text:
    Rachel A. Woolsey, Respondent, v. The Trustees of the Village of Ellenville, Appellant.

      Personal injury — negligence — variance between the allegations of the complaint and the proof as to the cause of the injury.

    In an act.on brought to recover damages for a personal injury alleged to have been caused through the defendant’s negligence, the plaintiff cannot allege in his complaint one thing as the proximate cause of his injury and upon the trial prove another to have been such proximate cause.
    In an action brought against a village to recover damages for a personal injury received by the plaintiff through falling on an icy sidewalk, the complaint alleged that travel on the sidewalk was rendered dangerous at the place in question by a hole or depression in which snow and ice accumulated ; on the trial the plaintiff was permitted to give evidence, without the complaint being amended, that the dangerous condition of the sidewalk resulted from the overflow of water and formation of ice caused by a defective ditch, or an obstruction of the ditch, along a cross street, and this theory of the cause of the injury was submitted by the court to the jury, which found a verdict for the plaintiff.

      Held, that such reception of evidence as to a cause of the injury not alleged in the complaint, and its submission to the jury, were improper.
    Appeal by the defendant, tlie Trustees of tbe Tillage of Ellen-ville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Ulster county on the 27th day of June, 1892, upon a verdict rendered at the Ulster Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      G. G. <& J. B. Keeler and A. T. Glecvrwater, for the appellant.

      John K. Van Etten, for the respondent.
   Herrick, J.:

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendants, in an action for personal injuries alleged to have been caused through the negligence, of the defendants.

The plaintiff in her complaint alleges “ that on, or about, the 11th day of December, 1886, and for a long time prior thereto, a dangerous hole or depression existed in the sidewalk of said Canal street, along its westerly side, nearly opposite a place called the ‘ Tannery ’ into which hole or depression in said sidewalk, water and snow were allowed to accumulate, and form into ice, rendering travel thereon unsafe and dangerous.”

The plaintiff testified that on the night of the 11th day of Decern-. ber, 1886, she fell upon the ice at the place described in the complaint ; that she visited the spot next morning, and found a glare of water ice through which she could see the sidewalk ; she claimed that there was a cracked or broken stone where she fell, in which the water had accumulated; there was snow upon the ground at the time, and the evidence is that for several days prior to the accident the weather had been such as to cause alternate thawing and freezing. There is some conflict of testimony as to this alleged hole or depression in the sidewalk, the plaintiff claiming that there was a piece of stone broken out, leaving a Y-shaped hole. The defendants contended, and produced evidence to support them, that it was merely a crack across the flagstone, and a slight depression of the edges of the crack, which would hold but a few teaspoonfuls of water.

Canal street is a- village street, and at the place in question the sidewalk was flagged, and the sod and earth upon each side of the flags appear to have been slightly higher than the stone of the sidewalk.

The evidence tended to show that west of Canal street there is a natural elevation of land descending slightly towards the sidewalk, from which, in case of storm or thaws, when snow is upon the ground, the water would run over and upon the sidewalk of said street.

At a distance of about twenty or more feet from where plaintiff fell, Canal street is crossed at nearly right angles by Cross street; on each side of Cross street there is a ditch to carry off surface water, which ditch is bridged over by the flag or crosswalk stone at the intersection of Cross and Canal streets.

Under the objections of the defendants, the plaintiff, upon the trial, introduced evidence tending to show that the ditch on the southerly side of Cross street was insufficient in size; that the hole under the crosswalk stone was also insufficient in size and improperly located to allow the water to pass through from the ditch; that the ditch itself had been permitted to become obstructed, and the hole under the crosswalk stone to become choked up, and in consequence the water which should have been conducted away by the ditch, was caused to flow over the sidewalk of Canal street; and the' plaintiff claimed that it was such water remaining upon the sidewalk, in the depression that she claimed existed, which froze, forming ice upon which she fell.

In charging the jury, the court laid great stress upon the alleged defect in and obstructions of the ditch on Cross street. The court charged that: “ It is alleged, as I have said to you, -and it is upon that theory that an action must be maintained, if at all, that there was a defect in the construction of that ditch on the southerly side of Cross street, at or about the point of its intersection with the westerly side of Canal street, so that the water, by reason of this defect, was discharged, not through the sewer or ditch on the westerly side of Canal street, but especially at the time of a heavy rain or melting of snow a volume of water was discharged over Canal street, and allowed to congeal. Or further, it is alleged that there was an obstruction or defect in that outlet; that it was permitted to be filled by an accumulation of ice and other matter, so that the aperture, or that the cavity there designed for the water of Cross street, or from the southerly half of Cross' street, to discharge from could not go into that cavity or aperture, by reason of this obstruction, but on the contrary was discharged upon Canal street. It is upon that theory that the plaintiff must succeed in this action, for if the ice existed there on Canal street — if you find that ice did exist there at the time of this accident, and that was formed by reason of water, melted snow, running easterly from the slope of the land, the natural slope of the land lying to the west of Canal street, that that was the natural result or effect of water flowing from the westerly side, from the slope which has been described to you ; if you find a slope of that hind existed, then it was a condition of things for which this defendant could not legally be liable. And so, I think, this action depends upon the question of the construction of the ditch on Canal street on the westerly side, the construction of the ditch of Cross street on the southerly side, or of the obstruction of the outlet at the intersection of the two.”

Then, after charging the jury upon the question as to whether there was or was not a dangerous hole in the sidewalk on Canal street, and as to whether as a matter of fact, there was ice on the sidewalk on the 11th day of December, 1886, and also upon the principle that where there are two causes which may have produced the injury, for one of which causes the defendants are responsible, and the other for which they are not, that it is incumbent upon the plaintiff to show that the accident happened as the result of that cause for which the defendants are responsible, the court proceeded to charge as follows :

“ So you come back to the question: Was this injury the result and consequence, a legitimate consequence, of the condition of the cavity or aperture at the juncture of those two sewers, or rather at the place where the Cross street sewer was designed to empty into the Canal street sewer? "Was it the result of the imperfect construction of those in the first instance, or of the obstruction ? That is the serious question for your consideration. It is claimed upon the part of the plaintiff, as I have said to you, that it was improperly constructed, and that obstructions to the natural flow of the water from Cross street sewer into Canal street were permitted to exist, and were permitted to exist for such a length of time that negligence upon the part of the defendant can be imputed.”

It will thus be seen that the case was principally tried and presented to the jury upon the question as to whether the defendants had been derelict in their duty in the constructing and properly maintaining the ditch on Cross street, and that the question was presented to the jury as to whether the defect and obstructions in such ditch were the proximate causes of the plaintiff’s injury; this was a departure from the plaintiff’s complaint; it was a different cause of action from that set forth in the complaint; it was a different and distinct charge of negligence from that alleged in the complaint. The complaint set forth one claim of negligence, and a different one was presented to the jury. The view which the trial court took of the. case seems to me to be made perfectly clear in that portion of the charge in which the court stated that if the ice upon which plaintiff fell “ was formed by reason of water, melted snow, running easterly from the slope of the land, the natural slope of the land lying to the west of Canal street, that that was the natural result or effect of water flowing from the westerly side, from the slope which has been described to you ; if you find that a slope of that kind existed, then it was a condition of things for which this defendant could not legally be liable.” Thus, holding the defendants liable, not for the hole in the sidewalk, but for faulty construction and obstruction of the ditch.

If the hollow or dangerous hole existed in the sidewalk as alleged in the complaint, and water formed in it causing the accident, it would be of no consequence where the wáter came from. No matter whether it came there by reason of negligence of the defendants or not, if the dangerous hole existed by reason of the defendants’ negligence, that would fix their liability, not the source from which came the water that filled the hole and subsequently froze. The error in this case, it seems to me, consists in this, that the proximate cause of tbe accident alleged in the complaint is different from the proximate cause attempted to be proved upon the trial, and presented to the jury by the court. The reception of the evidence in relation to the faulty construction of the ditch and its obstruction was objected and excepted to upon the trial, and also the charge of the court in which it submitted to the jury the question of the defendants’ liability because of the alleged faulty construction and obstructions of the ditch or gutter.

The complaint was not amended or sought to be amended upon the trial, so as to set forth the different cause of action sought to be established. In an action for negligence, I do not think it proper for the plaintiff to allege in his complaint one thing as the proximate cause of his injuries, and upon the trial prove another as the proximate cause. It is a fundamental law of pleading and of evidence that the proof must follow the allegations of the pleadings, and the plaintiff can only recover upon the cause of action stated in his complaint. (Reid v. McConnell, 133 N. Y. 425; Day v. Town of New Lots, 107 id. 148; Truesdell v. Sarles, 104 id. 164; Wright v. Delafield, 25 id. 266.)

Judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed, a new trial ordered, costs to abide the event.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Joseph G. Benton, Appellant, v. Benjamin W. Winner and Charles A. Draper, Respondents.

      Complaint against a firm covering a period in which the membership changed — misjoinder of causes of action.

    A complaint, to recover for goods sold to a firm during a period in which the complaint states that the firm name remained the same but the membership changed, which names as a defendant a person who it shows was a member of the firm during a part only of the period in suit, without stating that he agreed to pay the debts of the firm for the portion of the period covered by the complaint when he was not a member, is demurrable on the ground of a misjoinder of causes of action, in that all of the causes of action set forth in the complaint do not exist against all of the defendants.

      Appeal by tbe plaintiff, Joseph G-. Benton, from a judgment of the Supreme Court in favor of the defendant, Charles A. Draper, entered in the office of the clerk of Sullivan county on the 27th day of May, 1892, upon an order made at the Sullivan Circuit and Special Term, sustaining the demurrer of the said defendant Charles A. Draper to the plaintiff’s complaint.

      Aljpheus Potts, for the appellant.

      T. F. Bush, for the respondent Winner.

      Marvms c& Ilcmford, for the respondent Draper.
   Herrick, J.:

This is an appeal from a judgment rendered upon a demurrer interposed by the defendant, Charles A. Draper, to the complaint of the plaintiff.

The plaintiff, in his complaint, states that during the year 1885 Benjamin W. Winner and one John Babcock were copartners in business under the firm name and style of B. W. Winner & Co., and as such copartners carried on the business of buying and selling wood.

That on or about the 1st day of January, 1887, the said firm of' B. W. Winner & Co. received into said copartnership as equal partners Albert H. Sewell and Charles A. Draper. That the name and style of said firm remained unchanged. That on or about the 1st day of April, 1888, Albert H. Sewell and John Babcock sold out all their interests in the said copartnership and in the business of the firm to the defendants Winner and Draper, who assumed and agreed to pay all the outstanding debts of said firm, and continued the business of buying and selling under the firm name of B. W. Winner & Co., and they continued the business of such copartnership until on or about the 1st day of November, 1888.

The plaintiff further states that between the 1st day of January, 1885, and the 1st day of November, 1888, he sold and delivered to the said firm of B. W. Winner & Co. wood in each and every of said years, amounting to about the sum of $5,859.58.

At different times between the same dates the said firm of B. W. Winner & Go. paid the plaintiff about the sum of $1,201.58, leaving a balance clue the plaintiff, on the 1st day of November, 1888, of $1,658, exclusive of interest, for which sum he demands judgment against the defendants, jointly and separately.

It will be observed that while in form the plaintiff sets forth but one cause of action, yet from his statement of facts there are three separate causes of action involved. While all his sales are alleged to have been to the firm of B. W. Winner & Co., still as matter of fact his sales from 1885 to the 1st day of January, 1887, were to whatever persons that firm was composed of, Benjamin W. Winner and John Babcock, and they alone were responsible to him for the sales made to the firm during each of those years. From the 1st day of January, 1887, until the 1st day of April, 1888, the firm was composed of Benjamin W. Winner, John Babcock, Albert IT. Sewell and Charles A. Draper; they were responsible for merchandise sold to the firm between those dates, and such sales constituted a separate and distinct cause of action in favor of the plaintiff against such persons.

The new copartners in the firm, Sewell and Draper, not having agreed to pay the debts of the firm as it existed from 1885 until the 1st day of January, 1887, they are not responsible to the plaintiff for the goods sold by him to the firm during those years. (Serviss v. McDonnell, 107 N. Y. 260.)

From the 1st day of April, 1888, until the first day of November of the same year, the copartnership was composed of the defendants Winner and Draper, and the merchandise sold by the plaintiff to the firm during that time constituted a third cause of action. It follows from this that there is a misjoinder of causes of action in the complaint; that all of the causes of action set forth in the complaint do not exist against all of the defendants.

That as to the first cause of action, that is, for the merchandise sold from 1885 to January 1, 1887, there is a misjoinder of parties defendant.

The defendant Draper, not being a member of the firm during that period; and not having assumed to pay its debts when a new firm was established, January 1,1888, is not liable therefor, the persons liable for the merchandise sold to the firm up to that date being Benjamin W. Winner and John Babcock. All these matters appear upon the face of the complaint.

The judgment sustaining the demurrer should be affirmed, with costs, with leave to the defendant to plead over upon payment of costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment on demurrer affirmed, with costs, with leave to defendant to plead over on payment of costs.


text:
    William T. Hart and Others, Respondents, v. The Ogdensburg and Lake Champlain Railroad Company and Another, Appellants.

      Discovery of boohs and papers — exercise of discretion by the Special Term.

    While the General Term has power to review the exercise by the Special Term of its discretionary powers on an application for a discovery of books and papers under the Code of Civil Procedure (Chap. 8, tit. 6, art. 4, §§ 803, et seq.), it will not reverse the action of the Special Term, unless it quite clearly appears that upon the merits of the motion the Special Term has erroneously exercised its discretion.
    The discretion vested in the court on such an application should be liberally exercised to enable parties to properly prepare for trial.
    Appeal by the defendants, the Ogdensburg and Lake Champlain Railroad Company and the Central Yermont Railroad Company, from an order made at the' St. Lawrence Special Term, and entered in the office of the clerk of St. Lawrence county on the 30th day of January, 1893, granting the plaintiffs’ application for a discovery and permission to take copies of the defendants’ books and papers.

      Louis llasbrouck, Daniel Magone and John C. Keeler, for the appellants.

      Theodore H. Swift, WilUam Caleb Lorimg and Charles O. Tarppcm, for the respondents.
   Herrick, J.:

The granting or withholding an order for a discovery under chapter 8, title 6, article 4 of the Code of Civil Procedure is a matter of discretion in this court, at Special Term, subject of course to review at General Term. (Finlay v. Chapman, 119 N. Y. 404.) While the General Term has power to review the exercise of its discretion by the Special Term, it will not reverse its action unless it pretty clearly appears that upon the merits of the motion the Special Term has erroneously exercised its discretion.

An examination of the printed case in this appeal fails to satisfy me that upon the merits the Special Term improperly exercised the power vested in it.

The discretion vested in the court should be liberally exercised to enable parties to properly prepare for trial; and it seems to me that the reasoning of Justice Harris, in Powers v. Elmendorf (4 How. Pr. 60), applies to the provisions of the Code as they now exist. He there said: I can see no good reason why a party should be permitted to withhold from ■ the knowledge of his adversary documentary evidence affecting the merits of the controversy, only to surprise him by its production at the trial. Unless for some satisfactory reason to be made apparent to the court, each party ought to be required, when it is desired, to disclose to the other any books, papers and documents within his power which may contain evidence pertinent to the' issue to be tried. If the evidence thus disclosed should be conclusive upon the issue the parties may be saved the expense of a trial, and if not, they will come to the trial upon equal terms, each prepared, so far as the evidence within his reach will enable bim to do so, to maintain his side of the controversy. This I believe to have been the intention of the Legislature, and this I regard as the true construction of them enactment on this subject.”

The order appealed from should be affirmed, with ten dollars costs and printing and other disbursements of this appeal.

Mayham, P. J., and Putnam, J., concurred.

Order affirmed, with costs and printing disbursements.


author:
Herrick, J.:
      Clearwater, J.:

text:
    Rebecca Van Etten, Appellant, v. John E. Van Etten, Respondent.

      Action fo-r rent, in a Justice’s Court ■ — ■allegation of ownership ly the defendant— question of title.

    When, in an action brought in a Justice’s Court to recover rent, the defendant alleges in his answer that he is the owner in fee of the premises, title to real property is brought in question.
    When a defendant’s answer, in a Justice’s Court, shows that the title to real property is brought in question, and the defendant delivers to the justice the undertaking required to remove the case, the action is ipso facto discontinued, the justice is ousted of jurisdiction, and any judgment he may render is a nullity (Code Civ. Pro. §§ 2951, et seq.).

    A tenant is not precluded, in an action for rent, from showing that since the execution of the lease he has acquired a title superior to that of the lessor or has acquired the lessor’s title.
    Appeal by the plaintiff, Rebecca Van Etten, from a judgment of the County Court of Ulster county, entered in the office of the clerk of that county on the 21st day of January, 1893, in favor of the defendant, reversing, upon appeal, a judgment of a Justice’s Court in favor of the plaintiff.

      George Van Etten, for the appellant.

      J. E. c& J. G. Van Etten, for the respondent.
   Herrick, J.:

It seems to me that title was plainly made an issue in the case by the defendant’s answer, and that the judgment of the County Court is correct.

The reasons for reversal of the judgment of the Justice Court were satisfactorily and sufficiently set forth in the opinion of the county judge, and I can see no reason for any further opinion.

Let the judgment of the County Court be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.

The following is the opinion of the county judge:

Clearwater, J.:

The plaintiff brought suit in the court below and alleged that on the 1st day of April, 1884, she let and rented to the defendant as her tenant, a farm in the towns of 'Hurley and Kingston for the term of one year at a rental of fifty dollars, payable at the end of the term, she reserving the right to cut and remove firewood and fencing material.

That the defendant entered into the enjoyment of the demised premises under the lease, and has continued in possession since that time under implied contracts of a renewal of the lease on the same terms from year to year, paying each year the' annual rent of fifty dollars, except the rent for the year ending April 1, 1892, which he refuses to pay.

The defendant, in addition to a general denial, pleaded that he is the owner in fee of the premises for the rent of which the plaintiff sues, and that, therefore, the title to real property would come in question, and tendered with his plea the bond required by statute to remove the case to this or the Supreme Court.

The justice held the bond to be of proper form and the surety amply sufficient, hut refused to dismiss the case and proceeded with the trial, rendering judgment in favor of the plaintiff for the amount claimed, with costs.

The defendant appeals, and the only question presented for review is this ruling of the court below. It is provided by section 2951 of the Code of Civil Procedure that The defendant may, either vtith or without other matter of defense, set forth in his answer facts showing that the title to real property will come in question. Such answer must be in writing, and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must thereupon countersign the answer and deliver it to the plaintiff.” t

Section 2952 provides for the giving of the undertaking, which it is admitted was furnished by the defendant.

Section 2954 provides: “ Upon the delivery of the undertaking to the justice the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him if he recovers costs in the new action to be brought • as prescribed in the last two sections.”

It will tiras be seen that upon the defendant’s setting forth in his answer facts showing that the title to real property will come in question and delivering to the justice the undertaking required by the last section, the action is vpsofaeto discontinued, the justice is ousted of jurisdiction, and any judgment he may render is a nullity.

The plaintiff urges on this appeal that the defendant, having originally leased the demised premises from the plaintiff, is estopped from denying her title. That is unquestionably so, unless the defendant, since the execution of the lease, has acquired a title superior to that of his lessor, or has acquired her title. But it is exactly this fact which the defendant has the right to show in bar of the plaintiff’s suit, for it is clear that when the relation of landlord and tenant has existed, and the tenant ceases to hold under the lease, there is no estoppel. Nor is a tenant precluded from showing that the title of his landlord has terminated since the commencement of the tenancy. He cannot, of course, deny that the person by whom he was let into possession had title at that time, but he may show that such title has determined. This can be done in various ways. Eor instance, by an actual eviction, by title paramount, by descent cast, by devise, by purchase, by grant, or by judicial sale, all of which questions are of too grave a character to be determined by a justice of the peace. The Legislature, therefore, has wisely deprived such magistrates of jurisdiction in these cases.

The justice should have dismissed the case as directed by the statute, and his refusal to do so was error, for which the judgment must be reversed.


author: Herrick, J.: Putnam, J.:

text:
    Henry Mott, Appellant and Respondent, v. The Citizens’ Insurance Company, of New York, Respondent and Appellant.

      Míe insurance —interest of the insured — unconditional ownership in fee simple — ■ equitable title not sufficient — severable policy.

    A policy of fire insurance upon a building, and on hay and a hay press therein, with an apportionment of the insurance upon the respective items, contained a provision that the entire policy should be void “if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple ” On the trial of an action to recover for a loss under the policy, it appeared that the insured had no legal title or deed to the land on which the building stood, but he claimed an equitable title to the land under a parol contract, and showed that he was the unconditional owner of the hay and press.

      Held, that even if the insured was the equitable owner of the land (which claim was not made out by the evidence), that fact would not entitle him, under the wording of the policy, to recover for the building.

      Held, however, that the policy was severable, and that the insured was entitled to recover for the hay and press, of which he was the unconditional owner.
    Cross appeals from a judgment of the Supreme Court, entered in the office of the cleric of Clinton county on the 16 th day of March, 1892, upon the decision of the court after a trial at the Clinton Circuit before the court without a jury.
    The action was brought to recover for a total loss, under a policy of fire insurance issued by the defendant to the plaintiff.
    The property covered by the policy was described therein as follows:
    “ The Citizens’ Insurance Company of New York, in consideration of the stipulations herein named, and of eleven and twenty-five hundredths dollars premium, does insure Henry Mott for the term of one year, from the 24th day of July, 1890, at noon, to the 24th day of July, 1891, at noon, against all direct loss or damage b.y fire, except as hereinafter provided, to an amount not exceeding seven hundred and fifty dollars, to the following described property, while located and contained as described herein, and not elsewhere, to wit:

      “ $250 on frame building, occupied as a hay barn, at Rouses Point, Clinton Co., N. Y.

      “ $250 on hay, and
    “ $250 on hay-press, and scale, while contained therein.

      “ $1,500. Total insurance permitted.”

      Wil/mer II. Dwvn, for the plaintiff.

      8. I. Wheeler, for the defendant.
   Herrick, J.:

This case should be affirmed upon the opinion of the court below. Both parties having appealed, the case is affirmed, without costs to either. !

Mayham, P. J., concurred.

Judgment affirmed, without costs to either party as against the other, on opinion of court below.

The following is the opinion of the court below:

Putnam, J.:

The policy provides that it shall be void “ if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.” It is conceded that plaintiff had no legal title or deed to the lot on which the building insured stood, but plaintiff claims that he had an equitable title by parol contract, under which he had been in occupation for ten years prior to the fire. Under some policies of insurance it has been held that the equitable owner of land, who had no deed, might recover under the policy of insurance, as the owner.

Such was the case of Pelton v. Westchester Fire Insurance Co. (13 Hun 23 ; 77 N. Y. 605). And there have been other cases holding the same doctrine as the Pelton case. But under the contract of the parties in this case, under the policy set out in the complaint, it is difficult to see how plaintiff can recover as to the buildings insured. The parties contracted and agreed that the policy should be void if the interest of the plaintiff in the land on which the building insured stood, should be other than unconditional ownership, or if the plaintiff was not the owner in fee simple. It cannot be justly claimed that plaintiff, at the time of the fire, had an unconditional title to the lot in question, in fee simple; hence, under the policy, even if plaintiff had a valid equitable title under his verbal contract, I think he would be unable to recover for the loss on his building.

Under the contract contained in the policy, the plaintiff should have stated his interest in the land, and should have had a special clause written or inserted in the policy. Such a contract as was made in this case between the defendant and plaintiff, has been held valid and binding on the parties. (See Lasher Case, 86 N. Y. 423; Messelback Case, 46 Hun, 414; Dowd Case, 41 id. 139; Allen Case, 123 N. Y. 6.) But, in my judgment, plaintiff failed to show • that he had any valid equitable title to the lots on which the barn stood. His own testimony fails to establish his title.

Iiis evidence shows that he agreed with Hungerford, the agent of the railroad company, that he should have a deed of the lot for $200. Assuming that Hungerford, under the circumstances, had authority to bind the railroad, yet the plaintiff does not show that Hungerford gave him any title, or made, or assumed to make, any contract with him, but merely that Hungerford said that Lawrence, the real estate agent of the railroad company, would transact the business and give him a title, and that he, Hungerford, would notify the plaintiff when to meet Lawrence at Rouses Point.

He does not allege that Hungerford assumed to make a contract with him, or authorized him to take possession of the lot, or that he was in possession under any contract. He merely claims that Hungerford said that Lawrence would contract with him and give him a title. He and Lawrence never did meet; he never paid or offered to pay any consideration, and from all that is shown in the case, the plaintiff was in possession of the lot in question as a mere squatter, without title of any kind, and not under any contract. As far as the case shows, plaintiff was not authorized to take possession in advance of a deed which was expected to be soon executed, but which in fact never was.

I, therefore, conclude that, under the policy, the plaintiff cannot recover as to the buildings. Is the policy also void as to the $500 insurance on the personal property ?

Or, under the contract, is the part as to personal property sever-able from that relating to the buildings ? With some hesitation, I reached the conclusion that the contract as to the hay and press is severable. The policy says that the “ entire policy shall be void * * * jf the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

As to the hay and press, plaintiff was the unconditional owner.

The policy, I think, should not be construed as void in all its parts, because the entire property covered by it, and every part thereof, is not owned unconditionally. This policy does not say that if any part of the insured property is not owned by the insured unconditionally, the whole policy shall be void, as in the case of Smith v. The A. Ins. Co. (118 N. Y. 526). In that case the language of the policy was as follows: It is expressly stipulated in this policy that, if the property either real or personal, or any part thereof, shall be incumbered by mortgage, judgment or otherwise, it must be so represented to the company in the application, otherwise this entire policy, and every part thereof, shall be void.” An examination of the above ease, and those below cited, will show the distinction between cases where policies of. insurance, as to real and personal property, are severable or otherwise. (See Schuster v. Dutchess County Insurance Co., 102 N. Y. 260; Merrill v. A. Ins. Co., 73 id. 452; Dacey v. The A. Ins. Co., 21 Hun, 84; Holmes v. Drew, 16 id. 491.)

Plaintiff then should recover for the hay and press, and interest on the sum insured from the time the loss was payable by the terms of the policy.


text:
    Barrant W. Felthousen, Respondent, v. The City of Amsterdam, Appellant.

      Assessments for local improvements — strict compliance with the statute essential— statutory requirement for assessment against owners or occupants as well as against lands.

    A statute delegating power to charge the property of individuals with the expense of local improvements must be strictly pursued, and any departure in substance from the formula prescribed by the statute vitiates the proceedings.
    When the statute authorizing an assessment for a local improvement provides that the assessment shall be made against both the “ owners or occupants and upon the lands, deemed to be benefited,” a failure to make the assessment against the owners or occupants, by omitting to name them, as well as against the land, is a jurisdictional defect which will vitiate the assessment.
    Appeal by the defendant, the City of Amsterdam, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Montgomery county on the 12th day of September, 1892, upon a decision rendered after a trial before the court without a jury at the Montgomery Circuit.

      Edward J. Maxwell, for the appellant.

      Edwa/rd P. White, for the respondent.
   Herrick, J.:

This is an action to set aside a special assessment upon the plaintiff’s real estate levied to pay the expense of paving Market street in the city of Amsterdam.

The statute in relation to such assessments (§ 95, chap. 131, Laws of 1885), among other things, provides as follows: “ If the common council shall determine to assess the whole or any part of such expense by such special assessment, the said assessors, upon being notified so to do, shall forthwith proceed to make a certificate of such special assessment, entering thereon the names of the owners or occupants of the lands assessed, and what parcels are owned by nonresidents according to tlieir best information, and the name of any corporation or association owning any of the lands. They shall make a just and equitable assessment of the amount fixed by the common council against said owners or occupants, and upon the lands deemed to be benefited.”

A statute delegating power to charge the property of individuals with the expense of local improvements must be strictly pursued, and any departure in substance from the formula prescribed by the statute vitiates the proceedings. (Newell v. Wheeler, 48 N. Y. 486 ; Merritt v. Village of Portchester, 71 id. 309 ; Stebbins et al. v. Kay et al., 123 id. 31.)

In the case before us no assessment was made against the plaintiff as owner, or against the occupants of his property (admitted to be ten in number), the property is not described as non-resident property, the name of the owner or occupant does not appear under the column headed “ names,” the numbers of the lots and the boundaries appear, and that is all. Under the column headed “ description of property ” appears the words, “ stores and lots.”

There -is an entire absence of compliance with the statute in assessing these lands, either as the lands of residents or to the owner or occupant. And such non-compliance I think is fatal. (Cromwell v. Maclean, 123 N. Y. 474-488.)

It seems to me a jurisdictional defect and not a mere irregularity which the court might disregard if it did not appear that the plaintiff had suffered substantial injury thereby.

The case of Haight v. Mayor (99 N. Y. 280) is not in point. It turned upon a special statute which, among other things, provided that “ no tax or assessment shall be void in consequence of the name of the rightful owner or owners of any real estate in said city not being inserted in the assessment rolls or lists. But in such case no tax shall be collected except from the real estate so assessed.” The court then said : This provision clearly indicates that the tax is to be imposed upon the land, and that it is immaterial to its validity that the owner’s name should appear upon the list except for the purpose of imposing upon him a personal liability for the tax.”

In this case the statute just as clearly provides that the assessment shall be made against both the owners or occupants and the lands; it says : “ They shall make a just and equitable assessment of the amount fixed by the common council against said owners or occupants, and upon the lands deemed to be benefited.”

This we have seen has not been done; the provisions of the statute have not been complied with, and as to the plaintiff’s property the assessment should be vacated.

The judgment .of the court below vacating the assessment should be affirmed, with costs.

Putnam, J., concurred.

Judgment vacating assessment affirmed, with costs.


author: Herrick, J.: Putnam, J.: Mayi-iam, P. J.:

text:
    Ellen Wilber, Respondent, v. Daniel Dwyer, Appellant.

      The Oivil Damage Act — exempla/i'y damages.

    The right to exemplary damages under the Civil Damage Act (Laws of 1873, chap. 646) is subject to the same rules as govern other cases, and such damages are not recoverable without proof of facts additional to the facts required to be proved to recover compensatory damages.
    The jury, in an action under the Civil Damage Act, are not at liberty to give exemplary damages upon proof of the bare fact that the defendant sold liquor which caused or partly caused the intoxication in suit, without proof of any additional fact or aggravating circumstance.
    Appeal by the defendant, Daniel Dwyer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Washington county on the 16th day of May, 189'2, upon a verdict rendered at the Washington Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes-

      The Civil Damage Act (Laws of 1813, chap. 646) provides that “ Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her name, against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons, * * * for all damages sustained and for exemplary damages.”

      William 8. Ostrcmder and Jcmies M. Whitman, for the appellant.

      Charles C. Van Kirk, for the respondent.
   Herrick, J.:

This is an appeal by the defendant from a judgment rendered upon the verdict of a jury in an action under the Civil Damage Act, for an alleged selling of liquor by the defendant to the plaintiff’s husband whereby her said husband was rendered intoxicated, and while in such state of intoxication drove to death a horse belonging to the plaintiff, broke her carriage, and also was injured himself, and for the time being caused her loss of support.

The verdict rendered was for the sum of $200. The question as to whether the defendant did in fact sell liquor to the plaintiff’s husband, which was the cause, or partly the cause, of his intoxication, was purely one of fact for the jury. There was evidence to sustain their finding in that respect. .

The only serious question presented to us is one arising upon the charge of the court upon the subject of exemplary damages. The court -said: “You are also at liberty, if you choose to do so, to give what the law calls exemplary damages, that is, damages by way of example as a punishment to deter others from selling whiskey or other spirituous liquors to a man till it in whole or in part produces his intoxication. That part of the law was evidently designed to punish more severely those persons who, seeing that a man was drunk, or even at the verge of intoxication, still allowed him to have liquor at their bars, so that he became completely intoxicated. Of course, a person who sells a glass of beer or moderate drink to a person apparently sober, is not as guilty as one who sells liquor to a man who has already had too much.. That is the reason why the .law allows exemplary damages under such circumstances, that is, to give, in addition to the compensation, another sufficient sum which should act as a punishment or as an example.”

Again, at the close of his charge, after refusing defendant’s request to charge that there was no evidence from which a jury could find damages for anything except the loss of the horse and wagon, and nominal damages for loss of support, the court charged : “ The law gives the right of exemplary damages from the fact of causing the intoxication, in whole or in part, and the injury resulting, if the jury think it is a proper case to award exemplary damages.”

In passing the so-called Civil Damage Act the Legislature created a cause of action theretofore unknown to our laws, and in the, act provided that the jury might award both compensatory and exemplary damages, but did not state upon what evidence either should be awarded; consequently they are subject to the same rules as govern other cases.

Exemplary damages are not recoverable without proof of facts additional to the facts required to be proved to recover compensatory damages. (Reid v. Terwilliger, 116 N. Y. 530; Neu v. McKechnie, 95 id. 636.)

It seems to me that it could be properly inferred by the jury from the judge’s charge that they were at liberty to give punitive or exemplary damages, upon proof of the bare fact that the defendant sold liquor which caused or partly caused the intoxication of plaintiff’s husband, without proof of any additional facts. In other words, that the same evidence, no more, that would warrant them in giving a verdict for compensatory damages, would also warrant them in adding to that verdict punitive or exemplary damages. That, I think, is error. There is nothing in the evidence in this case, that I can discover, that would warrant a verdict for anything more than compensatory damages, and because of the error in the charge, judgment should be reversed, and a new trial granted, costs-to abide the event.

Putnam, J.:

The trial judge charged the jury as follows:

The law gives the right of exemplary damages from the fact of causing the intoxication, in whole or impart, and the imgury result- mg, if the jury think it is a proper case to award exemplary damages. It is not a matter of course.”

It is settled that in actions brought under the Civil Damage Act, a plaintiff cannot recover exemplary damages, unless, besides showing the sale of the liquor, there is evidence produced of some aggravating circumstance, or some fact besides the mere sale of liquor justifying an award of exemplary damages. (Reid v. Terwilliger, 116 N. Y. 530.)

In this case, if the judge had instructed the jury that if they found that defendant sold liquor to the plaintiff’s husband after Tie became intoxicated, or found some other aggravating circumstance, they might award punitive damages, such an instruction would have been proper. But the jury were in fact instructed that the plaintiff might recover exemplary damages from the mere fact of defendant’s causing the intoxication of plaintiff’s husband in whole or in part.

I think the instruction erroneous, and hence that there should be a new trial.

Mayi-iam, P. J.:

I think the court in his charge correctly stated the rule of law in this class of cases, and that the judgment should be affirmed.

Judgment reversed, new trial granted, costs to abide event.


text:
    John H. Van Vechten, Respondent, v. John McKone, Appellant.

      Chattel mortgage on fao'm products —future products.

    A person may mortgage the future product of his farm, or property to be thereafter acquired, but to do so he must clearly express such intention, and the property must be described in the instrument.
    A chattel mortgage of farm stock and farming utensils mentioned among the articles covered by it “35 tons of hay,” and stated, after enumerating the various articles, “ Said property now being and remaining in the possession of” the mortgagor.

      Held, that, as the mortgage made no reference, expressly or by implication, to property to be acquired or produced thereafter, it must be construed to cover only property, including hay, in existence at the time of its execution.

      Appeal by the defendant, John McKone, from a judgment of the County Court of Montgomery county in favor of the plaintiff, rendered upon a trial by the court without a jury, upon appeal from a judgment of a Justice’s Court in favor of the defendant, and entered in the office of the clerk of Montgomery county on the 15 th day of February, 1892.
    The action was brought to recover damages for the conversion by the defendant of fifteen tons of hay, claimed by the plaintiff to be covered by a chattel mortgage executed to him by one John Han-sett, and which had been properly filed. The defendant alleged and proved that he was a constable, and as such had levied upon the hay in suit by virtue of an execution against the property of John Hansett, the mortgagor, in favor of a third party.
    The chattel mortgage in question was upon farm stock and farm utensils, and mentioned among the articles covered by it “35 tons of hay; ” and, after- the list of articles, contained the following words: “ Said property now being and remaining in the possession of John Hansett, in the Town of Duanesburg, Schenectady County, N. Y.”
    The trial court found that “ at the time of the execution and delivery of the said chattel mortgage the said John Hansett did not have in his possession£ 35 tons of hay’ cut and harvested as hay, but that he did have meadow land on the farms in his said possession as aforesaid upon which grass and £ hay ’ was then growing, and that at and prior to the time of the execution of the said chattel mortgage, it was talked over and agreed that there was not then 35 tons of Fay there in the barn, but that said Hansett was to make that amount of 35 tons good from hay that grew that year.”

      Simon Calkins, for the appellant.

      Robert J. Samson, for the respondent.
   Herrick, J.:

I think there can be no question but that a person may mortgage the future product of his farm, or property to be thereafter acquired, but to do so he must clearly express his intention, and the property must be described in the instrument.

A chattel mortgage must contain “such a description of the property covered as will enable third persons clearly to identify the property, when aided by inquiries which the instrument indicates and directs.” (3 Am. & Eng. Ency. of Law, 180.) Such description must cover property in being as well as that to be thereafter acquired.

In McCaffrey v. Woodin (65 N. Y. 464-467), Wisner v. Ocumpaugh (71 id. 113); Coats v. Donnell (94 id. 177); Kribbs v. Alford (120 id. 519); Green v. Armstrong (1 Den. 550); Smith v. Taber (46 Hun, 313); Betsinger v. Schuyler (Id. 352), the instrument, whether lien, lease or chattel mortgage, by apt words and expressions, set forth the intention of covering property to be thereafter acquired, produced or raised.

In the chattel mortgage in this case there is no reference expressly or by implication to property to be acquired or produced thereafter, and being none, the mortgage must be construed to cover only property in existence at the time of the execution of the mortgage.

The hay seized by the defendant under his execution not having been in existence at the time of the execution of the mortgage, was not embraced by it, and the defendant is not liable to the plaintiff for its conversion. It follows, therefore, that the judgment should be reversed.

Mayiiam, P. J., and Putnam, J., concurred.

Judgment of County Court reversed, with costs.


text:
    Abram Schermerhorn, as Commissioner of Highways of the Town of Wilton, Appellant, v. The Mount McGregor Railroad Company, and Frank Jones, Receiver, Respondents.

      Highway changed on construction of a railroad across it — railroad not compelled to restore the abandoned highway.

    In an action brought by a town highway commissioner to compel a railroad company to restore a highway crossed by the railroad to its former condition, there was nothing in the pleadings or evidence to show whether the railroad company did or did not procure the permission of the Supreme Court to use or cross the highway.

      Held, that in the absence of any admission or evidence of the fact that such permission was not granted, the court would not infer that the railroad company proceeded in violation of law, but rather that the law had been complied with.
    In such an action, commenced in 1892, it appeared that the railroad company in constructing its track in 1881, had changed the location of the highway sought to be restored, and bad laid out a new one in its place, which had been used without objection, and that the old highway had not been used since then.
    Held, that the old highway, not having been used or worked for more than six years, had ceased to be a highway;
    That the court would not, in this proceeding, reopen it as a highway;
    That, as the new' road had been used and worked so long, and its location had been acquiesced in, the court was not called upon at this late date to make any change in its location or construction.
    Appeal by tlie plaintiff, Abram Schermerhorn, as commissioner of highways of the town of Wilton in the county of Saratoga, from a judgment of the Supreme Court in favor of the defendants dismissing the complaint, entered in the office of the clerk of Saratoga county on the 29th day of November, 1892, upon the decision of the court rendered after a trial at the Saratoga Special Term.
    The action was commenced in July, 1892. The complaint alleged, that the railroad of the defendant company crossed a certain highway in the town of Wilton leading from Doe’s Corners to the town of Corinth; that “ at the point where the said railroad crosses the said highway at the second crossing thereof from said Doe’s Corners' the said company constructed its railroad over said highway in such a manner and left said highway in such a condition as to render travel thereon over said railroad dangerous and inconvenient, and the said corporation did not restore said highway in such locality to' its former state, or to such state as to not necessarily impair its usefulness as a public highway, and the same has, never been restored,, and the said crossing of said railroad over such highway was left by said company, ever since has been, and now is, in a condition, dangerous to public travel, inconvenient and almost impassable.”
    The complaint demanded judgment against the defendants that “ they forthwith restore said highway at the point designated to its former state, or to such state as not unnecessarily to impair its usefulness at this point; and that a mandatory injunction issue out of this court directing them to do so, or in ease of their failure so to' do, that they be perpetually enjoined from using the said railroad, or exercising any control over the same at the point specified, and for such other and further relief in the premises as may be just and equitable.”
    The evidence on the trial showed that the railroad was constructed in 1881, and that a portion of the highway was then changed and a, new route laid out across the railroad. The contention of the plaintiff was that the railroad company was bound to restore the old highway, and to make a highway crossing at the point where the railroad crossed the old highway, and that the railroad company had no right to change the location of the highway, but should have left the highway -crossing at the same point it was prior to the building of tlie railroad, and have constructed its road so as to pass over the highway at that point.
    It appeared that the route of the new portion of the highway was somewhat shorter than the old portion, which had been abandoned and not used since the construction of the railroad, and that- the new route had been used since that time, and that no objection had been made thereto, until within a year or two before the trial.

      W. B. French, for the appellant.

      O. H. Stm'ges, for the respondents.
   Herrick, J.:

There is nothing in the pleadings or in the evidence to show whether the railroad company did or did not procure the permission of the Supreme Court to use or cross the highway in question, and in the absence of any admission or evidence of the fact that such permission was not granted, the court will not infer that the railroad company proceeded in violation of the law, but rather that the law lias been complied with.

The old highway not having been used or worked for more than six years has ceased to be a highway. (Horey v. The Village of Haverstraw, 124 N. Y. 273.) And the court cannot in these -proceedings reopen it as a highway. The new road laid out in place of the old has been used and worked for so long, and its location acquiesced in for so many years by the town and highway authorities, that I do not see that the court should be called upon at this late day to make any change in its location or construction.

The opinion of the trial court seems to me entirely satisfactory and its disposition of the case correct.

Judgment should be affirmed, with costs.

Matham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


text:
    Frederick Shultz, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Duty of a traveler approaching a. railroad crossing —open gates.

    The duty which ordinarily rests upon a person approaching a railroad crossing, to both look and listen before crossing the tracks, may be modified by circumstances constituting an assurance of safety, such as the fact that gates maintained at the crossing are open.
    The fact, however, that a gate maintained by a railroad company at a crossing is open when a traveler is approaching the track does not relieve the traveler from taking proper precautions for his own safety; it is still his duty to be on the lookout for danger, and to exercise, the same care that a man of ordinary prudence would exercise under the same conditions.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Columbia county on the 1st day of February, 1892, upon a verdict rendered at the Columbia Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      Frank Loomis and L. F. Longley, for the appellant.

      J. Rider Gady, for the respondent.
   Herrick, J.:

This is an appeal from a judgment in favor of the plaintiff against the defendant; the action is founded upon the alleged negligence of the defendant, whereby the plaintiff was injured by an accident which happened at Germantown, in this State. The road of the defendant at that point runs north and south. The station is on the west side of the tracks; the tracks are crossed at two places, one north and the other south of the passenger station. The south crossing is a highway running east and west; on the east side of the defendant’s track, and upon land owned by the defendant, there is a roadway leading from the south to the north crossing, about 104 feet in length. It crosses the railway track, passes around the passenger station of the defendant, and thence goes south until it reaches the south crossing. The west line of this road was about three feet east of the easterly rail of defendant’s track. The roadway was about eighteen feet in width. The traveled portion of it was the easterly part thereof and was between nine and ten feet in width.

The defendant had gates at both the upper and lower crossings, but for some cause they were disabled and had not been in use for some two or three months before the happening of the accident in question, although it appears that upon the day of and after the accident, the gates were both lowered and raised. Upon the highway coming towards the defendant’s station from the east, and which is known as the Germantown road, and at a distance of from 200 to 250 feet from the defendant’s station, there is an elevation from twenty-five to thirty feet in height, and at that point the highway makes a bend to the north as it comes down the hill, and at the foot of the hill it makes another turn to the west and crosses the tracks at the south crossing before spoken of. On the way down the hill and for at least 180 feet before the south crossing is reached, there is an unobstructed view of the defendant’s tracks south for a distance of between three-quarters of a mile and a mile. The whistling post, as it is termed, is about eighty rods -south of defendant’s station.

On the 7th day of April, 1891, the plaintiff was coming over this Germantown highway with a horse and wagon, bringing a calf to defendant’s station to ship over defendant’s road. On his way he picked up a neighbor who had some parcels with him and brought him along. He testifies that as he came down the hill aioproaching the station he looked or listened, he does not say which, but did not perceive the approach of any train. As he arrived at the south crossing and a few feet from the rails of the defendant’s tracks, he stopped to let his passenger out, and then started north along the roadway to the east of the defendant’s tracks to reach the freight depot. He says that just as he started for the upper crossing he looked to the south but saw no train approaching, and as he arrived near the north crossing one of the defendant’s station men hailed him and told him that a train was Coming; his horse became frightened, backed towards the direction of the tracks; almost immediately thereafter the wagon was struck by a train coming from the south, the plaintiff thrown from the wagon and seriously injured.

The plaintiff testifies that he passed over the south crossing twice a day almost every day during the months of January and February preceding the accident, going to and from an ice house upon the river bank near by, where he was employed.

It does not appear from the evidence whether he did or did not know the crossing gates were disabled, but he states that some time in January or February he remembers having seen them closed; that in coming to and from the ice house when he got to the top of the hill before spoken of, if he saw the gates open he drove on. I saw when a train was in sight the gates were lowered, and when a train was past, they would be opened. I have seen them down when they approached the track, and when I saw the gates down some train went past, but never saw a train go by when the gates were standing open.” He also stated that the day of the accident when he got to the top of the hill, he observed that the gates were open; that as he approached the north crossing, he also observed that the gates there were open. The horse the plaintiff drove was one which was afraid of the cars. The testimony shows that as the train was approaching, the whistle was blown at the whistling post, and the bell was rung from that point until the accident happened; but the plaintiff asserts that he heard neither the bell nor the whistle. The passenger who was with the plaintiff states that as they were coming down the road, from the hill, he saw the train approaching, and also saw it approaching when he got out of the wagon, but that lie did not mention it to the plaintiff. At the close of the plaintiff’s testimony the defendant moved for a nonsuit, on the ground that the plaintiff had failed to show any negligence on the part of the defendant, and failed to show freedom from contributory negligence on his own part; the motion was denied, and was again made at the close of all the evidence in the case, and was again denied, and the jury rendered a verdict for the plaintiff.

Ordinarily it is the duty of a person approaching a railway crossing to both look and listen before crossing the tracks, to discover whether there is any approaching train or engine which may endanger his safety while crossing. The evidence of the plaintiff is not satisfactory in that respect, and if there was no other element in the case I would be inclined to hold that he did not sufficiently discharge his duty in that behalf; but the duty of both looking and listening may be modified by circumstances; assurances of safety ■may be held out that will throw the traveler off his guard, and wittingly or unwittingly cause a non-compliance upon his part with thoso measures of safety which, under ordinary circumstances, a neglect to comply with, would justly prevent him from holding others responsible for resulting injuries. As it is said in Palmer v. The N. Y. C. &. H. R. R. Co. (112 N. Y. 234-241): “It is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous ; that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it, that the way was safe.”

Still, the fact that such gate was ojien does not relieve the traveler from taking proper precautions for his own safety. It is still his duty to be on the lookout for danger and to exercise the same care that a man of ordinai’y prudence would have exercised under the same conditions. (Oldenburg v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 414-418.) .

The traveler is still bound to exercise ordinary and reasonable care, but the measure of his duty varies with the particular circumstances of the case, and its fulfillment must be determined by the jury. (Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 245.)

The assurance of safety given by open gates may also be modified or increased by circumstances, as when they are opened in the view and presence of the approaching traveler.

In this case it ajijiears that the gates were partly or wholly disabled, although they were both opened and closed on the day of and after the accident. It also apjiears that the plaintiff was entirely familiar with the crossing; that for a long period of time he had been in the habit of passing over it. There is no evidence in the case whether he knew or did not know that the gates were out of rejiair. It may possibly be inferred from his testimony that he placed some reliance upon the fact that the gates were open, because he testifies that in approaching the defendant’s road, when he arrived at the top of the hill, if he saw the gates were open, he drove on, and upon the day in question, when he was at the top of the hill, he .saw that the gates were open, and he also testifies that in the month of January or February, he is not certain which, upon one occasion lie saw the gates closed. Under all the circumstances, it seems to me that, upon both branches of the case, the' questions raised are peculiarly ones, for a jury to pass upon.

Upon the evidence presented to them, while not entirely satisfactory, I think I would not be warranted in saying that, as matter of law, the plaintiff did not take all the precautions necessary to free himself from the charge of contributory negligence, or to say, as matter of law, upon the evidence, that the defendant was free from negligence. The charge as a whole presented the case fairly for the consideration of the jury.

The judgment should be affirmed, with costs.

Putnam, J.:

The case is a doubtful one. It is not clear that the evidence was sufficient to sustain a verdict establishing negligence on the part of defendant, or freedom from negligence on the part of plaintiff. It is, however, for the interests of the parties that the questions involved should be authoritatively settled by the Court of Appeals, and I, therefore, though doubtingly, concur.

Mayham, P. J., concurred in result.

Judgment affirmed, with costs.


author: Herrick, J.: Tappan, J.:

text:
    Luther L. Dean and Others, Appellants, v. William J. Benn and Another, Respondents.

      Action to enjoin a nuisance and to recocer damages — an equity action, entitled to be tried as such — acquiescence by a riparian owner in the building of a dam below him — equitable estoppel by silence and acquiescence and settlement of boundary line.

    The complaint, in an action brought by riparian owners, on whose premises was a mill operated by a water wheel, alleged that the defendants, who maintained a dam and operated a mill on the same stream next below the plaintiffs, by their dam wrongfully raised the water of the stream and set it back upon the plaintiffs’ wheel, impairing its efficiency, and stated that such flooding existed when the action was commenced and had existed for some time before ; the complaint prayed that the plaintiffs might recover the damages already sustained, and that the defendants be perpetually enjoined and restrained from continuing the unlawful flooding.

      Held, that the action was an equity action, governed as to the trial of the issues therein by the law applicable to equity cases; that the defendants had no absolute right to the trial of such issues by a jury; and that in regard to questions submitted by it to the jury, the trial court had power to reverse, disregard or modify the findings of the jury.
    The evidence showed fluff the dam maintained by the defendants had been built by their grantor, of such a height that it would injuriously flood the plaintiffs’ land, to the plaintiffs’knowledge, but that the plaintiffs made no objection thereto at the time, but kept silence, and without putting the builder of the ■dam in equal knowledge of the fact, permitted him to incur large expense in creating the defendants’ water power and building the structure connected therewith; and that in the following year, the plaintiffs exchanged deeds with the builder of the dam, settling the boundary line between them upon the stream, without making any claim that the dam set back water upon their premises.

      Held, that the acquiescence of the plaintiffs in the erection of the dam to such a height as to cause the damages complained of, together with their silence at the time of the exchange of deeds, prevented a recovery by them.
    .Appeal by the plaintiffs, Luther L. Dean and others, from a judgment of the Supreme Court, entered in the office of the clerk of Montgomery county on the 5th day of February, 1892, upon a decision of the court rendered after a trial at the Montgomery Circuit, dismissing the plaintiffs’ complaint.
    . The 18th finding of fact made by the trial judge, referred to in the following opinion, was as follows:
    “In 1888, said Austin (the defendants’, grantor) and the plaintiffs settled a long-standing dispute about the boundary line between the said premises of the plaintiffs and the said premises of the defendants ; they divided the disputed territory, Austin conveying to plaintiffs the upper portion, and they conveying to him the lower «portion and paid him $500; the plaintiffs at that time made no claim to Austin that his dam set back water on their premises. Austin conveyed the lands in question believing that plaintiffs had no such claim; such claim was then, in no manner, referred to.”

      W. L. Vcm Denbergh and Matthew Hale, for the appellants.

      Ed/ward P. White, for the respondents.
   Herrick, J.:

It seems to me that plaintiffs acquiesced in the erection of the dam to such a height as to cause the damage, and that such acquiescence, together with their silence at the time of the exchange of the deeds mentioned in the 18th finding of fact, page 114 of the case, should prevent a recovery by them. I see no occasion for another opinion; it was sufficiently discussed by Judge Tappan. (See, also, §§ 816-818 of Pomeroy’s Eq. Juris.)

The judgment must be affirmed.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.

The following is the opinion of the trial court:

Tappan, J.:

Plaintiffs are the owners and in possession of the premises on Chuctanunda creek, in the town of Amsterdam, N. Y., on which are situated the Park Knitting Mills. Such mills are propelled by water, drawn from the pond above them.

The defendants are the owners of lands upon said creek, next below the lands and mills of plaintiffs, the defendants’ mills being propelled by water drawn from a pond created by a dam extending across said creek.

The complaint claims that the defendants wrongfully, by said dam, raised the water in said creek, and flowed the same back from their said lands, and to the wheel pit of the wheel, propelled by the water of the plaintiffs’ pond, by which their machinery is driven, thereby impeding such wheel and injuring'its power and efficiency, and that they have been occasioned damage thereby; that such flooding existed when the action was commenced, and had existed for some time before.

The complaint prays that the plaintiffs recover for the damages already sustained by them, and prays that the defendants be perpetually enjoined and restrained against the continuance of such unlawful flooding of plaintiffs’ said mill.

The answer makes an issue as to all the material facts necessary to constitute plaintiffs’ cause of action.

The cause came on for trial at the Montgomery Circuit Court, held in September, 1890, before the court, with a jury.

No issues had been framed and stated for trial by a jury, as provided by section 970 of the Code of Civil Procedure, and when the cause came on to be tried, the defendants’ counsel insisted that under section 968 of said Code, the defendants were entitled to have the action tried by a jury; plaintiffs’ counsel insisted that the case was an equity case to be tried by the court, without a jury, or by the court with a jury, to which jury, the court might, in its discretion, submit questions of fact arising upon the issues to be tried by the jury, as provided by section 971 of said Code.

After the evidence had been taken, and certain questions had been submitted to the jury for trial, under said last-mentioned section, and the jury had been charged by the court, the counsel for the defendants requested the court to instnict the jury that they might render a general verdict if they found for the defendants in this case, and if the jury so found, the questions submitted to them need not be answered.

The court refused to so instruct the jury, and the defendants excepted.

This brings up the preliminary question as to whether there has been a mistrial of the action.

Section 968, subdivision 2 of the Code, provides that unless a jury trial is waived, an issue of fact in an action for a nuisance must be tried by a jury. And different authorities have held that in an action to reco ver damages occasioned by a nuisance, and to abate the nuisance, and to restrain and enjoin against its continuance, that a jury trial is a matter of right. The following are some of the cases to that effect: Hudson v. Caryl (44 N. Y. 553); Colman v. Dixon (50 id. 572); Dorr v. Dansville G. L. Co. (18 Hun, 274); Libmann v. M. E. Ry. Co. (13 N. Y. Supp. 378); Cornell v. N. Y. E. Ry. Co. (Id. 511).

If no objection is taken at the trial by either party, the right is waived. (Barlow v. Scott, 24 N. Y. 40).

And by bringing such an action, the plaintiff waives the right to trial by jury, and the case may be tried by the court against his objection, with the aid of a jury, as the court in its discretion may determine, according to the practice in equity cases. (Davison v. Associates of the Jersey Co., 71 N. Y. 333; N. Y. & N. H. R. R. Co. v. Schuyler, 34 id. 30-46 ; Ward v. Plato, 23 Hun, 402; Baird v. Mayor, 74 N. Y. 382; Cogswell v. N. Y., N. H. & H. R. R. Co., 105 id. 319-321.)

And in such cases, it has been held that it is the proper practice to submit the issues at law to a jury, and then to dispose of the remaining issues without the • intervention of a jury. (Davis v. Morris, 36 N. Y. 572; Brady v. Cochran, 23 Hun, 274; Cornell v. N. Y. E. Ry. Co., 13 N. Y. Supp. 511; Hooker v. City of Rochester, 35 N. Y. St. Repr. 408; S. C., affirmed on appeal, 36 id. 458 ; People v. M. T. & T. Co., 11 Abb. N. C. 304.)

And that for irregularity in such procedure in not making proper findings appropriate for the equity relief, the remedy is by motion to correct the proceedings, and not by appeal from a judgment. (Hammond v. Morgan, 101 N. Y. 179 ; Acker v. Leland, 109 id. 5.)

In Parker v. Barney (1 T. & C. 590), this court, at General Term, reversed the judgment based on a general judgment for damages where the court, upon the same evidence, had made findings to support, and had granted an injunction.

In the same case on appeal (58 N. Y. 469), the Court of Appeals reversed the General Term on the ground that the finding of a general verdict for damages established the commission of the acts charged, and that such acts occasioned the injury complained of, and authorized a judgment restraining such acts.

The Supreme Court maintained that there was no right of trial by jury in the case ; the Court of Appeals did not refer to or determine the point. But the Court of Appeals decided this question in the case of Cogswell v. N. Y., N. H. & H. R. R. Co. (105 N. Y. 319-321). In that case the complaint demanded both legal and equitable relief; it prayed judgment for damages for an abatement of the nuisance complained of, and also for an injunction enjoining defendant against continuing the nuisance, and from permitting its lands to be used for the purpose of carrying on any operation thereon, which would injure the plaintiff in the enjoyment of her property.

The plaintiff had moved, in the Special Term, for an order settling issues to be tried by a jury, and the court had denied the motion, and stated in the order, on the ground that a trial by jury is a matter ctf right in this action.”

The court held that the plaintiff, by bringing an action for both legal and equitable relief, waived the right to trial by jury, and submits to have the issues tried by the court, or by the court with the aid of a jury, as the court, in its discretion, may determine, according to the practice in equity cases.

But in that case it was the defendant who objected to having the issues tried by the court, and insisted that he had a right to have them tried by a jury ; and the determination was that the defendant, in such an action, so brought, has no right, under the section of the Code referred to, and the Constitution of the State, to have the issues in such a case tried by a jury.

At page 321, the court says : “ This is not a case, which as a whole, and in both aspects, was triable by a jury at the adoption of the Constitution, nor is it one where, under the present system, the plaintiff is compelled to unite her claims for both equitable and legal relief in the same action. * * * This is not, we think, an ■action for a nuisance within section 968 of the Code of Civil Procedure. The action of nuisance is mentioned in the section, together with other common-law actions, all of which must, the section declares, be tried by a jury, unless a jury is waived or a reference is directed. Reading the section in connection with section 1660, it is clear, we think, that an equitable action to restrain the continuance of a nuisance is not an action for nuisance within section 968.”

This determines that this action is an equity action, governed as to the trial of the issues therein by the law applicable to equity cases; and that the defendant had no absolute right to the trial of such issues by a jury.

This being an equity case, the court has power to reverse, disregard or modify the findings of the jury. (Vermilyea v. Palmer, 52 N. Y. 471-474; Learned v. Tillottson, 97 id. 1; Hammond v. Morgan, 101 id. 179; Acker v. Leland, 109 id. 5.)

On the trial questions were submitted to the jury and answered ns follows:

First. Did the dam built on defendant’s premises in 1871 raise the water above such dam to a higher level than the dam on said premises next before said dam of 1871 was constructed ? If higher, how much higher ? Answer. Yes, two feet.

Second. Did said dam of 1871 raise the water on plaintiffs’land ? If so, to what depth did it raise the water at the line between the lands of the plaintiffs and defendants ? Answer. No.

Third. Did the dam built on the defendants’ premises in 1881 raise the water above such dam to a higher level than the dam built on said premises in 1871 ? If higher, how much higher ? Answer. Yes, one foot.

Fourth. Did said dam of 1881 raise the water on plaintiffs’ land? If so, to what depth did it raise the water at the line between the lands of the plaintiffs and defendants? Answer. Yes, one foot.

Fifth. Did the dam built on defendant’s premises in 1887 raise the water above such dam to a higher level than the dam built on said premises in 1881 ? If higher, how much higher ? Answer. No.

Sixth. Did said dam of 1887 raise the water on plaintiffs’ land ?' If so, to what depth did it raise the water at the line between plaintiffs’ and defendants’ land ? Answer. No.

Seventh. Does the dam of the defendants, as maintained by them at the time of the commencement of this action, September 10,1889, and since that time, cause the water to flow back above the boundary line between the plaintiffs’ and defendants’ land ? If so, what is the depth of the water at said line, which it so causes to flow back ? A. Yes, one foot.

Eighth. Did plaintiffs sustain damage by loss of the efficiency of their mill between February 21, 1889, and September 10, 1889, by reason of the water being raised by defendants’ dam upon the water wheel in the plaintiffs’ mill to a higher level than the water was raised at the site of said wheel before the building of said dam of 1871 ? If plaintiffs sustained damage from such cause, what is the amount of such damage during such period ? Answer. Damage, $161.

What is the amount of such damage for the period from September 10, 1889, to September 27, 1890? "We estimate damage $300.

Plaintiffs asked that such findings may be confirmed and adopted by the court as its findings, except the fifth, which finds that the dam of 1887 did not raise the water to a higher level than the dam of 1881; and the sixth finding, that the dam of 1887 does not raise the water on plaintiffs’ land; and plaintiffs insist that the seventh finding, that the dam maintained at the time of the commencement of the action raises the water one foot on the boundary line, should be modified by a finding that such dam at that point raises the water two feet. Defendants insist that the second, fifth and sixth findings are correct, and all the others should be set aside.

It is evident that the sixth finding should have been answered by the jury, “ yes, one foot,” to have been consistent with the other findings.

In the view that I have taken, it will not be necessary to examine the charge to the jury upon the questions submitted to it.

Upon examining the evidence on' the question as to whether the level of the water has been raised by the dam built on the defendants’ lands, I see nothing inconsistent with the idea that the dam built in 1871 was two feet higher than the old Deal dam, and that the main structure of the dam of 1871 was built with the intention of utilizing all the water power there was on the defendants’ lot. That that dam, by the use of two or three flush boards in low water, was made to set the water back on the plaintiffs’ land from twelve to eighteen inches; that when the dam of 1881 was built, the main structure raised the water a foot or more higher than the main structure of the dam of 1871, and that by the use of three sticks of timber on the last-named dam from about 1884, until near the time when that dam went out in 1887, the water was raised some two feet higher than the main structure of the dam would have raised it. That the main structure of the dam of 1887 was of the same height as the main structure of the dam of 1881, and two feet lower than the latter dam was when the three eight-inch sticks of timber were on it.

I have no doubt that by these dams the water was raised at least one foot, and probably nearly two feet by the dam of 1887, which was standing at the time this action was commenced.

Washburn’s Easements and Servitudes (Chap. 3, § 13), states that it seems to be well settled that a mill-owner has a right by means of his dam to swell or set back the water of the stream in its natural state, to the line of the adjoining riparian proprietor, and to maintain his dam at that height, although at times of freshet, the water of his pond shall set back upon the land of such proprietor, and Gibson, Chief Justice, says, in McCalmont v. Whitaker (3 Rawle, 84-90), “ the water power to which a riparian owner is entitled, consists in the fall in the stream when in its natural state, as it passes through his land, or along the boundary of it, or, in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it.”

This definition is adopted in terms by the Supreme Court of Illinois, in Plumbleigh v. Dawson (1 Gilm. 544).

The counsel for both parties made no contention but that this is the correct rule governing the case at bar, and having this in mind, I have made the finding that the water was raised at the boundary line at least one foot.

I am satisfied after careful examination that the evidence given by the plaintiffs upon the trial was not sufficient to entitle them to recover any damages within the rules of law governing such cases. The true measure of damages in such a case is the difference in the rental value, free from the nuisance or subject to it. (Francis v. Schoellkopf, 53 N. Y. 152; Colrick v. Swinburne, 105 id. 503, and cases there cited; Michel v. Supervisors, 39 Hun, 47; Van Buren v. Fishkill Water Works, 50 id. 448 ; Murray v. Archer, 5 N. Y. Supp. 326.)

Assuming that the evidence of plaintiff given on the question of damages was competent, it was insufficient to form any reasonable, just basis of computing the damages.

The difficulty in furnishing sufficient evidence to estimate such damages shows that the plaintiffs are entitled to equitable relief, if they have a right of action against the defendant.

Early in 1886, Chas. D. Austin purchased the premises, which were, on February 22, 1889, conveyed by him to the defendants. For such premises, rights and privileges, he paid $20,000. Thereafter he enlarged the buildings, put in anew water trunk and wheel, placed expensive machinery in the mill, and began the erection of a new mill on the opposite side of the creek, to be furnished with water power from the dam of 1887, which he built with a bulkhead on each side. Plaintiffs were in possession of their property when the dam of 1881 was built. At that time, the plaintiff Dean was informed by the Hewitts, who built that dam, that it was being wrongfully raised ; this dam was allowed to be completed, and to remain for six years without objection. In the meantime, Austin, a bona fide purchaser for value, came into possession of the defendants’ premises under his deed, which granted the right to retain the water of the creek upon the lands conveyed, “ or any other lands, as the same is used, owned or enjoyed by the said first party.” lie enjoyed this right undisputed and unquestioned for a year or more before the dam of 1881 was carried away. Then he began building a new dam of the same height of the old one, and plaintiff Dean was so informed at the time and made no objection.

Plaintiffs passed the dam of 1887 while it was being built. The plaintiff Dean inspected it; talked with the workmen about its height when they had reached the top on one side ; was told that it was being built the same height as the dam of 1881, and remarked that it was a good, substantial dam, and that he was glad they were building such a good dam:

The plaintiffs, having utilized their water power before 1881, knew to what height that dam, with the timber structure upon it, had flowed the water back upon them. This appears clearly from the evidence of the plaintiff Dean himself, who says that as early, at least, as the building of the dam of 1881, he believed that the water had been raised by the dam below upon the plaintiffs’ land. If the plaintiffs were ever to contend that the water had been raised upon their land as against Austin, or the defendants, who derived their title from him, they should have made claim upon the first opportunity, and at least before Austin was allowed to expend money in the building of the dam of 1887, or the structures to be supplied with water power from such dam.

In equity, when a man has been silent, when in conscience he ought to have spoken, he will be debarred from speaking when conscience requires him to be silent. (Niven v. Belknap, 2 Johns. 573, 589.)

As was said in that case, “ there is a negative fraud in imposing a false apprehension on another by silence, where silence is treacherously expressive.”

Austin had the right to act upon the presumption that the plaintiffs would not suffer an injury to their rights by his grantors, without resistance, and that if the building of the dam of 1887 .would be an encroachment upon plaintiffs’ rights, that they would have knowledge of it, and make objection; that as they did not make any objection, and acquiesced in the building of the dam, and the expenditures on the structures to be used in connection with the water power that there was no encroachment.

Defendants succeed to Austin’s rights. If there is an estoppel in his favor, it applies equally to them. (Wood v. Seely, 32 N. Y. 105, 116; Willard’s Eq. Juris. 250, 609; Alexander v. Pendleton, 8 Cranch, 462; Bigelow on Estoppel, 341, 607, 608, and cases cited.)

The principle of estoppel by silence has been applied repeatedly in this State, and by the courts of the United States. (Niven v. Belknap, 2 Johns. 573, 589; L'Amoureux v. Vandenburgh, 7 Paige, 316; Erie County Sav. Bank v. Roop, 48 N. Y. 292, 298; McClare v. Lockard, 121 id. 308; Leather Mfgs. Bank v. Morgan, 117 U. S. 96, 106, 112.)

It is not necessary to an equitable estoppel that the party should intend willfully to mislead, but whatever may be the intent, if he makes such a representation as a sensible man would take to be true, and believe that it was meant that lie should act upon it and does so act, the party making the representation is precluded from contesting the truth. (Continental Nat. Bank v. N. Bank of the Commonwealth, 50 N. Y. 575, 580, 582; Blair v. Wait, 69 id. 113, 116.)

The case at bar comes within the principle that if one man knowingly permits another to purchase and expend money on land upon an erroneous opinion of title, without making known his claim, he will thereafter be estopped from asserting it. (Wendell v. Van Rensselaer, 1 Johns. Ch. 354; Town v. Needham, 3 Paige, 545; Storrs v. Barker, 6 Johns. Ch. 166; Brown v. Bowen, 30 N. Y. 519, 541.)

The dam of 1887 was built upon defendants’ land, but of such height that it would raise water upon plaintiffs’ land to their injury, and, as they must have well known, they suffered it to be constructed without putting Austin in eqnal knowledge of the fact when he was incurring large expense in creating the water power and building the structures connected therewith. Such acquiescence was consistent only with relinquishing any claim that the dam was too high. The silence of plaintiffs under these circumstances when it was their duty to speak, if their rights were being invaded, is equivalent to a representation to Austin that they had no interests which were being adversely affected by his conduct, and estops them from taking any position inconsistent with such silence and apparent acquiescence. (Bigelow on Estoppel [5th ed.], 583, 584.)

The pond which produces the power is the material thing, without which the dam and mills and machinery are worthless ; if the plaintiffs are new allowed to assert title against the right upon which the defendants’ grantor relied when he built the dam of 1.887, the damage will be as direct as if a mill instead of a pond had been placed across the line. They should, therefore, be estopped in the same manner.

A dispute as to the boundary line west ■ of the creek had come down from the time of Maxwell and Brown. Starting from the boll in the rock on the west bank of the creek, Maxwell claimed that the line ran through the Brown mill, cutting off the tall chimney and all that part of the mill. Brown claimed that the line bore farther south, entirely clearing his buildings. Maxwell claimed that it was the same line that ran across the creek, but the plaintiff Dean on the tidal seemed unwilling to admit this. He testified, however, that Mr. Yischer surveyed their premises at one time, and found all the lines but this line in dispute.”

The plaintiff Lyon had a conversation with Austin about this controversy, in which Austin said he -would sell the jdaintiff sixty feet along the road, they to give him a quit claim deed of the portion between said sixty feet and the highway leading to the bridge, and that should settle the transaction forever between them. After consultation with the other plaintiffs, this agreement was closed, and in March, 1888, about a year before the commencement of this action, deeds were passed accordingly, Austin receiving $500 for the land conveyed by him to the plaintiffs.

The disputed territory extended from the bolt in the rock near the plaintiffs’ tail race down to the highway fronting plaintiffs’ premises. A division line was run about midway across .this tract; the upper portion was conveyed to plaintiffs and the lower portion to Austin; the former was bounded on the south by the northerly boundary of the Chuctanunda creek, and the deed given recited that there was to be no claim for damage by reason of the premises being overflowed by water from said creek in times of freshet. This plainly excluded the idea of back water at any other time.

The other deed bounded the lands by the lands conveyed to plaintiffs by Austin, southerly by said Austin’s mill pond or dam and the Chuctanunda creek, and westerly by the highway leading across the stone bridge, and past the knitting mill of said Charles D. Austin.” Tliis was an express recognition of Austin’s mill pond or dam as they then existed and as used in connection with his knitting mill. The latter deed expressly referred to the former, and they formed part of the same transaction. They must, therefore, be read together, and both must be construed with reference to the mill pond, dam and creek, as the water was then maintained therein. This transaction shows that-Austin, down to this time, must have acted in building his dam and making his expenditures in connection therewith, upon the faith engendered by the silence and acquiescence of the plaintiffs. With a claim to the land on which the plaintiffs’ mill was located of such" apparent validity that the plaintiffs were willing to pay him $500 to relinquish it, he would not have been likely to have given this deed if he had had knowledge that the plaintiffs made any claim that the dam was too high without having such claim adjusted and settled in the same arrangement which determined the boundary controversy. The premises must be taken as they were at the time of the conveyance. (Lampman v. Milks, 21 N. Y. 505-509; Hamel v. Griffith, 49 How. 305.)

By these circumstances the plaintiffs are estopped from asserting that the dam of 1887 is higher than it could have been lawfully built, or that it flows the water back onto the lands of the plaintiffs to the prejudice of the defendants, who succeed to the rights of Austin, to a greater extent than might be lawfully done.

Plaintiffs’ complaint should be dismissed upon the merits, and costs should be awarded against them in favor of said defendants.

Judgment is ordered accordingly.