum of $19,438, the amount of the awards to the estate for damages, and paid them the sum of $21,616.66, the assessments for benefits.

In October, 1837, he submits a statement to the heirs, of these facts. Both amounts go into his general account with other items, and he divides the balance among the heirs, according to their respective proportions, and accounted for and paid over the same to them.

To estimate the force of this statement and receipt, it must be ■ remembered, that the closing of Cross street was united with the opening of Centre street, and made one proceeding. Hence, the award for damages includes all which the estate sustained, by each and all of the operations. It must be assumed,” in the language of the report of the Board of Assistants, “ that all persons who were shut off from the old street, by the improvement, have been allowed the full amount of the damage they have received.” Clearly, if there was a damage to the adjoining lot, by losing the side-front on Cross street, the commissioners did, or ought to have allowed it. Clearly, it could have been corrected, if they had erred in this particular, on the motion for confirmation.

Thus, then, the statement and receipt of the dividends amounts to this: that the agent had obtained, for damage in closing Cross street, (together with some sums for other damage,) a certain amount of money, and they accept it. Or, if nothing was allowed, he apprises the heirs of this fact, and pays them what was awarded on the other, but connected account.

It must be, here, also noticed, that, at the time, only the damages for the parcel actually taken for an improvement were specified in a report. An incidental damage, such as the loss of the side-front, would not appear, even if allowed for by the commissioners. The act of April, 1839, (ch. 209, § 3,) corrected this mode of making up a report. The commissioners may well have balanced the loss of a front on Cross and Augustus streets, by the far more valuable front on Centre street.

In our opinion, the consent of Robert Bartow, and his ratification of these proceedings, is placed beyond a doubt, upon the principles of the case in the Court of Appeals.

In relation to Mrs. Bartow, whether she was bound by the acts and evidence, which we consider as binding upon her, husband, we express no opinion. It is unnecessary for the decision of the cause.

Third. The third proposition is, that all the heirs of George Lorrillard, could not, collectively, sustain such an action, to recover the premises.

This position, the defendant’s counsel has strenuously urged, and upon reasoning substantially this—that, in order to dispossess a defendant, who, or whose grantors, have been in possession for fifteen years, a prior actual possession must be made out, or a clear paramount title. The former, of course, cannot be claimed. It never, at any time, existed in George Lorrillard. If it had existed, the right ought to have been asserted in a reasonable time. (Whitney v. Wright, 15 Wendell, 171.)

What superior title could the heirs of Lorrillard show in themselves? Cross street, it is stated in the case, was an open and public street of the city as early as the year 1800. All that the record shows of the derivation of Lorrillard’s title to the adjacent lot is the deed, from Murphy to them, of 1808. In that the boundary is, “Westerly by a certain street, now called Cross street,” the length there being twenty-five feet. And then Murphy also grants all his right and title to the strip formerly in the possession of Striker, and which I have marked on diagram B. This triangular piece gives the twelve feet five inches on Cross street. And this, with the original twenty-five feet, is stated in the bill for partition as having belonged to, and been in the possession of Lorrillard.

We may concede, for the present, that the presumption acted upon in the cases of John street and Cherry street, (19 Wendell, 659,) of the occupant, and apparent owner, of an adjoining lot being the owner of the strip, is a valid presumption. But that will be proper, simply to determine to whom the money awarded for damage, or assessed for benefit, should be adjudged. It can settle no rights between the true owner, when discovered, and the occupant. The court would not enter into the adjudication of such contested claims.

But when an ejectment is brought by a claimant against a party in possession, something more is necessary than to show a mere right which amounts, at the best, to a presumptive right of possession. When no actual possession ever existed in the claimant, and none is shown in his grantor at the date of his grant, he must go back, and show that some one, under whom he claims, had, at one time, possession and title, or at least the latter, and that he has succeeded absolutely to all such right.

These views strike us as entitled to great weight. It might, however, be improper to determine upon them, absolutely, in the absence of other heirs of Mrs. Lorrillard.

Fourth. I proceed to the consideration of the fourth point stated, as to which I express my own opinion only. In my judgment, neither the plaintiffs, nor the heirs of Lorrillard, nor any other person, can make out a better title to the strip in question than the defendant. That title is legal and valid. The proceedings of the corporation, and the deed to the Manhattan Company, were authorized and lawful.

I consider that in relation to the ancient public streets of the city of New York, it is either matter of fact, or matter of legal presumption, that the fee is in the corporation. By the term ancient, I mean all the streets not laid out under the act of 1807; and by the term public, those originally laid out by the city government, under an existing law, or where laid out by private owners, adopted and taken by the corporation as public streets.

And here it is to be noticed, that, without the act or adoption of the city government, there could not be a public street. In the language of Mr. Justice Platt, (19 Johnson Rep. 186,) “ The original survey and map showed that Peter Stuyvesant formed a plan for laying out streets over his land in 1796. But we must intend that every person knew that those streets could not be established as public streets of the city, unless they were sanctioned by the corporation, or other public agents, having such powers.”

This necessarily resulted from the grant in the charter of 1686, confirmed in that of 1730, of the right and absolute power to ordain and establish streets throughout the city. An absolute power like this was, necessarily, an exclusive power. Justice Platt is mistaken, if indeed, his language is so to be understood, in supposing that the statute of 1807, superseded, as an act of legislative power, the control of the corporation. That act was passed upon the formal application and assent of the city government.

This act of 1807 was a compact with the legislature, by which the corporation of New York agreed to a circumscription of its own powers, and in establishing a great system of streets, to restrict itself from the exercise of the power of alteration. But beyond the limits of the act, every power remained as absolute as it was before.

In relation to Cross street, we find it upon the record, that in or prior to the year 1800, it was one of the known public streets of the city of New York. I do not suppose that a reference to the public maps is improper. ITpon examining them, we find that in that of 1755 there is no trace of it, nor in that of Lieutenant Rutzell, of 1767. In Hill’s map, of 1782, we find a line drawn, apparently corresponding with the easterly line of this street, and houses marked upon it. But no line of a street is indicated on the westerly side. In the map of 1797, it is laid down with the marks of a street, and called Potter’s Hill. It is defined from Chambers street up to Read on the westerly, and to Bailey street on the easterly side, the latter being a continuation of Read street, with some divergence. On the map of 1808, it is similarly laid down, but not named.

It is an inevitable conclusion, that Cross street, being a public street in 1800, had been taken and opened as such, in one of three modes. Either under the act of April, 1787, then in force, by a regular adversary judicial proceeding; or, under the same act, by mutual agreement as to the price, or compensation to be allowed; or by formal written cessions.

Under the statute, where the only question was as to the compensation, it was (as may naturally be inferred) the course to appoint arbitrators to adjust it. The cessions appeared to have been employed, where a transfer of the right was agreed tobe made for certain collateral advantages, or stipulations, not the direct payment of a sum of money.

In either of these supposable cases, by which Cross street could have been opened, and made a public street prior to 1800, T apprehend the fee would pass. As it is not in evidence how it was in fact opened, we have only to act upon the statement of the record. But we have here the aid of. a rule of law, that when the mode of opening, a street cannot be traced, the legal presumption is, it was opened according to the law then in force. (2 John. Rep. 424; 2 Southard, 482.)

There are some propositions tending to interpret the act of 1784, which should in the first place be considered.

If the title to the land in this street was derived from , a Dutch ground brief, it was originally subject to the right of the Government to take it without any compensation. And then the Colonial act of October, 1691, of which that of 1784 was a transcript, and the latter act, were restrictions of an unlimited power of government ; and upon settled rules of law, the acts are to be construed strictly, as affecting pre-existing rights. What is not plainly taken away from the corporation, by necessary inference remains in them.

I forbear to proceed farther upon this topic. I have adverted to it, because, should it turn out, if this case goes again to trial, that the title to the land rests upon a Dutch ground brief, the point, to my mind, will be of no little moment.

Again, it is not to be contested that, for the purposes of the regulation of a city, it is highly expedient, if not essential, that a fee should reside in its government.. (City of Cincinnati v. White's Lessees, 6 Peters, 133; Board of Trustees v. Havens, 11 Illinois, 534; Hunter v. Middleton, 13 Illinois, 50; Doe v. Jones, 11 Alabama, 63; Ch. Justice Jones in Drake v. The Hudson River Railroad Co., 7 Barbour, 536; Williams v. The New York Central R. R., 18 Barbour, 246; Chapman v. The Albany and Sch. R. R., 10 Barbour, 363.)

In the next place, the rule applicable to country highways may well be placed upon the consideration, that the fee in the soil avowedly did not pass to the public. It was not estimated and paid for, but merely a right of use and enjoyment, and it was not paid for, because it was unnecessary for any of the public purposes that the fee should be taken.

As if pointedly to mark the distinction between public highways, and streets in the city, the Colonial Assembly, on the 6th of May, 1691, passed a general highway act, and on the 1st of October, 1691, passed the particular law applicable to streets in the city of ¡New York.

This act of the 6th of May, provided for the laying out of such highways as should be agreed upon by a majority of the freeholders of the towns, subject to the approval of the Court of Sessions. (1 Smith and Livingston.) ¡No provision was made for the compulsory laying out of a highway.

In June, 1703, another act was passed, which appears to have been a general act. It was- continued on the 4th of August, 1705, and expired at the session after the 17th of June, 1709. The act of 1691, (May 6,) appears to have been revised. We find it in Van Schaack’s edition of the laws, 1773.

By the act of 1703, commissioners were appointed for the several counties of the state. Under it the old post road was laid out, from the city of Hew York to the colony of Connecticut. There was no provision in it for compensation to owners.

There were some special acts during the colonial legislature of a very peculiar character. Thus, a statute was passed the 14th of October, 1732, for highways and roads in Suffolk county. The full value of the land, and damages by reason of making the road, were to be paid, and the persons desiring such road were to pay such value, damages and expenses. The road was then to be held for the only proper use of such persons as should pay for the said road, their heirs and assigns.

On the 29th of Hovember, 1745, an act was passed relative to highways in Westchester county. In this, if the road was Sum through improved lands, compensation was to be made to the owner. If an agreement was not made, a mode for settling the amount by a jury, was prescribed.

On the 4th of May, 1784, the first act of the state was passed. It extended to Dutchess, Orange, Albany, Ulster, Washington, Westchester and Montgomery. Suffolk and Richmond were afterwards added. It had this new feature, that if the road was laid out, through improved or inclosed land, compensation was to be allowed for the value of the land, as well as damages to be fixed by two justices, or twelve men. Ho highway could be run through an orchard, or a garden, without consent.

This was revised, and a new act passed in April, 1801. (Sess. Laws, ch. 186.) This applied to all the counties except Hew York, Kings, Queens, Suffolk and Richmond. The 15th section directed that where the road was run through improved or inclosed lands, compensation was to be made through a jury for the damages sustained by the owners, by feason thereof.

In the revision of 1813, the provisions are similar as well as in the Revised Statutes of 1830. (1 R. S. 628, &c.)

There was a special statute passed April 2,1801, (Sess. Laws, p. 111,) which deserves particular notice. It related to highways in the counties of Kings, Queens, Suffolk, and Richmond, and it provided that the commissioners should not lay out any road through any person’s land without paying him the true value of the land so laid out into a highway or road, with such damages as he shah sustain thereby. This was the same provision as' was inserted in several colonial statutes before noticed.

But in the act of 1830, this language was omitted, and the general clause employed, damages caused by the laying out of such highway. (1 R. S. 515, §§ 64, 65.)

From this review of the highway acts, it will appear, that, with the remarkable exception of the counties mentioned in particular statutes referred to, compensation was not allowed at. all for public highways, until the act of 1784; and in that act only, when the land was improved; a provision changed in the statute of 1830. When land was not allowed for, or when only the damages were allowed, caused by the laying out, there could be no ground for supposing a transfer of the fee. It was not necessary. It was not paid for. It was not therefore actually, or impliedly, taken.

In the late case of Gola v. Glass, (19 Barb. Rep. 189,) it was held, in the fourth district, that the clause in the General Highway act, authorizing wild lands to be taken in effect without compensation, was unconstitutional under the constitution of 1821. The road was laid out in 1840. The provision referred to is:— “ That private property shall not be taken for public use, without just compensation.” "

A similar decision was made in the seventh district, in the case of Wallace v. Karlenowski, (Barb. 118.) Justice Welles, in delivering the opinion of the court, adverts to the uniform character of such highway acts from the year 1784, and does not question their legality before the constitution of 1821. He observes also, that there can be no substantial distinction, because the right of way only was taken, and not the fee. The owner was deprived of his land, at least, for a time.

It can scarcely be doubted, that the received colonial law, recognized a right in the state, if not in the crown, to lay out public highways over lands without compensation. The statutes creating special exceptions, tend to prove this general law. From what source this rule was derived, is not so clear. The most sensible and consistent supposition appears to me to be, that it was the influence of the Dutch law, the same as the general civil law, by which the tenure of lands was such as rendered them liable to this public servitude. I have elsewhere endeavored to show from public documents, how extensively the Dutch ground brieves were regarded as sources of title, protected by the capitulation, and to which this public right attached. (Law of the Corporation, p. 265, 268,) all these statutes, then, were restrictions of the state, imposed" by itself upon the exercise of its public right.

Nor is there any thing in the rules of the common few to shake this conclusion. The great highways of England were termed the king’s highways, alto regia via. They ran through lands belonging to the king, as the source of title or original owner, upon the doctrine of feudalism; or through lands granted by him. The highway was then run through such lands by an act of the king’s power, or by the voluntary act of the owners. In either case, there was no compensation. And in either case, the king could not reclaim the land when the highway was discontinued.

When the act of 1691, and its copy, that of 1787, are examined by the light of these principles and this history, it seems to me a just conclusion, that the fee was to be paid for, and did pass. It enacts, that if, in laying out any street, the corporation take any person’s ground, they are to give notice to the owner. To the intent that satisfaction may be given for all such ground as shall be taken and employed for the uses aforesaid, the mayor, &c., are empowered to treat and agree with the owners. If no agreement was made, they were to summon a jury before the court of the mayor, aldermen, &c., to inquire and assess such damage and recompense as should be due to the owners and others interested, for their several losses, according to their several and respective interests and estates in any such ground, or any part thereof, for their respective interests and estates in the same, as shall be adjudged'fit to be converted for the purposes aforesaid. And upon the verdict of the jury, and payment to the owner and others having estates and interests, or tender of the amount, the judgment shall be binding upon, and against the parties, their heirs, executors, and assigns, and others claiming any estate or interest of, in, and to the said ground, and shall be a full authority to the said mayor, &c., to cause the said ground to be converted and used for the purposes aforesaid.

The value of the ground, according to the estate and interest of the parties therein, is to be estimated and allowed. Beyond all question, an estate in fee would be valued as such, and paid for. What would be the judgment under the act? That the ground be adjudged to the mayor, aldermen, &c., to be held by them and their successors, for the use and purpose of a public street, upon payment or tender of the amount assessed.

When, then, in the act of 1813, that distinguished lawyer, Chief Justice Jones, who drew it, inserted the provision, that upon confirmation of the report, the corporation should become seized in fee of the lands taken for opening the street; in trust, to keep the same open as a public street,” he did no more than embody the traditionary and received doctrine of the colony and the state. He was the historian rather than the author of the law.

A few authorities may be here noticed.

In The Board of Trustees v. Cavens, (11 Illinois Rep. 554,) a statute provided that a proprietor of lands in a city about to lay them out in city lots, should make a plot in which the lots, streets, and alleys should be designated, “ and the land intended to be for streets, or other public uses in any town or city, shall be held in the corporate name thereof, in trust, for the uses and purposes set forth and expressed or intended.”

Under this act, the legal title to land in a street designated on such a plot was held to be in the corporation of a city, for the use of the public.

Hunter v. Middleton, (13 Illinois Rep. 50,) declared the same rule, and recognized the previous case. The court adverted, indeed, to the possibility that the fee might revert upon a discontinuance.

In Doe v. Jones, (11 Alabama Rep. 63,) it was held, that where - there was a dedication for a public purpose, a grantee was unnecessary. The rule that a fee could not be in abeyance, was inapplicable where it was contemplated in the act of dedication that one would arise.

The necessity for a larger extent of power as to streets than as to highways, is dwelt upon. The rule of the court in Barclay v. Howell, (6 Peters, 499,) is applied, that if a corporation appropriate property given to it to a use different from that declared, it was ground for the interference of a Court of Chancery, not of a reverter to the former owner.

In Barclay v. Howell, (6 Peters, 499,) the court say, if this ground'had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it . might afford ground for the interference of a Court of Chancery to compel a specific execution of the trust, by restraining the corporation, or by the removal of obstructions. But even in such a case the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions imposed in the grant.

Hayward v. The Mayor, &c., of New York, (8 Barb. 486; 3 Selden, Court of Appeals, 314,) involves, to some extent, the same principle: the memorial of the corporation is indeed recited, in which they pray, not only that they may be empowered to take the lands for a market, but also to hold them for other public purposes in case of a discontinuance: and the preamble to the statute is, that the prayer appears reasonable. The statute also vested the fee in the corporation, in terms, upon payment of the amount assessed.

The case was of grounds taken under the act, for an almshouse establishment. The corporation paid the full value of the land, and many years afterwards removed the buildings, &c., and sold the property. The action was to recover the proceeds of the sale. Mr. Justice Edwards, in delivering the opinion of the court below, said:—“ The title to the land in question became vested in the defendants, as a corporation of varied and extensive powers and duties. A corporation is bound to provide suitable accommodations for a class of inhabitants which will always exist in spite of the wisest regulations. If one location is given up, it must be merely for the purpose of obtaining another more convenient. And if the corporation has obtained property in a proper case in good faith, there can be no reason why a new location should not be paid for, by the sale of that which has been abandoned. The interest of the public requires it, and the party whose property has been taken shares in the benefit equally with others.”

Again, the principle of the street cases should be examined. If it were not for the doubt cast upon the point by expressions on the opinions in two cases in this court, we should unhesitatingly conclude that the deed of Murphy did not pass the fee to the half of the street.

From the very beginning of this series of cases, viz.: the Mercer street case, (4 Cowen, 423,) to this time, there has been an unwavering course of decisions in the Supreme Court, and the Court of Errors, holding that a grantor, who bounds his grant upon a street in the city of New York, does not pass the fee to his grantee. And there is no distinction made between streets laid out under the statute of 1807, upon the commissioners’ map, as it is termed, and the streets laid out by the corporation, or adopted by the corporation as public streets, and not within the limits of their great plan. The Mercer street case, (4 Cowen, 423;) The Sixteenth street case, (1 Wendell, 262;) Lewis street case, (2 Wendell, 272;) Attorney and Ridge street case, (8 Wendell, 85;) Thirty-second street case, (19 Wendell, 138;) Twenty-ninth street case, (1 Hill, 189;) Fifth street, (11 Wendell, 486;) Furman street, (17 Wendell, 601,) all concur to establish this result. I cite, to explain as well as to establish the rule, the language of Chancellor Walworth in Livingston v. The Mayor, &c., (8 Wendell, 99.) The principles of construction applicable to grants of property in the country do not apply to conveyances of city lots. The right of way is a mere rural servitude, confined to a convenient passage from the property granted to a public road.” After stating the effect, in Ms opinion, of a grant of city lots bounding upon streets, he says, all that the grantor has a right to claim, is the value of the street to Mm, subject to the right of his grantee, to have them kept permanently open; in other words, the mere value of the legal title, subject to the easement of urban servitude.

These cases establish tMee points,—

First. That the owner of land in New York, making a grant in general terms, fronting a public street, did not pass the fee.

Second. That he must expressly grant to the middle of the street, in order to pass the fee to his grantee.

Third. That in either case, the fee was subject to an easement in the street. And here arose a most important distinction, applicable to tMee classes of cases. ■

If the grant was upon a street laid out upon the map of the commissioners of 1807, the fee remained in the grantor, until the street was opened. When opened, if he retained the property on one side, the value of the land, taken up to half the street, was given Mm, its actual value, as determined by the commissioners. If he had sold a fronting lot before the opening, bounding upon the street, he retained the fee; but it was of mere nominal value. The easement given by the boundary robbed it of any actual worth. The award of a dollar extinguished it. If he gave expressly up to the centre of the street, it was a point not fully settled, whether the grantee might not require payment for the actual value. But in any event, the corporation acquired upon the opening, the whole fee in trust for the public.

Next That these principles were equally applicable to streets laid out by owners, and taken by the corporation for public use, in any mode in which they could legally take them.

Third. If so applicable in these cases, undoubtedly they were applicable when the corporation opened streets in parts of the city, not comprised within the limits of the map of 1807, under its general statutory power, and in pursuance of such power.

The cases in the Superior Court, to which I have adverted, are Hammond v. McLaughlin, (1 Sandf. R. Sup. C. 340,) and Herring v. Fisher, (ibid. 344.) In the latter, the Chief Justice expressly says: “We are not determining the construction of a conveyance of city lots, but of a country farm. The Herring farm, at the date of this conveyance was literally in the country, and Amity Lane was nothing more than a country road.” The court treated it as a public highway. But I have elsewhere shown that it never was adopted as a public street by the city. (Powers, &c., of the Corporation, p. 287.)

The other case was of a strip in a street called Catharine street, laid out by Mr. Hammond, and never adopted by the Corporation, but closed by virtue of the act of 1813, ch. 70. The Court say, no street ever was, in fact, laid out there, and no street could be laid out there as the law then stood.

These decisions are strictly compatible with the doctrine of the Supreme Court in the street cases.

I proceed to consider the act of 1818, under which the proceedings in this case were taken, with the cases of John street and Cherry street. (19 Wendell Rep. 660, et seq.)

The theory of this statute, I apprehend to be this: The corporation were, in contemplation of law, seized of the fee in the streets, but seized, in trust, to keep the same as public streets for public purposes. The trust was not a condition, upon breach of which the property would be divested, and a forfeiture be worked. Nicoll v. The New York and Erie R. R. Co., (2 Kernan, 131.) But legislative power and interference were necessary to extinguish the one public use, and apply the property, or its proceeds, to another. The statute, therefore, .provided a mode by which all the parties injured by the closing of the street, should have their damage and loss assessed; and it directed the corporation to pay such amount within four months, and then gave a right of action to the parties against the corporation, to recover the amount. In return for, and to provide means for meeting, this liability, the land was vested absolutely in the corporation, discharged of such trust, so that they could sell it in fee. The proceeds of the land were thus appropriated to a public purpose, viz.: to pay those to whom compensation was due for effecting that which public utility required, the closing of the street, or to other public uses.

With these observations, I proceed to examine the John street case, (19 Wendell R. 670.) I may first observe, that the decision was by Mr. Justice Cowen, at Special Term, and has not been judicially recognized since, in any case that I have ever met with. It has been practised upon, but in the manner hereafter noticed.

The improvement applied for in that case, was the closing a part of John street, on the southern corner of Broadway, which left a triangular piece to be taken; and also the taking a strip of land on the northerly side, straightening the street there, and altering the line elsewhere. The commissioners reported that the strip in question belonged to owners unknown, subject to a right of way, and they awarded to such owners one dollar for damages. They then assessed to the corporation, for the value of the strip to be taken to their use, $15,000. On the application for confirmation, Mr. Justice Oowen declared two points to be applicable.

ls<. That the owner of the adjoining land, Baltus Moore, was to be deemed the owner of the strip, and the one dollar should have been awarded to him.

Next. That the case fell within the constitutional provision of taking private property for public use without compensation. It was not to be treated as taken for public use.

But there is another most important fact connected with the John and Cherry street cases. The report was sent back for reconsideration and correction, by assigning and assessing the lands now awarded to the corporation, to the adjacent owners. (See 19 Wendell Rep. ,678, and rule of the Supreme Court made thereupon.)

The commissioners in the John street case, made their revised report on the 24th of July, 1839, and reported, “That Baltus Moore was entitled to the strip, subject to a right of way in the public; and that they assessed the benefit and advantage to the said Baltus Moore, in consequence of his becoming entitled to the possession and use of such strip, discharged of the easement and public right of way, at $15,000.” This report was confirmed by the Supreme Court, September 9, 1839. The sum of $15,000 was the precise sum at which the land had been valued and assessed to the corporation.

I called the attention of the counsel to this fact upon the argument, having been one of the commissioners; and I have since examined the record in the street commissioner’s office.

The same was the course pursued, as I am informed, by the counsel of the corporation, in the Cherry street case.

The case, then, contains this judicial exposition of the statute. The mere nominal fee of the land in the street remained in the adjoining owner. It was valueless, subject to the easement. When such owner is to take or resume it, discharged of the easement, he must pay the actual value of the land, for the whole value consisted in the easement, which was to become extinguished. Thus in effect, he was to become the purchaser of the land; and having in fact, or by legal inference, received full value when the street was taken, he must pay full value when the street is restored, or given to him. This would be equity, and the remarks of the court in Hayward’s case (3 Selden, 326) become very pertinent.

The practice adopted by the corporation in these cases should be adverted to more fully to understand this subject. Sometimes it was to give the right to the adjoining owner to purchase the land at the price fixed by the commissioners.

In the present case there is a report of committees, and action of the corporation of a different character. In these it was assumed that the corporation had a right to sell to any one at an enhanced price. But the records of the Common Council show how much this point was contested. In one report of a committee, the right of the adjacent owner to a pre-emption was advocated, and at the commissioners’ price.

It was also conceded, that the offer to such owner at the enhanced price should be made.

The act of 1818, thus construed, is strikingly similar to an act of 3d. Geo. cap. 126, (1822.) But the latter carries out the principles by express provisions. After the completion of a road under it, the old way, or so much of it as the commissioners deem to be useless, shall be discontinued as a public highway, (with certain exceptions,) and such old road shall be vested in the trustees, to be sold and conveyed by them for the best price. But they were to dispose of such old road to the persons whose land adjoined it, or if he should refuse to purchase, to some other person; and they might exchange with such person any part of the old road, for any land taken for the purposes of the act. The money upon a sale was to be applied to the purchase of the new road.

The result of the actual decision in the John street case was, that Baltus Moore, instead of having property taken from him, acquired property upon paying its full value. A barren, naked fee, worth nothing, was, by the letter of the proceedings, taken away; and an actual, absolute, and beneficial estate and possession was transferred to him. It seems a difficult problem to solve, how such an operation can be regarded as depriving a person of his property. If such a right of reversion was property, he ought not to have been bound to pay any thing; if not property, the act was not unconstitutional.

In applying the rule of this case to the present, we find that the commissioners valued the whole strip in Cross street, from Chambers to Reed, at $30,000. The valuation at which the corporation sold was $38,500, and the apportionment of that amount for the strip in question, was $7,526.50.

The proportion of $30,000 upon this basis would be about $5,767. Had the report been made upon the rule thus laid down, Lorrillard’s estate must have paid this sum. It does not seem possible to present a view of the case in which there could be any claim whatever, except a money demand for difference; a demand subject, of course, to many difficulties at this late day.

But, in my opinion, the case rests upon stronger grounds, and I state the summary of my views in the following propositions:—■

1st. Cross street, like other ancient public streets of the city, is to be assumed, until the contrary is proven, to have been opened according to the law existing at the time, which the record fixes before 1800.

2d. It is to be assumed that, upon opening such street, a full valuable consideration was given for the whole interest of the parties in the land.

3d. On that assumption a fee passed to the corporation, but clothed with a trust to keep the same open as a public street for the public benefit.

4th. The act of. 1818, was constitutional, because it merely gave the assent of the legislature that, upon paying all who were injured, this trust should be extinguished, when the public benefit required it; and the property might be held and disposed of for public uses, or applied to the satisfaction of those to whom damages were awarded.

5th. The form of the report in this, and the John street case, of awarding the sum of one dollar to unknown owners as proprietors of the nominal fee, was irregular, but immaterial. It would have , been sufficient and legal to have reported that the corporation was assessed the particular sum of money, by reason of their taking the land in fee simple absolute, discharged of the basement.

On this, as well as on the other grounds which have been stated, the complaint must be dismissed, with costs.


text:
    Theodore Des Arts and George L. Heuser v. Thomas B. Leggett, George F. Leggett, and John A. Leggett.
    The plaintiff agreed, upon the sale of goods to one, to take the note of a third person in payment. The goods were delivered upon tender, he refused to take the note, having heard some rumors, in the interval, to the discredit of the maker. The plaintiff (the seller) remained, for several months afterwards, without demanding it.

      Held, that the purchaser had a right to dispose of the note, for his own purposes, as he thought proper. But that he had also the right to retain the note, and upon being sued for the price, to make a proffer of it; when the question as to whether the seller was bound to take it would be disposed of.

      Held, that under the circumstances of the case, the purchaser had not exercised a disposing power over the note, by an assignment which he had made; but was to be treated as still retaining the control of it, to answer for the price of the goods to the seller.

      Held, that the defendants, the makers of the note, were responsible to the plaintiffs for the amount. That the latter had an interest which entitled them to sue.
    In case of a note not in fact negotiable, when the claim is made by the original party to whom it is given, the destruction of the note is matter of fact for the jury to determine; and, if established, no indemnity is requisite. Perhaps, in a doubtful case, the analogous rule of a Court of Chancery may justify the court in demanding it.
    The Revised Statute, (2 R. S. p.406, §§ IS-?6,) is limited to negotiable paper, and to a lost bill or note. The party has a right to require indemnity before payment, but may waive it and obtain it at the trial
    (Before Dues, Campbell and Hoffman, J.J.)
    December 11, 31, 1855.
    The case came before the court upon a verdict found for the plaintiffs, by direction of the court, for the amount of the promissory note in question, and interest, subject to the opinion of the court at General Term, upon a case to be made, with liberty to either party to turn the same into a bill of exceptions, or special verdict.
    The case is stated in the opinion of the court.

      M. Porter, for the plaintiff.

      D. D. Field, for the defendant.
   By the Court. Hoffman, J.

The facts of the case upon which the rights of the parties, in my opinion, depend, are these.

The plaintiff’s action is upon' a promissory note made by the defendants, Leggett & Brothers, for the sum of $943.13, to their own order, and endorsed by James H. Benedict & Co., who transferred the same to the plaintiffs. They aver, in the complaint, that, while such note was owned by them, it was accidentally destroyed by fire.

The firm of James H. Benedict & Co. agreed with the plaintiffs, on the 29th of October, 1853, to purchase of them a quantity of rags, at a certain price. The purchasers offered to give in payment, their own note at six months, or the note of Leggett & Brothers (the defendants) at six months, without recourse. After some inquiry, the plaintiffs accepted the last offer, and wrote the following note to Benedict & Co.:

“Hew York, October 29th, 1853.
“ Gents :—We accept your offer of the ninety-five bales of rags, viz., three and three-fourths, six months, Leggett & Bros.’ paper. Please let the bearer know whether we shall turn them out.”

On the same day the plaintiffs made out a bill as follows:

“Hew York, October 29th, 1853.
“ Messrs. J. H. Benedict & Co., bought of Des Arts & Heuser, ninety-five bales of rags, (marks given and price,) $945.13, against six months’ note Leggett & Brothers.”

The goods were delivered on the same day.

The day of this transaction was Saturday. At that time, Ben edict & Co. had in their hands a large amount of the notes of Leggett & Brothers. After the bargain, Benedict & Co. surrendered one of such notes, and replaced it with the one in question, to make the amount correspond with the price of the rags.

This was on Monday or Tuesday—most probably it was Tuesday,, the 1st day of Hovember. On Wednesday, the 2d of Hovember, Benedict & Co. tendered the note to the plaintiffs. They refused to receive it. On Monday, they had heard rumors of Leggett & Brothers being in difficulty. On Tuesday night, Benedict & Co. heard similar reports. Benedict, the witness, admits, that when the note was tendered, there were rumors against the defendants. On Thursday, the 3d of November, they stopped payment.

The note in question was dated the 29th October, 1853, at six months, for $943.13. It fell due the 2d May, 1854.

It was put in a desk in the store of Benedict & Co., on the evening of the 4th of March, 1854, and the store was burnt on the morning of the 5th of that month. The witness, Benedict, states, that the note and the original bill were burnt with it.

Matters thus remained until five or six months after the fire, that is, until August or September, 1854, when, for the first time after the transaction, the plaintiffs made any communication upon the subject. Mr. Heuser, one of them, then asked about the note, and said they must have their pay from somebody; that they should proceed to get their money from some one.

On the 4th of March, 1854, Benedict & Co. executed an assignment to one William H. Leggett, not a member of the firm, of a large number of promissory notes, amounting to over $16,000, upon a consideration paid by him. And on the same day, they entered into a special arrangement as to the note in question, in common with two other notes. In this they recite that there was a suit pending in the Superior Court, in which they were plaintiffs, and Cyrus W. Field and others were defendants, and that they had also had business transactions with Des Arts & Heuser, out of which they were apprehensive that litigation might arise between them, and that the said three notes might be necessary for the purposes of the said action, and of the said apprehended litigation. Therefore it was stipulated that nothing in the instrument should be construed to operate as an absolute assignment of their interest in such three notes, or to prevent any appropriation of the same as they saw fit. If it was necessary to make such appropriation, the consideration received therefor, from William H. Leggett, should be returned to him. A schedule annexed specifies the note now in suit. The consideration paid was thirty cents on the dollar.

Benedict, the witness, and member of the firm, states, that at the time, he told William H. Leggett all about the note—the sale of the plaintiffs, &c.,—that the note did not belong to their firm; that it was the property of the plaintiffs; that they could not sell the note for thirty cents, as they would thereby assume seventy cents. • The note never was given up, or passed to Leggett. It was retained by the counsel, and it appears that the counsel (it being Saturday night) left the notes with Benedict & Co., for safe keeping, on the 4th of March. The store, was burnt, as before stated, on the 5th.

We consider that the questions, some of them of difficulty, which have been discussed, as to the right of property, and the responsibility for property after a tender and refusal, have very little bearing upon the case. It is needless for us to decide the delicate question, whether the plaintiffs were not justifiable, on Wednesday, in .rejecting the note, and resorting to Benedict & Co. for payment of the price. We find here, an agreement to take the promissory note of a third party in payment of goods purchased. We find a positive refusal, upon tender, to take such note. We find, that for five months after the refusal, and three months after the maturity of the note, the seller never applies for it—in effect he persists in his rejection. The purchaser, in our opinion, had then an undoubted right to dispose of the note as he chose. After the refusal, it was at his option, to hold it as bailee, and whenever payment was demanded, to insist upon giving it up as satisfaction; or to appropriate it to his own purposes, and leave the seller to any remedy for the price he might possess. Especially in relation to commercial paper, we conceive that it is prescribed by mercantile facilities, and the needs of business, as a true principle of justice, that such a right should exist. To prohibit the holder of mercantile paper from using it in any form, because it has been rejected by one to whom he had undertaken to transfer it, would be to chain up a species of circulation until the caprice or interest of another shall release it.

Whether,, then, the refusal of the plaintiffs in this case, to take the note of Leggett & Co. was warranted or unwarranted, is immaterial. They did refuse it. For five months they never recalled the refusal. Benedict & Co. had a plain right to part with the note. They could elect to leave the plaintiffs to any action against themselves for the price, dealing with the note as they chose, or to retain the note, to be proffered when an action was brought against them.

Thus, the question in the cause is really reduced to this.—Have Benedict & Co. parted with the note, that is, in such a way as to give a right to it to another, so as to show that the plaintiffs are not the owners, or to show that they are not the absolute owners ?

The question depends upon the agreement and instrument of the 4th of March, coupled with the competent parol testimony as to facts connected with it. It is of much importance to notice, that down to the 4th of March, Benedict & Co. had not exercised the right of treating the note as their own property. On the contrary, Benedict swears that they considered it as belonging to the plaintiffs. Had they passed it away—had they ever made a general assignment of their property—it would have been rightly transferred. But they clearly assumed to hold it down to that time on behalf of the plaintiffs. We thus arrive at the true construction and effect of the instrument of the 4th of March, 1854.

It cannot be disputed that Benedict & Co. retained, under this agreement, the right to the possession of the note, and to extinguish all the claim of William H. Leggett upon it, on repaying the thirty cents advanced. Leggett had but a lien upon it for such repayment by Benedict & Co. The sensible construction of the agreement appears to us to be, that Benedict & Co. reserved the right of saying, We will appropriate this note in payment of the rags, to the plaintiffs, if they claim it. Then we will repay you the advance. The plaintiffs do claim it by the present action. One of the firm sustains the claim. In his own language, the note is used by them on behalf of the plaintiffs. The firm consent to the present action.

The result is, that the plaintiffs have a right to recover in fall, and William H. Leggett is left to reclaim the amount of his advance.

In relation to the question of indemnity, as for a lost note, we are of opinion that it is to be governed by the Revised Statutes entirely. The case of Smith v. Rockwell, (2 Hill, 482,) applies to the simple case of a maker of a note not in fact negotiable, apd actually destroyed. A distinction is to be found, and is a very proper one, between notes negotiable and others. Before the Revised Statutes, it was held, that where a note was lost or destroyed, and the fact did not appear whether it was negotiable or not, the the court would not presume it to have been negotiable; but if it appeared to have been negotiable, the plaintiffs could not have recovered in a court of law. (10 John. Rep. 104; 3 Wendell Rep. 344; 3 Cowen Rep. 303.)

The Revised Statute, (2 R. S. 406, §§ 75, 76,) is limited to negotiable paper, and the indemnity can be given upon recovery of judgment, (12 Wendell Rep. 174.) It is in terms also limited to a lost note or bill.

It would seem, however, that a proffer of indemnity, before commencing a suit, may be required. We understand the case of Smith v. Rockwell, (2 Hill Rep. 482,) to admit of this distinction ; that as it is the right of a maker or endorser to require indemnity before payment, he may impliedly waive it, and does so by omitting to demand it. And in such a case, the statute allows him to obtain it upon the trial.

We consider the rule to be settled, that in a case like the present, of a note not, in fact, negotiable, (as the endorsement here was, doubtless, without recourse,) and when the claim is made by the original parties to whom it was given, the destruction of the note is matter of fact, to go to the jury; and, if established, no indemnity is requisite. Yet, in a doubtful case, it may be that the analogy of the statute as to a lost note, and the rule in a Court of Chancery, may justify the court in requiring it.

Judgment will be for the plaintiffs, for the amount of the verdict, with interest and costs.


text:
    Joseph Naylor v. George G. Glasier.
    A permit was granted to the defendant by the deputy street commissioner, to place bricks on the carriage-way of a street, in front of a building he was erecting. This was dated the 21st of May, 1864. On the 2'7th of May, a notice to remove them was posted upon the pile, signed by the defendant, commissioner of streets and lamps.

      Held, that under the ordinances of the corporation, the power to order such a removal of an obstruction was vested in the superintendent of streets, at that time another person.

      Held, that no power is given by the ordinances to the deputy street commissioner to grant a permit, and that a delegation of power by the street commissioner must be proven by writing, or a custom sufficient to show his consent.
    There seems a concurrent power exercised by the street commissioner and the superintendent of streets, to order a removal of obstructions, and, by inferenbe a power to permit its continuance.

      Quere, whether the provision of the ordinance of 1845, as to giving notice by putting it upon the thing to be removed, is not now in force.
    (Before Doer, Campbell and Hoffman, J.J.)
    December 31, 1855.
    Appeal from a judgment upon a verdict in favor of the plaintiff, against the defendant, for $221.12. A bill of exceptions was duly made.
    The action was for the unlawful taking from the defendant’s possession certain bricks, on or about the 7th of July, 1854; that such bricks belonged to the plaintiff, and were of the value of $350, and that the defendant converted the same to his own use.
    The defendant justified the taking as an officer of the corporation of the city of New York, and as acting under the sanction of certain ordinances, and the authority of an officer, to whom the power was given of directing the removal of any articles encumbering the side-walks or streets.
    The other material facts are stated in the opinion of the court.

      R. J. Dillon, for the appellant.

      Parsons, for the respondent.
   By the Court. Hoffman, J.

Upon the appeal from the judgment in this case, two questions arise. First, whether the permit granted by the deputy street commissioner, to encumber the street by allowing the bricks to be placed upon the carriageway, was a lawful permit. This question arises under the excep- ' tion of the plaintiffs, to the charge of the Judge.

Next. Whether the notice to remove the bricks was sufficient; and whether the charge of the Judge was in this particular correct.

It is obvious, that if the permit was lawful, the removal was illegal. It must be so even if the defendant was ignorant of the permit.

On the 22d of May, 1854, a permit was granted by Charles Turner, deputy street commissioner, as follows:—“ Permission is given to Joseph Naylor, to place material on the carriage-way of the street in front of the building to be erected S. W. comer of Broadway and Chambers street, for three months, provided such materials do not occupy more than one-third of the carriage-way in width, to be not more than ten feet in height, and one hundred feet in length of such carriage-way; and also, that the gutter along the sidewalk be kept clear and unencumbered to the breadth of two feet, and that the street remain so encumbered during the pleasure of the street commissioner.”

It is in evidence that the street commissioner is in the habit of giving such permits to builders to encumber streets during the progress of tearing down old buildings.

On the 27th of May, 1854, before twelve o’clock at noon, the notice to remove the bricks was posted upon the pile. It directed the removal on or before the 28th, at twelve o’clock, or the bricks would be taken to the public yard, to be disposed of, as the ordinances of the corporation direct, and was signed by the defendant, as commissioner of streets and lamps.

On the 29th of May, and between seven and eight o’clock in the evening, the bricks were delivered to the keeper of the corporation yard.

On the 7th of July, the plaintiff, for the first time, communicated with the defendant as to the removal of the bricks. The son of the plaintiff then went to the office to inquire where the bricks were; he was informed they were in the corporation yard. He asked for a bill, which was given him, dated Thursday. The charges are for cartage of 210 loads, and storage for forty days, $504.

It is plain that the plaintiff knew where to apply for his bricks, and that the amount of the last item is attributable to his own neglect or speculation.

The defendant, in his answer, justifies his removal of the bricks, under the 318th and 325th sections of the ordinance organizing the department, passed May 30th, 1849. The defendant was, at the time, commissioner of streets and lamps, the chief officer in the department of streets and lamps. ° In this department is a bureau, denominated “ The Bureau of Cleaning Streets,” charged with the duty of cleaning the streets,% and removing encumbrances therefrom, the chief officer of which is the superintendent of streets.

He then states, that the bricks were encumbering and obstructing the streets, and that Erastus W. Glover, being at that time superintendent of streets, and chief officer of the bureau, did, in conformity with the ordinance aforesaid, order the bricks to be removed from the street, and on the failure of the owner to remove them, the said Glover did remove them to the public yard.

The charter of the 2d of April, 1849, provided, (§ 12,) that there should be an executive department, under the denomination of “The Street Department,” which shall have cognizance of opening, regulating, and paving streets, building and repairing wharves and piers, digging and building wells, and the construction of public roads when done by assessment: the filling up of sunken lots, under the ordinances of the common council, from the city inspector’s department. It shall also have cognizance of collecting the assessments connected with such expenditures. The chief officer shall be called the street commissioner. (Davies Laws, p. 206.)

The 11th section provided, that there shall be an executive department, to be denominated “ The Department of Streets and Lamps," which shall have cognizance of procuring the necessary supplies for, and of lighting the public streets and places lighted at the expense of the corporation, and of cleaning the public streets, and of collecting the revenue arising from the sale of manure, and also of transferring the butchers’ stalls in the public markets, the commissioner of streets and lamps. “ There shall be three bureaus in this department, and the chief officers thereof shall be called the superintendent of lamps and gas, superintendent of streets, and superintendent of markets.”

By the 19th section, it is declared lawful for the common council to establish such other departments and bureaus as they may deem the public interest may require, and to assign to them and those herein created, such duties as they may direct, not inconsistent with this act.

It would be very difficult to say to which department, under the charter, the power of removing obstructions on streets had been conferred. If upon the street department, it is solely by force of the word, “ regulating,” in the 12th section.

In the history of laws and ordinances respecting the streets of New York, I apprehend the received meaning of the word “regulating,” was the patching, grading, levelling, raising, or amending the streets. These are the phrases used in the act of 1813, (section 175,) copied from former statutes.

If the department of streets and lamps claims the right, it is only by force of the power of supervising the cleaning of the public streets. This is, perhaps, a still slighter foundation.

I have not a doubt that an ordinance of the corporation, giving the power of removal, or of permission to obstruct, to either of these departments, or to any other department, would be perfectly valid.

The ordinances of May 30th, 1849, were adopted to carry out the new organization of' the city government.

Title 4 is entitled, “of the street department,” in the first article, and repeats, verbatim, the powers given in the 12th section of the charter.

The second article is entitled, “ of the street commissioner, his deputy, and clerks.”

By the 163d section, power is given to the street commissioner to direct the removal of any article or thing whatsoever, which may encumber or obstruct a street, wharf, or pier, in the city.

The second chapter of this article regulates the office of deputy street commissioner. No authority is given to him to direct the removal. The only section which bears upon the point, is the 184th, directing that he may perform such, duties as shall be assigned to him by the street commissioner. This means, that he may be authorized to perform a power vested in the commissioner; but there must be a regular written delegation, or such a custom known to the commissioner, as is equivalent to it.

The 286th section, under title 4, of the department of streets and lamps, repeats the language of the 14th section of the charter, but adds, after the words, “ cleaning the public streets,” &c., the clause, “ and removing encumbrances therefrom. ”

By the 311th section, under the head of “ the bureaus of cleaning streets,” the chief officer is called the superintendent of streets, who is charged with the duty of cleaning the public streets, and of removing encumbrances therefrom.

The 318th section is as follows:—“The superintendent of streets is hereby authorized, and it is made his duty, to order any article, or thing whatever, which may encumber or obstruct a street, wharf, or pier, to be removed, and if it be not removed within twenty-four hours thereafter, to order it to be removed to the yard occupied by the superintendent of repairs, or other suitable place.”

By the 316th section, he is to report to the commissioner of streets and lamps all violations of any contract for cleaning the streets, and any omission or neglect of any person whose duty it is to inspect the streets or roads, or to prevent any encumbrance thereof.

The 321st section allows a redemption of the articles by the owner, upon payment of the necessary expenses of the removal, together with six cents per day, for every cart-load thereof, during the time it remains unclaimed.

The 325th section provides, that the superintendent of streets shall, in all matters connected with Ms bureau, be under the control, direction and supervision of the commissioner of streets and lamps, who may approve or disapprove all accounts certified by Mm, &c.

It appears to us very clear, that the commissioner of streets and lamps has no power to order a removal. It must come from the superintendent of streets. It is an authority which the common council had the power to give to the officer, and they have given it, expressly, to the superintendent; and have not given it to the commissioner. The 325th section by no means bestows this authority on the latter.

It is also clear, that there is no express provision, authorizing any one to give a permit to obstruct; but it may be well concluded, that a power to order a removal involves this authority.

And then we have the anomalous and inconvenient rule existing, of a concurrent power in the street commissioner, under the 163d section, and of the superintendent of streets, under the 318th section, to order a removal; and a power in each, by inference, to allow the obstruction to remain.

The result appears to me clear. The permit given by the deputy street commissioner was invalid. The notice to remove the bricks, by the commissioner of streets and lamps, the defendant, does not appear to have been authorized by the superintendent of streets, and was void. It is to be noticed, that the answer places the defence upon an order, made by E. W. Glover, then being superintendent of streets; and that he did remove the same. But there is not any evidence, whatever, to prove an authority derived from him.

We consider that the views now taken are sufficient to dispose of the case, without passing upon the question of the sufficiency of the notice, by posting it upon the pile of bricks. That question, is one upon which some of the court entertain great doubts. It may be observed, that in the ordinances of 1854, (chap. 24, title 2,) the second section gave the street commissioner power to order the removal of any obstruction or encumbrance; and the third section directed the mode of service of the order, either personally, or by leaving it at the house or place of business of the owner, occupant, or person having charge of the house or lot, in front of which the encumbrance may be, or by posting the said notice, or order, upon such encumbrance or obstruction. (Page 288.) A similar provision is found in the ordinances of 1839, (p. 193;) of 1833, (p. 57, sections 23 and 24.)

In 1817, (p. 22, § 15,) the ordinance directed a personal service on the owner, occupant, or person in charge of the above house or lot, in front of which the obstruction or encumbrance might be.

It is to be noticed, that the general repealing clause, in the ordinance of 1849, (§ 509,) repeals all ordinances and resolutions inconsistent with that ordinance. No direction is contained, in any part of the ordinance of 1849, as to the mode of service; and it may be a point of no little consequence, whether the whole provision of that of 1845, as to such mode of giving service, is not nowin frill force.

It should also be observed,-that, even if the fifth section of title 2, of the ordinance of 1845, recognizing the right of the street commissioner to give a permission to obstruct a street, is strictly in force, it seems to be superfluous, for the power to order the removal, implies a power to permit an encumbrance to remain. That power rests in both the street commissioner and superintendent of streets, as before observed. And it may deserve consideration, whether it should be allowed to continue concurrent.

The judgment recovered must, therefore, be affirmed, with costs.