text:
    William C. Herrick, appellant, v. Germania Fire Insurance Co., respondent.
    Decided January 7, 1884.
    Appeal from a judgment entered May 19, 1883, in favor of the defendant, dismissing the plaintiff’s complaint with costs.
    Edward M. Shepard, for appellant;
    O. E. Bright, for respondent.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., concurred. Judgment affirmed with costs.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Edward Hall, appellant, v. James G. Bennett, as executor, &c., respondent.
    Decided February 4, 1884.
    Appeal from an order made April 16, 1883, denying plaintiff’s motion to direct the clerk to tax plaintiff’s costs and disbursements in this action.
    L. Laflin Kellogg, for appellant;
    John Townshend, for respondent.
   Freedman, J.

As the judgment in this action has been reversed on defendant’s appeal and a new .trial ordered, the appeal of plaintiff from the order of April 16, 1883, should be dismissed without costs to either party. O’Gorman, J., concurred.


text:
    People ex rel. Frank Forrester, relator, v. Allan Campbell, Comptroller of the city of N. Y., respondent.
    Decided February 4, 1884.
    Hearing upon a wit of certiorari, the papers on which it. was granted, and the return thereto.
    John D. Townsend, for relator;
    George P. Andrews, counsel to the corporation, and D. J. Dean, for respondent.
   Freedman, J.

The facts of this case and the questions arising thereon and presented thereby for review, are identical with those of the case of The People ex rel. William C. Emmet v. Allan Campbell, comptroller, &c., decided at this term, with the sole exception that, instead of having been disbursing clerk, the relator was the assistant disbursing clerk in the auditing bureau of the Department of Finance. As such, it is conceded, he was a regular clerk within the meaning of section 28 of chapter 335 of Laws 1873. For the reasons stated in Emmet’s case, a final order should be entered, as provided by section 2141 of the Code of Civ. Pro., confirming the determination reviewed, with costs to the respondent fixed at the sum of $25 and disbursements. Sedgwick, Ch. J., concurred.


author: O’ Gorman, J.

text:
    Elizabeth A. L. Hyatt, respondent, v. Dale Manufacturing Co., appellant.
    Decided February 4, 1884.
    Appeal from order of special term, denying motion on the part of the defendants,, made on December 21, 1883, for leave to renew a motion to send this case back to a referee, and that said referee be required. to correct his minutes, so that the same shall show the fact of the surrender of a license by the defendants during the trial and whether or no such license was surrendered.
    Geo. W. Van Slyck, for respondent ;
    E. D. McCarthy, for appellant.
   O’ Gorman, J.

It was a matter in the discretion of the judge below, to hear a motion which had already been heard and denied by another judge at special term. It was within his discretion to grant or to deny it; and from the exercise of that discretion, u'nless it be manifestly abused, an appeal to this court will not be sustained. Sedgwick, Ch. J., concurred. Order affirmed, with $10 costs.


author: Per Curiam.

text:
    James M. Tuttle, appellant, v. Richard P. Rothwell, respondent.
    Decided February 4, 1884.
    Appeal by plaintiff from order striking from the complaint irrelevant and redundant allegations. Motion by respondent to dismiss the appeal.
    Edward M. Shepard, for appellant;
    Abram Kling, for respondent.
    Before Sedgwick, Ch. J., and O’ Gorman, J.
   Per Curiam.

Order appealed from affirmed, with $10 costs, and disbursements to be faxed. The court does not pass upon the merits of the motion to dismiss, but having affirmed the order, denies the motion, formally, without costs.


text:
    Joseph H. Keller, et al., respondents, v. Edwin J. Denning, Jr., appellant.
    Decided February 4, 1884.
    Appeal from order directing defendant to accept service of complaint,
    Martin & Smith, for appellant;
    Sullivan & Cromwell, for respondent.
    Before Sedgwick, Ch. J., Truax and O’ Gorman, J J.
   Opinion Per Curiam. Order affirmed, with costs.


text:
    Clara L. Totten, appellant, v. Cassius H. Read, respondent.
    Decided February 4, 1884.
    Appeal from an order directing the plaintiff to serve a bill of particulars.
    I. T. Williams, for appellant;
    Christopher Fine, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   Memorandum Per Curiam. Order modified, and as modified affirmed, without costs to either party.


text:
    James Goodfellow, appellant, v. The Mayor, &c. of the City of New York, respondent.
    Decided February 4, 1884.
    Appeal from a judgment, dismissing the complaint with costs.
    B. F. Mudgett. for appellant;
    D. J. Dean, for respondent.
    Before Truax and O’Gorman, JJ.
   Per Curiam.

The evidence failed to show any negligence in the defendant and therefore the complaint was rightly dismissed. The judgment is affirmed, with costs.


text:
    The Second Bank of Paterson, New Jersey, appellant, v. Alfred S. Dix, et al., respondents.
    Decided February 4, 1884.
    Appeal by plaintiff from judgment in favor of respondents Dix and Phyfe, entered on direction of judge at trial term, that the complaint be dismissed against them, and in favor of respondent Brown, on the verdict of the jury. Preston Stevertson, for appellant;
    Thomas J. Moore, for respondents Dix and Phyfe ;
    John Yard and Almon Goodwin, for respondent Brown.
    Before Sedgwick, Ch. J., Truax and - O’Gorman, JJ.
   Per Curiam.

Judgments affirmed, with costs for respondents severally.


text:
    The Wilber National Bank of Oneonta, New York, respondent, v. John F. Betz, Impleaded, &c., appellant.
    Decided February 4, 1884.
    Appeal by defendant from an order denying bis motion to set aside order for publication of summons.
    Samuel Untermyer, for appellant;
    Estes & Barnard, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

Order affirmed, with $10 costs and disbursements to be taxed.


text:
    Nelson C. Reid, et al., v. The Equitable Life Insurance Society, &c.
    Decided March 3, 1884.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

The order appealed from should be affirmed, with costs.


text:
    William H. Rutty, appellant, v. Augustin E. Person, et al., respondents.
    Decided March 3, 1884.
    Appeal from an order denying a motion made by plaintiff for leave to inspect and to take copies of the defendant’s books.
    Eugene H. Pomeroy and Jno. E. Eustis, for appellant;
    S. P. Nash and Ludlow Fowler, for respondents.
    Before Sedgwick, Ch. J., and Truax, J.
   Per Curiam.

The parties hereto have entered into a stipulation in which the defendants stipulate, among other things, to produce their books before the referee, and the plaintiff siipulates not to enforce any order requiring the defendants to produce their books. This stipulation renders an order for the production and inspection of the books unnecessary, at least until it is shown that the defendants have refused to comply with l;he terms of their stipulation. When they shall be produced before the referee, they will be under his control, and he may then make such order concerning them a.s he deems just. Order affirmed, with $10 costs and disbursements to be taxed


text:
    James N. Donvan, respondent, v. William B. Welsh appellant.
    Decided March 4, 1884.
    Appeal by defendant from judgment entered upon verdict of jury in favor of plaintiff, and from order denying motion for new trial made upon the judge’s minutes.
    William H. Gibson, for appellant;
    Payson Merrill, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

Judgment affirmed, with costs. Order appealed from affirmed, with $10 costs and disbursements to be taxed.


text:
    Peter Townsend, respondent, v. Cassius H. Read, et al., appellants.
    Decided March 24, 1884.
    Appeal by the defendants from a judgment entered against them upon the report of a referee.
    Christopher Fine, for appellants;
    I. T. Williams, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred. Judgment affirmed, with costs.


text:
    J. M. Boorman, appellant, v. Simeon Baldwin, et al., respondents.
    Decided March 24, 1884.
    Appeal from judgment dismissing complaint, and from an order denying plaintiff’s motion for a new trial.
   Opinion by Freedman, J. ; O’Gorman, J., concurs. Judgment and order denying plaintiff’s motion for a new trial severally affirmed with costs.


text:
    The Northampton National Bank, respondent, v. Lucien H. Niles, appellant.
    Decided March 26, 1884.
    Dixon, Goodwin & Williams, for appellant;
    Peckham & Tyler, for respondent.
   Freedman, J.

This is an appeal from an order denying defendant’s motion for a resettlement of the case heretofore settled and filed after argument and decision at general term, and after the perfection of an appeal to the court of appeals. The order should be affirmed with costs for the reasons assigned by the learned chief judge at special term. O’Gorman, J., concurred.


text:
    Fannie Wylie, as adm’x., appellant v. Samuel L. M. Barlow, et al., respondents.
    Decided March 26, 1884.
    Appeal by plaintiff from an order discontinuing this action made upon motion of defendants, on the ground that the cause of action had been compromised and settled by the plaintiff, and that she had agreed to discontinue the action.
    Joseph R. Flanders, for appellant;
    S. Hanford, for respondents.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

The attorneyfor plaintiff has not appealed from the order but the plaintiff only.1' The order should be affirmed for the reasons given in the opinion of Judge Ingraham below, without costs.


text:
    Jeffrey McColl, appellant, v. Josiah J. Frith, et al., respondents.
    Decided April 7, 1884.
    Appeal from a judgment entered December 7, 1882, on the decision of the trial judge at the special term, before whom the action was tried, without a jury.
    G. S. P. Stillman, for appellant;
    Stickney & Shepard, for respondents.
   Opinion by O’Gorman, J. ; Sedgwick, Ch. J., and Freedman, J., concur.' Judgment affirmed, with costs.


text:
    Samuel D. Mott v. Jacob P. Billups, et al.

    Decided April 7, 1884.
    Submission on statement of facts agreed upon.
    John H. Kitchen, for plaintiff;
    R. L. Harrison, for defendants.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., and Truax, J., concur. Judgment for defendants against plaintiff for the sum of $1,773.13, being the balance due them on the whole transaction, and interest from December 18, 1882.


text:
    Gustavus H. Leonhardt, appellant, v. Henry Durlach, by guardian, etc., respondent.
    Decided April 7, 1884.
    Appeal from judgment of special term, in favor of defendant dismissing plaintiff’s complaint, without costs.
    Birdseye, Cloyd & Bayliss, for appellant;
    Ben-no Loewy, for respondent.
   Memorandum by O’Gorman, J.; Sedgwick, Ch. J., concurred. Judgment affirmed with costs.


author: O’Gorman, J.

text:
    Leo Swatts, respondent, v. The Long Island Railroad Co., appellant.
    Decided April 7, 1884.
    Appeal from verdict in favor of plaintiff for the sum of $1,500 ; and from order denying motion for a new trial on account of excessive damages.
    Hinsdale & Sprague, for appellants ;
    Peter Mitchell, for respondent.
   O’Gorman, J.

The judgment appealed from is affirmed, with costs ; and the order appealed from is affirmed, with $10 costs. Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    Henry Newman, respondent, v. Emil Greef, et al. appellants.
    Decided April 7, 1884.
    Appeal by defendant from judgment, entered upon a verdict of jury for plaintiff, and from order denying defendants’ motion for a new trial made upon the judge’s minutes.
    W. Z. Larned, for appellant;
    Stern & Myers, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Opinion Per Curiam. Judgment affirmed with costs, and order appealed from affirmed with $10 costs and disbursements to be taxed. Truax, J., dissented.


text:
    Mansfield Compton, appellant, Henrietta Hollinghead, et al., respondents.
    Decided April 7, 1884.
    Appeal by plaintiff from orders denying his motion to set aside certain order and a judgment and for a new trial.
    Mansfield Compton, in pro. per., appellant;
    James W. Monk, for respondents.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.
   Opinion Per Curiam. The court writing in conclusion : “ This case is left in such a state, that neither side can effectively proceed to the merits. The best course will be to set all proceedings, after service of demurrer, aside, and to order a new trial without costs to either side.”


text:
    Peter Swade, respondent, v. Andrew J. Constantine, appellant.
    Decided April 7, 1884.
    Appeal from order made at special term denying motion to compel plaintiff to change his complaint so as to specify two distinct causes of action.
   O’Gorman, J.

The order appealed from is affirmed, with $10 costs. Sedgwick, Ch. J., and Freedman, J,, concurred.


text:
    Emma Bayles, appellant, v. John T. Cornell, respondent.
    Decided April 7, 1884.
    Appeal by plaintiff, from judgment entered upon find - ing and conclusions by judge at special term.
    Thomas Darlington, for appellant;
    F. G. McDonald, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Per Curiam.

Judgment affirmed with costs.


text:
    James T. Cowdery, respondent, v. Samuel Keefer, et al., appellants.
    Decided April 7, 1884.
    Appeal by defendant from judgment entered on verdict of jury, for plaintiff and from order denying defendants’ motion for a new trial, made upon the judge’s minutes.
    Alfred C. Chapin, for appellants ;
    William J. Marrin, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Per Curiam.

Judgment affirmed with costs, and order appealed irom affirmed with $10 costs,


text:
    John F. Losee, who sues, etc., v. John D. Prince, et al.

    Decided April 7, 1884.
    Appeal from judgment.
    Before Sedgwick, Ch. J., and Truax, J.
   Per Curiam.

Judgment reversed to the costs order to be settled on notice.


text:
    Martin T. McMahon, as receiver, etc., respondent, v. Isaac S. Platt, appellant.
    Decided May 5, 1884.
    Appeal from judgment.
    William J. A. McGrath, for appellant;
    George P. Andrews, corporation counsel, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

This action is brought to recover from the defendant the sum of $637.50, with interest, from the 14th day of October, 1878, on account of an unpaid assessment for personal taxes for the year 1878. We are of the opinion that the action was brought by the proper party ; that the complaint states a cause of action, and that the cause of action stated in the complaint was proved on the trial. The judgment appealed from is affirmed with costs.


text:
    Henrt C. Braisted, respondent, v. Elizabeth C. Braisted, appellant.
    Decided June 16, 1884.
    Appeal by defendant from ordeT denying her motion to set aside a judgment of divorce granted against her.
    A. M. & G. Card, for appellant.
    William J. Underwood, for respondent.
   Opinion by Sedgwick, Ch. J.; Ingraham, J., concurred. Order affirmed with $10 costs and disbursements, to be taxed.


author: Sedgwick, Ch. J.

text:
    William H. Jackson, appellant, v. Frederick Elliott, et al., respondents.
    Decided June 16, 1884.
    Appeal by plaintiff from judgment dismissing complaint on the merits, entered upon findings of judge at special term.
    Stephen B. Brague, for appellant;
    G. A. Clement, for respondents.
   Sedgwick, Ch. J.

The testimony supports the findings of the judge below and his opinion states satisfactorily the nature of the case. Judgment affirmed with costs. Truax, J., concurred.


text:
    James D. Bird, respondent, v. Edward M. Knox, Impleaded, etc., appellant.
    Decided June 16, 1884.
    Appeal from an order denying a motion to have several causes of action separately stated, and to strike out portions of the complaint as irrelevant and redundant.
    John W. Weed, attorney, for appellant;
    Baldwin & Black mar, attorney, for respondents.
   Opinion by Truax, J.; Ingraham, J., concurred. Order affirmed, with costs.


text:
    Edward J. McGean, appellant, v. Thomas Mackellar, et al., respondents.
    Decided June 16, 1884.
    Appeal from judgment dismissing complaint on trial before the court at special term.
    John Brooks Leavitt, for appellant;
    George M. Mackellar, for respondents.
   Opinion by Ingraham, J. ; Sedgwick, Ch. J., and Truax, J., concurred. Judgment affirmed, with costs.


text:
    William F. Owens, et al., respondents, v. Thomas T. Buckley, appellant.
    Decided June 16, 1884.
    Appeal by defendant from order referring the issues in this action to a referee to hear and determine the same,
    W. P. Prentice, for appellant;
    John L. Hill, for respondent.
    Before Sedgwick, Ch. J., and Ingraham, J.
   Memorandum per Curiam.—Order affirmed, with $10 costs and disbursements.


text:
    Barker Place, as executor, &c., respondent, v. Jedediah K. Hayward, appellant.
    Decided June 16, 1884.
    Appeal from an order denying a motion that the costs herein be paid by the plaintiff individually.
    J. K. Hayward, for appellant;
    Charles F. Wells, for respondent.
    Before Truax and Ingraham, JJ.
   Memorandum per Curiam.—Order affirmed, with costs.


text:
    Robert F. Austin, et al., respondents, v. Joseph Byrnes, appellant.
    Decided June 16, 1884.
    Appeal from judgment entered on report of referee;
    Arnoux, Ritch & Woodford, for appellant;
    E. H. Benn, for respondents.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
   Per Curiam.

The judgment appealed from is affirmed, with costs.


text:
    Thomas A. Phelan, appellant, v. Daniel J. Cushing, respondent.
    Decided June 26, 1884.
    Appeal from judgment entered on the dismissal of plaintiff’s complaint.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
   Per Curiam.

The judgment appealed from should be affirmed with costs.


author: Per Curiam. Ingraham, J.

text:
    JOHN H. GLOVER, Respondent, v. THE MANHATTAN RAILWAY Co., and THE NEW YORK ELEVATED R. R. Co., Appellants.

      Easements in streets.—Abutting owner's right of access, light and air.— Right of owner subsequent to the erection of an obstruction to restrain its continuance and to damages.—Measure of damages and evidence as to.— Statute against granting lands held adversely.-—-Injunction.

    AVhen strips of land are dedicated, or conveyed in trust, as public streets,, an owner of land abutting thereon, if he does not own the fee of the bed of the strip, has an easement therein which gives him a right to have the street kept open, so that from it access may be had to his lot, and light and' air furnished across the open way. Above the surface there can be no, lawful obstruction to the access of light and air to his detriment. A fortiori, he has similar right if he is the owner of the fee of the bed, subject only to an easement in favor of the public of a right of way.
    Such rights constitute property which cannot he interfered with, without the consent of him entitled thereto, except by condemnatory proceedings upon due compensation made.
    An injunction will issue in favor of one to whom such rights have passed1 subsequent to the commission and completion of the acts constituting-such interference,—e. g., the building of a structure,—to restrain the-continuance of such interference, and to recover such damages as he-may have sustained from such interference subsequent to his becoming possessed of such rights.
    Evidence of experts as to the depreciation in the rental, of premises in, consequence of the interference is admissible ; and such depreciation will iii the absence of other evidence constitute the measure of damages. Direct evidence of the rental value of the easement of light, .air and right of access is not essential.

      Decided November 14, 1884.
    The statute against grant of lands in possession of a person claiming adversely to grantor (1 R. S. p. 739 and 147, part 2, chap. 1, title 2, art. 4) does not apply to such rights.
    In a case where the injunction against such interference would operate to put the public to great inconvenience,—e. g., the stopping the running of a railroad,—and the party to be enjoined can by agreement or condemnatory proceedings, obtain the right to maintain and continue such interference, a reasonable time within which to obtain such right will be given, before an injunction will be issued.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendants from a judgment entered upon the decision of a judge at a special term upon a trial before him without a jury.
    The facts sufficiently appear in the special term opinion.
    Deyo, Duer & Bauersdorf, attorneys ; Henry H. Anderson and R. E. Deyo,

    of counsel for appellants, argued :— I. The railroad tracks and stations, and the operation of the railroad upon the tracks are no nuisance, because authorized by law. It was at the utmost an infringement upon the rights of the owner at the time of the erection of the Structure of the lot abutting upon the street so far forth, and so far forth only as it encroached upon light, air and access to that lot (Patten v. N. Y. Elevated R. R. Co., 3 Abb. N. C. 106). It was an infringement on his right, which could be compensated for in damages. Damages could measure and atone for all the injury done him. The structure having been completed and the easement destroyed without interference by the then owner, he had a right of action against the railroad company. This was a personal right and would pass by assignment, but did not pass under the words of a conveyance. If the then owner had died, it would have passed to his personal representatives as a chose in action, and not to his heirs at law or to the devisees of the lot (Van Zandt v. Mayor, 8 Bosw. 375). The plaintiff has no claim against the defendants. His right to maintain this action and to an injunction therein rests upon pecuniary damages sustained by him. He has sustained none. When he bought the lot the burden imposed upon the street had depreciated the value of the lot, and the then owner of the lot held a claim for damages sustained by Mm to the full value of the depreciation then caused by the structures wMch had been erected. A smt was then pending for such damages, brought by a previous owner (Green v. N. Y. Central R. R. Co., 12 Abb. N. C. 124; Henderson v. N. Y. Central & H. R. R. R. Co., 78 N. Y. 435). This case is the case of Williams v. N. Y. Central R. R. Co. (16 Id. 97), continued by the plaintiff’s executors. See also Van Zandt v. Mayor (8 Bosw. 375); Green v. N. Y. Central, etc. (supra); Powers v. City of Council Bluffs (45 Iowa, 652); Whitlock v. Cook (15 Johns. 400). But one person or owner is entitled to damages for the part of the easement destroyed by the permanent structure, and that person is the one who was owner when the damage was done. All subsequent purchasers are entitled to whatever losses they may sustain by reason of dimimshed rental value for a contmmng nuisance, if such there be, arising, not from the structure itself, but from any unlawful addition thereto; or if a railroad, as m this case, from an unlawful manner of operatmg the road (Neal v. K. & I. R. R. Co., 61 Me. 298 ; Rand v. Townshend, 26 Vt. 670; Allyn v. P. W. & B. R. R., 4 R. I. 461; Turnpike Rd. v. Brosi, 22 Pa. 32; Tenbrooke v. Jahke, 77 Id. [1875] 397; Zimmerman v. Union Canal Co., 1 Watts & S. 346 ; Schuylkill Nav. Co. v. Thoburn, 7 Sergt. & Rawle, 421; Case v. N. Y. Central R. R., 24 Barb. 273; Schuylkill & Susq. Nav. Co. v. Decker, 2 Watts, 343 ; McLendon v. Atlantic & W. P. R. R., 54 Ga. 293; Pomeroy Exr. v. Chic. & Mil. R. R. [1870], 25 Wis. 643).
    n. The defendants do not claim here that they are not bound to compensate the owners of property taken,for such property. The question raised here is who is entitled to such compensation. Is he who was the owner when the injury was done, and who sustained the loss, to be paid, or is he who purchased the abutting lot after the easement had been destroyed, and after the loss had been sustained, the man who only paid the value of the lot without the easement, entitled to compensation for what he did not buy ?
    III. The plaintiff claims for damages the diminution of the rental value of the premises, from the time the plaintiff bought, up to the time of the trial. But there was no diminution in rental value during that time. The diminution all occurred before plaintiff’s purchase, and the rental value is proved by all the witnesses, even by the plaintiff himself, to have increased, and the rent actually received by the plaintiff to have been more, during the year preceding the trial, than it was when the plaintiff purchased. So that the claim of the plaintiff as stated falls to the ground. The case of Corning v. Troy Iron and Nail Factory (40 N. Y. 192), cited by plaintiff, is very different. In that case the defendants entered into possession and occupied premises ■under a lease for thirty-four years and upwards, and the court held that they were bound to restore the land with the water running in in its natural channel at the expiration of the lease, unless relieved from such obligation by some immediate act of the lessors or of those holding their title. It was while holding under this lease that the defendants interfered with the easement. During their lease they had the right to interfere, and the plaintiffs had no right, because the defendant’s acts worked no injury to the reversioner, and as the right of the reversioner existed during the continuance of the lease, it was not cut off by any of the defendants during the lease.
    IV. It is a principle recognized by adjudged cases, and resting upon sound reason and policy, that purchasers of property obviously and notoriously subjected to some right or easement, or burden or servitude, affecting its physical condition, take it subject to such right or burden without any express exceptions in the conveyance (Rawle on Covenants, 141, et seq. ; Stemborer v. Holmes, 16 Ind. 142; Kurtz v. McCune, 22 Wis. 628 ; Marston v. Hobbs, 2 Mass. 439). The principle here stated is applicable to the burden which had been imposed upon the street before the plaintiff purchased. Unlawfully imposed, it may be said, as to the plaintiff’s predecessors, but actually existing as an incumbrance or burden at the time the plaintiff purchased the lots and the injury which had been done by the permanent structure deducted from the price paid by the plaintiff for his property.
    V. The complaint should be dismissed, because the injury complained of was done to the property before it was acquired by the plaintiff; the original damage was sustained by the plaintiff’s predecessors and not by him ; because the plaintiff when he purchased the premises was fully apprised that the easement had been substantially, or to the extent of the occupation by the railroad structures, pro tanto, destroyed, and upon the plaintiff’s purchase of the premises he purchased them at a price reduced to correspond with the injury done. In fact he has sustained no injury—no personal pecuniary loss whatever—by the construction of the railroad and depot as constructed. The burden resting upon his lot was, as to him, paid for in the reduction of the price of the lot, and he has no ground of complaint against the defendant. No change has been made since his purchase in the road or station in front of plaintiff’s property. The bridge between the station and Church street is not in front of the plaintiff’s property, and the injury complained of as to that, is not as to light, air, or access to his property.
    VI. If the court should be of opinion that the complaint ought not to have been dismissed, then the rule laid down by Judge Freedman in the case of Greene against the New York Central Eailroad Company should be applied, under which only nominal damages can be recovered. Such award should have been confined to damages for improper management of the road, and not for original damages, of which the plaintiff has sustained none. No proofs have been given of any amount of damages for improper management of the road.
    VII. The court erred in admitting a series of questions, of which an example is furnished : “ Q. To what extent do' you consider that the rents have been depreciated by the presence of the railroad ?” Aside from the objection that this is a case of original damage, this question is addressed to the injury caused by the entire structure, and is not confined to the injury caused by preventing light, air and access, the only elements entering properly into the claim of an abutting owner. This evidence could not fail to have influenced the mind of the court in the decision rendered.
    VIII. The measure of damages allowed by the court was erroneous. It should have been circumscribed by the difference in value of the lot, with and without the amount of fight, air and access (if any) prevented by the plaintiff’s structure. But even that does not belong to plaintiff, for reasons given above (In re Munson, 29 Hun, 335 ; In re N. Y., W. S. & B. R. Co., 29 Ib. 646 ; In re Lacka. & West., 29 Ib. 1; Matter of Prospect Park, &c., 13 Ib. 345).

      Glover, Sweezey & Glover and Richard L. Siveezey,

    of counsel for respondent, argued :—I. The objection made by the defendants that the plaintiff’s deed is void as to the interest or estate of his grantors in Greenwich and in Sector streets, is not well founded, (a.) The defendants are not in adverse possession. They are not in possession under any claim of title. A claim of title is something more than a claim of right. A mistaken construction of a conveyance which does not in fact upon its face include the premises cannot be the foundation of a claim of title (Crary v. Goodman, 22 N. Y. 170 ; Higinbotham v. Stoddart, 72 Ib. 94 ; Dawley v. Brown, 79 Ib. 390). (b.) The court of appeals has held that the statute of adverse possession does not apply to such an estate as the plaintiff has in Greenwich and in Rector streets—to an interest or estate which passes as an appurtenance (Corning v. Troy Iron & Nail Factory, 40 N. Y. 192 ; Broistedt v. South Side R. R. Co., 55 Ib. 220). (c.) The constitutionality of the acts authorizing the construction of the elevated railroads was only sustained by construing them to authorize the building the roads upon condition that the property taken must first be compensated for (Matter of N. Y. E. R. R. Co., 70 N. Y. 327; and Story case, at p. 148). Claims founded upon such acts of the legislature are, therefore, not adverse, but are subordinate to the rights of the owner (Broistedt v. S. S. R. R. Co., supra).

    II. Plaintiff did not purchase the premises in suit, subject to any burden thereon in defendants’ favor. Defendants were in the position of mere trespassers, and had acquired by their wrongful trespass no right in the property as against plaintiff’s grantors. Plaintiff became vested by his deed with all the estate of his grantors in the streets, and has the same right which they had to remove unauthorized obstructions from the same. The defendants were not parties to the conveyance to plaintiff ; the change of title could not give them. any rights in the property that they did not previously possess. They were trespassers before and they continued to be trespassers afterwards, with no better right to continue their trespass against the new owner than against the owner at the time their wrongful occupation commenced. Plaintiff purchased the property and he is entitled to have defendants removed therefrom, unless they had acquired, at the time of his purchase, a right to the possession thereof, and it is not pretended on their behalf that they had acquired any such right.
    III. The argument of defendants proceeds throughout, upon an erroneous assumption, and is misleading. Their contention is that this is an attempt by plaintiff to recover damages for the taking of property by the defendants prior to plaintiff’s purchase. It is nothing of the kind. This is not an action for damages; it is substantially equitable ejectment. We ask to have a trespasser restrained from further using the premises that we have purchased. We make no claim for past damages, except in so far as they are accrued since we purchased, and the damages awarded to us are simply difference in rental value since plaintiff became the owner.
    IV. What plaintiff paid for the property does not concern the defendants. They can found no title upon the fact that the former owner chose, rather than to incur the burden and expense of a lawsuit to remove them, to sell the property for less than its actual value.
    V. It is quite immaterial what liability to the plaintiff’s predecessors in title may have resulted from the wrongful acts of the defendants. That does not impair the legal rights of the plaintiff.
    VI. The argument of defendants, that, by the erection of what they call their permanent structure, the easement was, pro tanto, destroyed, leaving nothing but a claim for damages to the then owner, comes down to this: a man makes entry upon your premises, a mere trespasser, and vi et arnvis erects upon your land a permanent structure ; immediately, upon the completion of the structure he ceases to be a trespasser and becomes a purchaser of your property, against your will; your ownership of the fee is destroyed; your right to remove him is gone; your interest is reduced to a simple chose in action. As against yourself and your heirs and assigns, this mere trespasser, by the act of erecting a permanent structure, has acquired a title to your premises in fee simple absolute. Ho such principle can be maintained. That is, the damages are awarded as the natural and necessary consequences of the original entry, of the act of erecting the structure, and not upon the theory that they are to be compensation for the subsequent use and occupation of the premises by the trespasser. By the payment of such damages the trespasser does not purchase the right to maintain the structure for Ms own benefit. In reference to the same matter the court m the Henderson case (78 N. Y. 423), says : u No doubt an action might have been brought for the origmal trespass m entering and placmg the railroad structures upon the land, and other successive actions for contmmng it, for in such a case it is said that recovery of damages in the first action by way of satisfaction for the wrong would not operate as a purchase of the right to contmue the injury.” (See also Mills Eminent Domain, § 90 ; Addison Torts [Dudley & Baylies’ Ed.], Vol. 1, 332.)
    YII. The plaintiff’s claim for damages in tMs smt is for the wrongful use of his mterest in the streets since he acquired title. The measure of tMs damage is the difference between what the property has actually rented for srnce Ms purchase, and what it would have rented for if the railroad had been out of the streets. The liability for that wrongful use prior to plaintiff’s deed is not vested m him. Agamst that liability the defendants have protected themselves by their $400 release. The only elements of damage considered by the courts were, the obstruction to light, air and access of plamtiff’s premises, by reason of the existence of the structures.
    YTTT- The cases of Corning v. Troy Iron and N. Factory and Broistedt v. South Side R. R., above cited, are in all respects identical with tMs case, and must be overruled if defendant’s contention is to be sustamed. The Cornrng case was an action in eqMty, brought by a subsequent purchaser to restrain the contmuance of a permanent structure, i. e., a dam further up the stream, which diverted the water from plamtiff’s premises, and the defendants set up this same claim, that the diversion bemg made in a permanent manner, and bemg held by them under claim of right at the time of the conveyances to plamtiff, the right to the flow of water had ceased to be appurtenant to the premises, and that the right to compel a restoration of the same did not pass to the plaintiff under Ms deeds. It is true that at the time the structure was erected defendants were lessees of the premises, but their lease had expired before plaintiff purchased (lease expired February 1, 1852; first conveyance the plaintiff July 23, 1852. See case at general term (39 Barb. 311), and the defendants expressly repudiated claiming under any lease, and alleged that plaintiff’s deed was void for the reason that they held the water privilege adversely to the grantor at the time of the conveyance. In the Broistedt case the defendant, a railroad company, entered under an act of the legislature, built a permanent structure, and were occupying and . using same under claim of right when plaintiff bought. The court of appeals sustained plaintiff’s right to precisely the same judgment that has been awarded to us in this action.
    IX. The cases cited by the defendants are misleading. They were all either actions for damages, or controversies respecting damages awarded, under statutes which permit railroads to take lands prehminarily, and give the then owner a right to a subsequent assessment of the damages resulting from such taking, (a.) In Sargent v. Machias (65 Me. 591), and Neal v. K. & I. R. R. Co. (61 Me. 298), there had been a legal taking of the lands, and the question arose upon appeals from the awards made by the county commissioners. The Maine statutes, under which the proceedings were had, authorized a taking of the lands, and a subsequent assessment in favor of the then owner. (See Webb’s R. R. Laws, Maine, 579, 580, 598, 599 ; Davis v. Russell, 47 Me. 443.) (b.) The same observations apply to Allyn v. P. W. & B. R. R. Co. (4 R. I. 461. See Charter, R. I. Laws, Oct. Session, 1850, p. 7, and June Session, 1852, p. 128.) (c.) In Rand v. Townshend (26 Vt. 670), and the several Pennsylvania cases cited, there had been a legal taking of the lands, and the question arose upon appeals from or claims to the damages awarded under the statutes, (d.) McLendon v. Atlantic & W. P. R. R. (54 Get. 293), was an action on contract brought on the theory that the defendant had, with the owner’s consent, taken a right of way under an implied promise to pay its value. The court simply held that “if the taking was under such circumstances as to raise an implied promise to pay its value,” the action upon this promise could only be brought by the person to whom it was made, that is, the owner at the time, (e.) Pomeroy v. Chic. & Mil. R. R. (25 Wis. 643), was an action for damages brought by the person who was owner at the time the road was built, and who had expressly reserved out of his sales the fee of the strip used by the railroad company, and all claims for damages to the property sold caused by the construction of the road. (/.) In Van Zandt v. Mayor (8 Bosw.), the question involved was the measure of damages for a breach of covenant caused by the erection of a permanent structure outside of the premises, which structure had the effect of destroying an easement which plaintiff’s ancestor had been enjoying, but to which he had no legal title, (g.) Green v. N. Y. Central & H. R. R. R. (Superior Ct. Spec. Term), was an action for damages. The structure complained of was the freight depot erected in St. John’s Square. Plaintiff was not an abutting owner, nor did he own on the opposite side of the street, his premises being diagonally across upon the opposite corner.
   Per Curiam.

Judgment appealed from affirmed with costs on the opinion of the court at special term.

Opinion at Special Term.

Ingraham, J.

The complaint in this action alleges in substance that plaintiff is the owner and possessor of certain property in the city of New York on the southeast corner of Greenwich and Sector streets, and of portions of Greenwich and Sector streets, immediately in front of and adjoining the same, to the center of said streets respectively; that the defendants the New York Elevated Eailroad Company are the owners of a railroad running through said Greenwich street past and in front of said premises owned by plaintiff, and that said railroad is now operated by the defendants the Manhattan Elevated Eailway Company as the lessees and agents of the New York Elevated Eailroad Company; that in Eector street the defendants have constructed a depot from the said railroad in Greenwich street, and extending through Eector street beyond the rear line of the plaintiff’s property ; that the said railroad and other structures erected by the defendants occupies and greatly obstructs the streets and passage-way to and from plaintiff’s property and occupies and uses plaintiff’s property in the said streets without the consent of the plaintiff or without having paid any compensation therefor, and prays that "defendants may be enjoined from maintaining, continuing or operating said railroad and structures now existing in said streets in front of plaintiff’s said property ; that they be compelled to take down and remove the same, and plaintiff have judgment for the damages sustained by virtue of the continuance of such structure and railroad.

The action, therefore, is one brought on the equity side of the court to restrain the defendants from the unauthorized use of the plaintiff’s property, and to recover such damages as plaintiff has sustained by reason of such unauthorized use.

The learned counsel for the defendants insists that as at the time such damages were sustained and the road was built, plaintiff was not the owner of the property, and defendants did not build the road, plaintiff cannot recover, but it seems to me that this position mistakes the theory on which the action is brought. It is not that the defendants are hable to plaintiff for building the road, but that they are hable for the use by them of plaintiff’s property.

Plaintiff claims that he has certain property in the streets which defendants use, and use without plaintiff’s consent, and without paying him compensation therefor ; and plaintiff asks the court to enjoin the further use of the property, and the damages asked are only such as plaintiff has sustained by the unauthorized use of such property by defendants since plaintiff became its owner. The building of the road is not complained of, the use of the road before plaintiff purchased' is not complained of, but the occupation and use of plaintiff’s property in the future, is what the plaintiff asks the court to restrain, and for the use of such property, since he purchased it, plaintiff asks compensation.

That such an action can be maintained is well settled in this state (Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Henderson v. N. Y. Central R. R. Co., 78 Ib. 423; Story v. N. Y. Elevated R. R. Co., 90 Ib. 122).

The court of appeals in the Story case, has decided that plaintiff in that case had an easement in the streets in front of his premises, and that he was entitled to an injunction restraining the use by the railroad company of such property. It can make no difference at what time he became the owner of the property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendants appropriated it, or the day before the commencement of the action.

The principal question to be determined is, what property, if any, plaintiff has in Greenwich and Rector streets, in front of and adjoining his lot, that has been appropriated by the railroad company.

The lot in question was included in a lage tract of land which was granted in the year 1705 to “The Rector and Inhabitants of the City of New York in Communion of the Chinch of England as by law established,” a corporation created by Royal Charters. The name of such corporation was by law changed to “The Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York.” The corporation caused the property to be surveyed, and laid out into lots by Francis Maerschalk, about the year 1761. On that map appears a street, without name, running from Broadway to Lumber (now Church) street, twenty feet wide, which corresponds with a portion of the present Rector street, and .a street called First street, forty feet wide, which corresponds with the easterly portion of Greenwich street. By a conveyance dated April 9, 1761, the church corporation remised, released and quit-claimed to the mayor, aldermen and commonalty of the city of Hew York, the said streets as they are particularly laid out, described and named in said map : “To have and to hold all and singular the said several and respective streets unto the said mayor, etc., and their successors, to be, remain and continue forever hereafter for the free and common passage of, and public streets and ways for the inhabitants of the said city of Hew York, and all others passing and returning through or by the same, in like manner in the other public streets of the said city now are or lawfully ought to be ” and this conveyance was accepted by the city of Hew York. It appears that subsequently Rector street was extended to - the river, and First street was widened and called Greenwich street. The exact date of such extensions does not appear, but on a map dated 1815 both streets appear substantially as they now exist. The fee of Greenwich street in front of plaintiff’s property passed to the city of Hew York by the deed from the church corporation dated 1161, but by the conveyance, the property conveyed was to be held by the city as a public street forever; the city accepted the conveyance subject to this condition, and this, I think, gave the owner of the adjoining property the right and privilege of having the street kept open forever as such, and the court of appeals in the case of Story v. The New York Elevated Railroad Co. (90 N. Y. 145), has decided that such a right was “an incorporeal hereditament. That it became at once, appurtenant to the lot and formed an integral part of the estate in it,” and constituted a perpetual incumbrance upon the land burdened with it. The lot became the dominant, and the open way or street the servient tenement.

The extent of this easement in Greenwich street has, I think, also been settled by the court of appeals in the Story case (90 N. Y. 122). Judge Danforth, at page 146, says : “ Generally it may be said it (the easement) is to have the streets kept open, so that from it access may be had to the lot, and light and air furnished across the open way. . . . That above the surface there can be no lawful obstruction to the access of light and air to the detriment of the abutting owner.”

In regard to Rector street, it does not appear that the fee of the'street was ever acquired by the city; but I think that from the evidence it may be assumed that prior to the year 1815, the church opened the street from Broadway to the river, and had dedicated it for a public street. By a deed dated July 13, 1843, Trinity Church Corporation conveys to Jacob Fash a piece of land known as lot 47, bound westwardly in front by Greenwich street, northwardly on one side by Rector street, and which, by several conveyances, became vested in the plaintiff. The fee of half the streets in front of plaintiff’s property, that had not been conveyed or released by the Trinity Church Corporation to the city, passed by the deed to Fash, and through the various conveyances to the plaintiff (Sherman v. McKeon, 38 N. Y. 266 ; Story case, opinion of Tracy, J., 90 N. Y p. 163).

So that it appeared that the fee of Greenwich street was in the city, subject to the easement appurtenant to plaintiff’s lot, and that the fee of one-half of Rector street in front of plaintiff’s property was vested in plaintiff, subject to the easement that it should be kept a public street.

It was held in the dase of Williams v. The New York Central Railroad Co. (16 N. Y. 97), that in such a case, “the public acquired nothing beyond the mere right of passing and repassing upon the highway, and that in all other respects the rights of the original owner remained unimpaired. ” And again: It “ cannot be successfully contended, either that the dedication of land for a highway gives to the public an unlimited use, or that the legislature has the power to encroach upon the reserved rights of the owner by materially enlarging or changing the nature of public easement,” and held, that to allow a railway track to be constructed on a highway is a material change in, or enlargement of the uses to which the highway was originally dedicated, and that the legislature had had no power to give a railroad the right to build upon the highway without compensation to the owner of the fee.

That the structure as erected and used by the defendants in Greenwich street is, to some extent, inconsistent with the use of such street under the conditions of the grant to the city of New York, is, I think, established by the evidence. It prevents, to some extent, the free access to plaintiff’s lot; it obscures the light, and to some extent, the free circulation of air.

This point was directly involved in the Story case (supra). Judge Tracy says, on page 170, “We think such a structure closes the street pro tanto, and this directly invades the plaintiff’s easement in the streets as secured by the grant to the city. . . . The defendant’s railroad, as authorized by the legislature, directly encroaches upon plaintiff’s easement and appropriated his property to the uses and purposes of the corporation; this constitutes a taking of property for public use. It follows that such a taking cannot be authorized except upon condition that defendant make compensation to the plaintiff for the property taken.”

The cases cited by defendant have all been examined, but so far as any of them are in conflict with the rule laid down, they must be held to he overruled by the cases above cited.

It follows, therefore, that if plaintiff is the owner of the easement in Greenwich street, and the fee of Rector street, that he is entitled to judgment restraiiiing the defendants from contmuing. to use his property.

It was argued, on the motion for a non-suit, and again on summing up, that as at the time of the conveyance to plaintiff, defendants were in possession of the property claimed by plaintiff, that no title to the easement or property passed by the deed, under 1 Revised Statutes, § 147, page 739.

The court of appeals in the case of Corning v. Troy I. & W. Factory (40 N. Y. 192), decided that the statute does not apply to the holding of a right appurtenant to land, but only to the land itself. The statute does not prevent the title to the half of Rector street from passing by the deed to plaintiff, as the possession of the railroad company must be presumed to be in subordination to the rights of the owner. The evidence would not justify me in finding that it was adverse to him (Broistedt v. South Side R. R. Co., 55 N. Y. 220).

I have carefully considered the arguments and authorities to which my attention has been called by the learned counsel for the defendant, and I am of the opinion that the defendants have appropriated, and are using the property of the plaintiff -without his consent and without compensation, and that plaintiff is entitled to judgment.

The remaining question is, to what damages, if any, is the plaintiff entitled for the use of the premises since he acquired title to the property on January 7, 1882.

The evidence of the rental value of the property belonging to plaintiff appropriated and used by defendants is. extremely unsatisfactory. The only evidence is the opinions of experts of the depreciation in the rental of the premises in consequence of the existence of the railroad station, and there is no direct evidence of the rental value of plaintiff’s easement of light, air and right of access.

From all the evidence, however, I think that plaintiff should recover $500 per year for the use of his property appropriated and used by the defendants.

It was my intention on the trial of the case to follow the rule laid down in Henderson v. New York Central R. R. Co., and which was affirmed in 78 N. Y. 423, and find the value of the plaintiff’s easement and provide in the judgment that if defendants pay to plaintiff the sum so found as the value of the premises appropriated by defendants, the injunction asked for should be denied. The defendants, however, have not asked for such a finding, and as such a finding would be for their benefit, and the evidence is so unsatisfactory as to the value of such easement used by the defendants, I have concluded simply to order judgment for the plaintiff that the defendants be enjoined and restrained from using the property of the plaintiff in Greenwich and Rector streets, and that plaintiff recover from the defendants the sum of $500 for each year from the time plaintiff became the owner of the said property to the entry of judgment as damages for the use of such property by defendants, allowing defendants to take such proceedings to acquire the property as they may be advised.

In consequence of this view of the case, it will not be necessary to determine the question of the right of defendants to use Rector street for the stations.

I think, however, I should follow the suggestion of Judge Tracy in the Story case, and direct that the injunction should not issue until the defendant has had a reasonable time after the entry of judgment to acquire plaintiff’s property, either by agreement or by proceedings to condemn the same and I think such reasonable time would be six months after the entry of judgment.

Judgment is therefore ordered for the plaintiff, in accordance with the views contained in this opinion, -with costs.


text:
    SAMUEL K. M. KEPNER, Appellant v. JOHN J. BETZ, Respondent.

      Newly discovered evidence.—New trial not granted for when immaterial.— Application of rule.—-Discretion.

    This action was brought for an accounting of the affairs of a partnership, alleged by the plaintiff to have existed between him and the defendant. Articles of copartnership were entered in between John J. and John G. Betz, the firm name to be Betz & Co. Plaintiff claimed, that although John G. Betz was named in the articles, yet he only represented the plaintiff, who was, in fact, the partner of John J. On the trial it appeared from the testimony of the plaintiff and witnesses, that by his ' consent the only relation of partnership the defendant entered into, or meant to enter into was with J. G. B., and not with plaintiff; and upon this ground judgment went against plaintiff. On the trial, a 'former book-keeper of Betz & Co. had testified as to the entries in the books of that firm. The newly discovered evidence consisted of the books referred to. Held, that the contents of these books could not disturb the testimony above referred to.

      Decided December 1, 1884.

      Farther held, that the new trial rests in the sound discretion of the court, and this discretion will not be exercised in favor of a fraudulent moving party.
    So held, when one of the objects of an executory contract, sought to be enforced by the moving party, was to defraud his creditors. This although the enforcement of the contract was not defended on that ground.
    Laches as ground for denying motion, considered by the court.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by plaintiff from an order denying his motion for a new trial.
    The facts sufficiently appear in the opinion.

      Clarence W. Francis, attorney, William Fullerton and Hamilton Odell,
    of counsel for appellants, on the points decided, urged. I. The new evidence is material and is not cumulative. Cumulative evidence is additional evidence to support the same points, and of the same character as that already produced (Brisbane v. Adams, 1 Sands. 198 ; People v. Super. Court, 10 Wend. 285). It is additional evidence of the same kind (Fleming v. Hallenback, 7 Barb. 278). It is evidence from the same or a new witness, simply repeating, in substance and effect, or adding to what has before been testified to (Parhsall v. Klinck, 43 Barb. 202). But evidence is not cumulative if it is of a different kind and character from that adduced on the trial (Guyot v. Betts, 4 Wend. 579). Where at the trial the note sued on was supposed to be lost, and proof of its contents was given, and thereafter the note having been found, a new trial was moved for, it was held, that the note itself was not proof of the same character as that offered on the trial. It was of a higher grade and the motion was granted (Platt v. Munroe, 34 Barb. 296). Where evidence on the trial was wholly circumstantial, and the “ newly discovered ” is positive and direct—the latter is not cumulative, although the same fact is sought to be proved by each (Guyot v. Betts, supra.)
      The case of Hodge v. Denny, (6 Alb. L. J. 192) was one of á lost receipt that had been given for interest on a mortgage. Plaintiff denied having given the receipt. After the trial the defendant found the receipt and moved for a new trial, which motion was denied—but the order was reversed by the general term—the court citing 34 Barb. 291, and Adams v. Bush, (2 Abb. N. S. 106). In May v. Strauss, (2 Abb. N. C. 274) which was an action for rent, the tenant testified that he had paid it by a check. After the trial it was discovered from his bank account and checks that no such check existed. A new trial was granted for newly discovered evidence. (See also Wehrkamp v. Willett, 1 Daly, 4 ; Raphaelsky v. Lynch, 43 How. 157).
    II. The newly discovered evidence must be of such a character that it is fairly probable that it will change the result on a second trial (Fowler v. Kelly, 43 Super. Ct. 380 ; Schultz v. 3d Avenue Co., 47 Ib. 285 ; Starin v. Kelly, 47 Ib. 291 ; Darbee v. Elwood, 67 Barb. 359 ; Adams v. Bush, 2 Abb. N. S. 111).
    This evidence sought to be introduced is of such character. It consists of the original books of this firm, containing the original entries showing conclusively who were the partners who contributed the capital to this firm ; corroborated by similar entries in the ledger of a third party, who sold the original plant and stock in trade to said firm. Also the original. memoranda of the book-keeper of said film, used by him in making up the annual statement of profits to each partner.

      Turner, Lee & McClure, attorneys, and Herbert B. Turner,

    of counsel for respondent, for the points decided, urged: I. Newly discovered evidence, to justify a new trial, must be of such a nature and so material that it would probably produce a different verdict if a new trial were granted. It must be strong and very important (People v. McGuire, 2 Hun, 260). Such new evidence must not be overborne by the affidavits on the other side as to the material facts of the case (Gautier v. Douglass M'f'g Co., 52 How. Pr. 325 ; Hatfield v. Macy, Id. 193). In other words, the new evidence must, if conceded to be true as claimed, taken in connection with the case, and the affidavits of the other side, warrant, in the opinion of the court, a judgment for the plaintiff. This is by no means the fact in the present case. The verdict on a new trial must be for the defendant. For, even if the plaintiff and his principal witness, Zulick, were credible and trustworthy witnesses, their testimony is wholly overborne by the testimony of the other side. The documentary evidence shows who formed the partnership, but beyond this the evidence of witnesses who knew of the facts is conclusive. John J. Betz, the defendant, John F. Betz, the brother who sold the property to them, Sophia Kepner, formerly the wife of the plaintiff, are clear and positive that there was not, and never could have been any partnership between these parties. But the plaintiff and Zulick are unworthy of belief, according to their own showing.
    II. The motion was properly denied, because of the laches of the plaintiff in not moving promptly. His affidavit was made February 23, 1884. He says that he learned within the last month, which was January, that the books were in existence. He therefore delayed his application nearly two months. There is unnecessary and fatal delay (Woolf v. Jacobs, 45 How. Pr. 403, 407).
    III. The motion was properly denied, because the facts, as stated by the plaintiff, constitute a fraud upon the plaintiff’s creditors. Plaintiff says that this peculiar arrangement was entered into to protect his interest in the business from his creditors. Comstock says the same thing. While a party who places his property in the hands of a third person in order to defraud his creditors may have legal claims against such person, the court will not, in the exercise of its discretion, do anything to extricate him from any trouble into which he may have been led by his own fraudulent acts.
   By the Court.

Sedgwick, Ch. J.

The plaintiff charged in his complaint, that on May 1, 1865, he and the defendant entered into a copartnership to be continued for ten years ; that the ten years had expired ; that there had been no copartnership accounting, and therefore he demanded judgment for such an accounting. The answer denied that there ever was a copartnership. On the trial the plaintiff swore that articles of copartnership had been made between the defendant and himself; that the latter had signed a counterpart, which he, the plaintiff, had deposited in his desk. The articles, according to plaintiff’s testimony, were drawn by Mr. Comstock, the lawyer, engaged for the purpose of drawing whatever papers were made in the transaction. At the same time, according to the affidavit of plaintiff, used upon the motion for a new trial, articles of partnership between the defendant and one John G-. Betz, under the firm name of Betz & Co., were drawn. Both sets contemplated a partnership term of ten years. Contemporaneously were drawn an agreement and a power of attorney, that constituted the plaintiff the general attorney and superintendent of Betz & Co. Both articles of partnership related to the same business, according to plaintiff’s assertion. The plaintiff’s interest, according to him, was represented by John G-. Betz. John G-. Betz appeared as a partner instead of the plaintiff, because it was agreed and understood that plaintiff’s name should not appear as a copartner, for the reason, that a judgment had been recovered against the plaintiff in the stale of Pennsylvania, for a considerable sum of money, which he was unable to pay. He remained as superintendent for about a year, and then left the business entirely, and after that year did no business in the firm or appear at its place of business, excepting occasionally, from time to time, he would go into the office, and be turned out by the defendant. He swore that from May 1, 1865, to May 1, 1866, he did not represent or hold himself out to be a partner to any outside parties. The only representation that he was a partner, were the articíes of copartnership between the defendant and himself, and the opening of the creditors’ ledger, which he testified was entered in the name of himself and the defendant and carried on in that way.” The plaintiff testified that soon after he first left the business, his desk was opened ■without his leave and the articles between himself and the defendant taken therefrom. He called as a witness, the counsel referred to, who testified that he never drew, or were there signed, articles of partnership between plaintiff and defendant, but he did draw the other articles and the agreement referred to, and they were executed. The case generally discloses, that the conduct of the plaintiff for many years was the reverse of that which would be adopted by a man conscious of possessing a right to share in a great amount of profits.

He produced as a witness one Zulich, a former bookkeeper of Betz & Go., who testified that the creditors’ ledger contained a charge which would indicate that the plaintiff had paid one half of the price of certain chattels, which formed a part of the capital of the firm. The witness also testified that there was nothing else in that book to indicate any other partnership in the business.

On the whole case, the learned referee was of the opinion, that it was probably the intention of the parties that the plaintiff should receive from the arrangement that was made some benefit, but not as a partner of the defendant, and that there was no intention, that the defendant should enter into any obligation to the plaintiff. The obligation incurred was performed, if the defendant gave to John 0. Betz his due as a partner; and that whatever interest the plaintiff may have had through John Gr. Betz, must be realized from him. He further said as to the testimony of Zulich : “ The character of this witness, by his own showing, is not the best, and while if the entries were clearly proven, and knowledge of them was brought home to the defendant, they would form an important fink in the plaintiff’s proof, as the evidence upon the subject now stands, without other proof, than that which has been introduced to substantiate the plaintiff’s claim, I do not think it materially strengthens his case.” These remarks show, that the referee was not of the opinion, that if he had thought that Zulich might be behoved, he would have come to any other conclusion than that the remedy the plaintiff might have, if his testimony were true, was against John Gr. Betz and not the plaintiff. The judgment upon the referee’s report was affirmed by a dismissal of an appeal.

The appeal here, is from an order denying plaintiff’s motion for a new trial,' made upon the ground of newly discovered evidence. That evidence is alleged in the plaintiff’s affidavit to be the books, the contents of which Zulich testified to. Such a motion rests in the sound discretion of the court, and is not a matter of absolute right. I am of opinion that the judge properly denied the motion for the following reason: whatever may be those contents, they cannot disturb the testimony of the plaintiff and his witnesses, that by his consent the only relation of partnership which the defendant entered into or was meant to enter into, was with John Gr. Betz and not the plaintiff. These books might tend to show what was intended to be the relation of John Gr. Betz to the plaintiff. This is not the issue. If it were involved, I should be of the opinion that the judge below exercised his discretion properly in refusing to enforce an executory contract in favor of plaintiff, when it appeared that one of the objects of such contract was to defraud his creditor. The defendant does not defend on this ground. But I think it may be regulative of the exercise of discretion. It is proper to keep in mind, however, that the defendant was not called upon to answer as to the nature of the arrangement, if it has been ascertained that no partnership existed between the parties to this action.

Another reason that supports the order is, that the plaintiff was guilty of laches, under the circumstances.

The order should be affirmed with $10 costs.

Van Vorst and Freedman, JJ., concurred.


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    MORRIS J. RITTERMAN, Respondent v. ELIHU H. ROPES, Appellant.

      Decided December 1, 1884.

      Negligence.—Elevator—Obligation of one furnishing for use.— Contributory negligence—Finding of jury against not disturbed.

    Defendant being the owner of a building, constructed in it an elevator, for the purpose of carry goods to its several occupants, the customary mode of raising goods being for the party delivering them to place them in the elevator and then himself (not going up with the elevator but remaining standing on the ground floor) raising the elevator to the floor occupied by the party for whom the goods were destined, and place the elevator in charge of the janitor of the building. Held, that defendant was under an obligation to persons delivering goods to occupants (the janitor being in actual control) to use an ordinary degree of care in having or keeping the elevator safe for customary use.
    Plaintiff, having some bottles to deliver to an occupant of the building above referred to, placed them under the direction of the janitor upon the elevator, and began raising the elevator, the janitor standing by and observing the manner in which he pulled the rope. After he had raised a considerable distance, and while he, under the janitor’s direction (as testified to by him but denied by the janitor) was looking up the shaft for the purpose of seeing whether a light shone into the elevator, one of the bottles fell on his head and injured him. The bottles were stood on the floor of the elevator without being placed in a basket or any equivalent thing, to prevent them from toppling oyer; and plaintiff did not pull the ropes in a steady, regular but in a jerking intermittent manner. Held, that the verdict of the jury finding there was no contributory negligence should not be disturbed.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by defendant from a judgment against Mm, entered on the verdict .of a jury, and also from an order denying a motion for new trial made upon the judge’s minutes.
    The facts sufficiently appear M the opiffion.

      C. S. See, attorney, and Theron G. Strong,

    of counsel for appellant, on the questions written on by the court, urged : I. Neither the alleged careless and faulty construction of the elevator, nor the circumstance that it was out of repair, imposed any liability on the defendant as landlord, and the motion for a new trial should therefore have been granted.
    If the construction was careless and faulty, no liability arose, because it is well settled that from the mere fact of letting, no contract is implied that the demised premises are or shall be fit for a tenant’s business, nor that they are tenantable for the purposes intended (Jaffe v. Harteau, 56 N. Y. 398 ; Outerbridge v. Phelps, 45 Super. Ct. 555). The rule caveat emptor, applies in all cases of letting (O’Brien v. Capwell, 59 Barb. 497 ; McGlashen v. Talmadge, 37 Id. 314; Cleeves v. Willoughby, 7 Hill, 83 ; Howard v. Doolittle, 3 Duer, 464). But there is no proof of faulty construction. Ochiltree’s testimony, that the platform was not sufficiently wide, is disposed of by Lawrence’s, that the space was necessary for the rope, and that the principal cause of its working hard was the wearing away of the wheel, and both of these witnesses are plaintiff’s. All that the evidence can be claimed to prove, is that the elevator was not in repair.
    The fact that the elevator was out of repair imposed no liability, because it is well settled that in the absence of an agreement to repair, the owner of premises is not hable to tenants or those visiting them for damages sustained by reason of the condition of the property (Jaffe v. Harteau, 59 N. Y. 398 ; Ryan v. Wilson, 87 Ib. 471 ; Keyser v. Herth, 36 Super. Ct. 348; Converse v. Walker, 30 Hun, 596 ; Doupe v. Genin, 45 N. Y. 119 ; Edwards v. N. Y. & Harlem R. R. Co., 35 Hun, 634 ; Clancy v. Bryne, 56 N. Y. 29 ; O’Brien v. Capwell, 59 Barb. 497). There is no evidence of any agreement by the defendant to keep the premises in repair, and the presumption, in the absence of evidence is, that it is the tenant’s duty to repair (Mayer v. Moller, 1 Hilt. 491; Ulrich v. McCabe, Ib. 251; Waggoner
      v. Germaine, 3 Den. 306; Blunt v. Aekin, 15 Wend. 522 ; 4 T. R. 18).
    II. The court erred in denying a motion for a new trial, for the reason that the defendant is not chargeable with negligence, as he owed no duty whatever to plaintiff respecting the premises in question. The plaintiff came to the premises on his own business, for his own advantage, to serve one of his own customers, and not for defendant’s benefit or gain. He was not invited, enticed or allured therein, and the defendant is not within the rule applying to inn-keepers, store-keepers or owners of halls of entertainment. The plaintiff at most was suffered or permitted to enter and to use defendant’s property, and he was therefore a mere licensee, entering upon and using the premises subject to all risks (Converse v. Walker, 30 Hun, 596 ; Victory v. Baker, 67 N. Y. 366 ; Clancy v. Bryne, 56 Ib. 29 ; Jaffe v. Harteau, 56 Ib. 398 ; Keyser v. Herth, 36 Super. Ct. 348).
    III. The plaintiff was not injured by anything done or omitted by defendant, but solely by his own careless use of defendant’s property. He managed the elevator himself in his own way and free from defendants’ control. He placed twelve bottles of beer standing loose on the elevator, and obviously only a slight jar was required to overturn them. Instead of operating the elevator slowly and steadily, he grew impatient and jerked it, which doubtless overturned and caused the fall of the bottles. The plaintiff testifies : “I pulled it steady, but sometimes when I got impatient I jerked it; then I would rest; I only rested once ; I did not jerk it all the way ; I gave several long pulls, and now and then a jerk.”
    A bell and tube were within reach for the purpose of communicating with the upper floors. Instead of using them or attempting to do so, he placed his head inside the shaft in a position which he must have known to be one of danger. The circumstance that the janitor told him so to do, does not make the defendant hable. The fact that a person is directed to do a reckless and foolhardy act fur-rushes no excuse to the person doing the act. He is as well' able as the other to judge of the prudence of the act in question (Wilkinson v. Farrie, 1 H. & C. 683).
    But even then, nothing of defendant’s injured him. No part of the machinery broke or fell upon him. The injury was caused by his own bottle, which he himself had placed on an elevator which he was managing, and the bottle fell upon him owing to the reckless manner in which the elevator was managed.
    The injury is quite as consistent with plaintiff’s fault and more so, than it is with defendant’s negligence, and in such cases it is the duty of the court to dismiss the complaint (Cordell v. N. Y. C. & H. R. R. Co., 75 N. Y. 330; Reynolds v. Same, 58 N. Y. 248).

      Richard S. Newcomb,

    attorney and of counsel for respondent, urged:—I. Whatever may be the law as to the responsibility of a landlord, in the absence of contract for damages occasioned by premises becoming untenantable (which was the case in 56 N. Y. 398), it is settled law that if a man negligently or defectively constructs a building, and persons lawfuly there are injured by that defective construction, the owner is hable. (See Shearman & Redfield Negligence, § 56). Even as between master and servant, if the machinery furnished be defectively constructed, the master is hable for injuries the servant sustains (Painton v. Northern Central R. Co., 83 N. Y. 7 ; Kain v. Smith, 89 Ib. 375).
    II. There was therefore evidence of faulty construction, and the jury by their verdict have said it was so constructed and so maintained after defendant had owned it for six months.
    III. The elevator was there for the delivery of goods ; • and ah the defendant says is, “I do not know of any regulation that forbade them using the staircase.” Being there for the delivery of goods, if it was improperly constructed and the plaintiff sustained damage, without his fault, the owner is hable.

      IV. The plaintiff did not contribute to the accident by any negligence on his part. He did not work the machinery supplied by the defendant “in his own way,” but according to the instructions of the defendant’s janitor, the man put in charge by the defendant. “ I was directed by the janitor [to put my head in that elevator] to see if there w;as a light thrown out upon the shaft,” and the janitor don’t deny it, and beside, a man could only raise the elevator without exposing his body within the shaft if he was in the habit of raising the elevator.
    At all events, the question of contributory negligence was for the jury; courts only decide questions of negligence when facts are undisputed (Dickins v. N. Y. Central R. Co., 1 Keyes, 23 ; Hawley v. Northern Central R. R. Co., 82 N. Y. 379).
    Whether the “jerking” spoken of, or the way the bottles were placed on the platform, contributed to the accident, was a question as to which different inferences might be drawn, and when that is so, the matter belongs to the jury.
    To justify a non-suit, on the ground of contributory negligence, the undisputed facts must show the omission or commission of some act which the law adjudges negligence ; the negligence must appear so clearly that no construction of the evidence or inference drawn from the facts will warrant a contrary conclusion (Stackus v. N. Y. Central R. R. Co., 19 N. Y. 464).
    It is always a question for the jury when different inferences may be drawn from the evidence.
   By the Court.

Sedgwick, Ch. J.

The pleadings dispose of some of the positions taken by appellant on the argument. The answer admitted that the elevator was constructed for the purpose of raising goods to the several occupants of the building, and further, that, as was customary, the plaintiff raised the elevator to the fourth floor. The defendant, having furnished the elevator for use by persons in the situation of plaintiff, and being in the actual control of it, was under an obligation to the plaintiff to use an ordinary degree of care, in having it, or keeping it safe, for customary use. Indeed, on the trial there was no exception taken to the manner in which the issue as to the defendant’s negligence was left to the jury. The only question of law upon the trial, related to the plaintiff’s contributory negligence, the defendant claiming that there was no evidence that the plaintiff was free from contributory negligence. As to what the plaintiff did, and what he omitted to do, there was direct evidence from the plaintiff himself and from the janitor of the building. The latter was present at the accident. His testimony opposed that of the plaintiff in one important particular. The jury, however, was the competent judge to find whether or not the plaintiff’s testimony was true.

On this point, it cannot be maintained that it was contributory negligence for the plaintiff himself to pull up the elevator by a rope. The answer admits that he did that, as was customary, which implies a sanction by the defendant.

It is argued that it does not appear that the plaintiff used proper care in respect of his placing bottles, with beer in them, upon the platform, and then in hauling upon the rope as he did. It is said that the bottles should not have been deposited without being placed in a basket, or something equivalent, to prevent them, or some of them, from toppling over, and that the overturning of one might reasonably have been expected if the elevator were in the best condition, but that it was further brought about by the plaintiff not pulling upon the rope with a constant and steady strain, but in a jerking, intermittent manner.

The janitor, as the jury had a right to find, was asked by the plaintiff, on entering the building, how he was to get the bottles up. The janitor went with him to the dumb-waiter and told him to place the bottles on the waiter and pull it up as far as he could. The janitor stood so that he observed the manner in which the plaintiff pulled. In placing the bottles upon the waiter, the plaintiff grouped them together as close as it was possible to do, and other little articles, away from the front and towards the back part of the platform. The bottles were champagne bottles. It did not appear, as a matter of law, that an ordinarily prudent man would anticipate that such bottles would be likely to fall over when shaken by the ordinary use of the elevator, if it were properly constructed. The same is to be said, in respect of the use the plaintiff did make of the elevator. As a matter of law, it could not be determined that the plaintiff should have thought that the way in which he raised the elevator was not such as was necessary to its use, as it was. Moreover, as it appeared, as the jury might find, that in all he did, he acted under the instruction and by the assent of the janitor, who, as they might also find, had been placed by the owner in charge of the elevator, to regulate and direct its use by others, it was a question for the jury as to whether the case did not show that the plaintiff was not negligent, when he acted as he did, under the direction of defendant’s servant (Sheridan v. Brooklyn, &c. R. R. Co., 36 N. Y. 39 ; Clark v. Eighth Av. R. R. Co., 36 Ib. 135 ; Filer v. N. Y. Central R. R. Co., 49 Ib. 47; also 59 Ib. 351 ; Maher v. C. P. N. & E. R. R. Co., 67 Ib. 52 ; Spooner v. The Brooklyn City R. R. Co., 54 Ib. 230).

The injury was received by one of the bottles falling from the elevator, when it had been raised some distance, upon the plaintiff’s head, as he was looking up the shaft, for the purpose of seeing if a light shone into the elevator. It is claimed that this was an act of negligence. It could not be said, as matter of law, that it was negligence, unless it had been determined that the plaintiff in the use of prudence, should have thought that there was danger of a bottle falling, and that has already been said to have been for the jury to pass upon. In this respect again, the plaintiff acted by the direction of the janitor, as he swore; the janitor testifying to the contrary.

The issue of defendant’s negligence was left to the jury without objection. It is more than doubtful whether, on the motion for a new trial, the defendant could claim a right to have the verdict set aside on the ground that it was against the evidence, or the preponderance of testimony. If he could, my opinion is that the verdict cannot be set aside on either ground. The state of the plaintiff’s testimony as to contributory negligence has been examined. As to defendant’s negligence, there were facts tending to show that by the original construction of the elevator, as well as by its subsequent condition, caused by wear, the-raising it was more difficult than it should have been, and called for an irregular and unsteady pull upon the rope, and also that in raising the platform its method of construction occasioned its joggling movement inside of the shaft.

Judgment affirmed, with costs.

Van Voest and Freedman, JJ., concurred.


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    MARY C. FARGIS, Appellant, v. WILLIAM T. WALTON, Impleaded, &c., Respondent.

      Contract.—License.—Consideration.—Presumption as to pjapment and as to promise to pay.—Agent to obtain signature—authority to bind principal.

    In an action for damages for an unlawful entry by defendant into premises let by him to plaintiff and for unlawful acts therein done, the defense was, in substance, that plain till, among other tenants of adjoining houses, owned by defendant and in which he desired to make certain alterations, signed a writing as follows: “We, the undersigned, do hereby agree for the consideration of one dollar to us paid, the receipt of which we hereby acknowledge, to permit William T. Walton or his agents to make any alterations which he or they may deem necessary to carry out the plans and specifications in changing the houses we now occupy.” It appeared that the one dollar was not paid to plaintiff, and it was contended on her behalf, that there was no consideration, and that the instrument was therefore a mere license.

      Held, that as the plaintiff, the party apparently charged, only proved that the consideration named in the agreement was in fact not paid, and did not rebut the presumption that there was an agreement to pay it, the instrument must be held to be a, contract, and plaintiff had no power to withdraw the right it gaye defendant to enter for the purpose of the alterations.

      Decided December 1, 1884.
    There was evidence that plaintiff asked defendant’s agent who presented the contract to her for signature, what the alterations were to be, and before she signed it, was told by him that certain things were to be done, which it transpired were different from the alterations as in fact afterwards made, which latter were in conformity with the plans and -‘-’pecifications forming a part of the contract. On this statement of defendant’s agent, plaintiff signed the contract without examination of the plans and specifications referred to therein.

      Held, that plaintiff was bound by the contract and used the agent’s information at her own risk; and that she could not, in the absence of fraud, rely on an oral explanation of the writing as an answer to the contract; and that there was no presumption that the agent to procure the signature was authorized to bind his principals as to the contents of the plans and specifications.
    Before Sedgwick, Ch. J., and Van Vorst, J.
    Appeal by plaintiff from judgment dismissing complaint, upon direction of a judge at trial term.
    The facts appear in the opinion.

      William C. Reddy and Samuel Jones, for appellant.

      William McDermot, for respondent.
   By the Court.

Sedgwick, Ch. J.

The defendants had entered the premises, occupied by plaintiff, for the purpose of making alterations in them. The premises were rooms in a house, adjoining other houses, all of which were owned by one of the defendants, who was plaintiff’s landlord. The alterations, as proposed, required that plaintiff’s premises should be entered and used. The complaint charged that the defendants entered and did certain things, which the proof afterwards showed were a part of a proceeding to make the alterations. The complaint did not charge that the things complained of were unnecessary to the alteration, or that the manner in which they were done was wrongful; but charged that the entering and the acts specified were wrongful as to her.

The entry was made after the plaintiff had signed the.following instrument: “We the undersigned do hereby agree for the consideration of one dollar to us paid, the receipt of which we hereby acknowledge, to permit Wilham T. Walton or his agents to make any alterations which they or he may deem necessary to carry out the plans and specifications, in changing the houses we now occupy.” This had been signed by other tenants.

The main question on this appeal is whether the instrument was evidence of a contract or of a license. The plaintiff claimed it formed a license and not a contract. ‘The ground upon which this was based is the proposition, that there was no consideration paid for it as a contract, and to support this it is pointed out that the plaintiff testified that the $1 was not paid to her. The learned judge below preferred to pass upon other positions. Attention may be given to it here, for it is fmidamental to the right of the parties.

Childs v. Barnum (11 Barb. 14), may be used as a precedent in this case. ■ The defendant had signed an instrument : “In consideration of one dollar to me in hand paid, I hereby guarantee,” &c., the payment of the indebtedness of a third party. The defendant affixed his seal. The court held that the seal, apart from the expressed consideration of $1, was sufficient under the statute of frauds, which required that such an agreement should express a consideration ; and further, that the defendant was at liberty to rebut the presumption from the seal and the statement of the consideration of $1, by showing that in fact there had been no consideration for the contract. It was held (p. 17) that “whether the consideration was $1 or $50, or was large or small, makes no difference in the case (Oakley v. Boorman, 21 Wend. 588).

The defendant in the cited case had proved, as in the present, that $1 had not been paid to him. The court said, “ And although here the guarantee being in the present tense, that uncertainty is not so palpable, it is not entirely removed; it is presumptive evidence of actual payment, but not conclusive. So in the case of a deed conveying land, the words used similar to these are presumptive evidence of payment in an action for the purchase money ; but when it is shown that the money has not been paid, they become presumptive evidence of an agreement to pay the amount of the consideration, although that presumption might be varied by showing an actual contract for a different consideration or an intention to make a gift.” It is not necessary to the decision of this appeal, to say that the recital of a pecuniary consideration as paid, is, or is not, uncontrovertible evidence of the consideration that the parties agreed to. For in this, as in the cited case, the party apparently charged, only proved that the consideration named in the instrument was in fact not paid, and did not attempt to rebut the presumption that there had been an agreement to pay it.

Similar views were taken in Barnum v. Child (1 Sand. 58), which was the case in which Childs v. Barnum (supra), was an appeal. This conclusion would not be varied by considering that in the present agreement, there was an acknowledgment of the receipt of the §1. That might be contradicted, but the contradiction would leave unimpaired the presumption as to what was the agreement of the parties. I therefore, am of the opinion that the instrument was a contract, and the plaintiff had not the power to withdraw the right it gave to the defendants to enter for the purpose of the alteration.

Another position for the plaintiff is, that at the time she signed the contract, she asked the defendant’s agent who presented it to her, for execution, what the alterations were to be, and that before she signed, he told her that by them certain things were to be done, which it turned out were different from the alterations begun at the time of the alleged wrongful entry and afterwards completed. The plans and specifications referred to in the contract, provided for these alterations that were completed. The plaintiff’s counsel substantially asked the court to charge the jury that if the defendant’s agent did make the remarks that have been referred to, the plaintiff was not bound by the contract. The court did not erroneously refuse this request. A person requested by an agent to sign a contract with certain provisions, has no right to rely upon an oral explanation of the writing, when the writing itself will be the contract or form the conclusive evidence of it, fraud . being absent; and fraud is not charged here. The plaintiff knew at the time that the defendant’s proposed contract referred to whatever was in the plans and specifications, and not to any oral description of what the plans and specifications contained. The former was to be part of this contract, the latter was not. . There was no presumption that the agent to procure the signature was the agent to bind his principal as to the contents of the plan and specification. The fact seemed to be, that she used the agent’s information, perfect or imperfect as it may have been, as a substitute for her own examination of the plans, which it was inconvenient to hér, to examine. In this respect, he was the plaintiff’s agent.

It does not appear that the permission to alter in the contract had been exhausted by the alterations that had been made, before the alterations begun by the entering of the premises in question here.

Judgment affirmed, with costs.

Van Vorst, J., concurred.