author: By the Court.—Dugro, J.

text:
    THE OREGON IMPROVEMENT COMPANY, Appellant, v. JOHN B. ROACH, et al., as Executors, &c., Respondents.

      Contract for construction of ship.—Acceptance of ship, by assignee of contract.—Estoppel.

    In February, 1883, a contract was made between John B. Roach, the defendants’ testator, and the Oregon Railway and Navigation Company for the construction of a ship by said Roach, in consideration of $ 465,000, for said company. In February, 1884, the ship was tendered by Roach to said company in performance of his contract, and $65,000, the balance remaining unpaid, demanded. In the meantime the said company had assigned its interest in said contract to the plaintiff, who wanted the ship and was ready to take her and to pay the $65,000, but the Navigation Company would not surrender its rights in the ship until it was paid the advances it had made to Roacli oil the ship. The differences between the companies raised no question between the plaintiff and Roach, and these differences were finally arranged; and it was agreed between the companies that Roach should accept the §65,000 from the plaintiff and that he should deliver to Artemas H, Holmes two bills of sale of the ship, that were duplicates, with the exception that one ran to the plaintiff, as vendee, and the other to the Navigation Company, as vendee, and upon such delivery said Holmes should give Roach a receipt which had been agreed upon, and read as follows: “ The final payments in full for the SS. Santa Rosa having been paid to John Roach, I acknowledge to have received this day from said John Roach two separate bills of sale of said steamship, one to the Oregon Improvement Co., and the other to the Oregon Railway and Navigation Company, in escrow, one tobe delivered to whichever company shall be entitled to receive the same, and the other, upon the cancellation thereof, tobe re-delivered to said John Roach; the bill of sale to said Improvement Company not to be delivered except upon the acquittal of John Roach & Son by the Oregon Railway & Navigation Company, for full performance by them of the contract with the last-named Company for the building of said ship, (Signed.) Artemas H. Holmes.”
    This arrangement between the parties was effected and the. papers executed ; but before their delivery and the payment of the $65,000, plaintiff’s representative, in the presence of Mr. Weed, Roach’s representative, said that they could not pronounce upon the vessel as to its draught and speed conforming wdth the contract. Mr. Weed then said that “ as to the particulars of speed and draught she did conform to the contract,” and thereupon the bills of sale were delivered to Mr. Holmes, and the receipt and the $65,000 paid to Mr. Weed; and afterwards, the companies having arranged their differences, Mr. Holmes delivered the bill of sale to the plaintiff, as vendee, and returned the other bill of sale to Mr. Roach. The plaintiff brings this action to recover damages for the nonfulfilment of the original contract, for construction of the ship, on the part of Roach. Held, that the receipt was in the nature of a contract, and by its terms the bill of sale to the plaintiff was not to be delivered except upon the acquittal of Roach by the Navigation Company for full performance of the contract for the construction of the ship. These terms were known and agreed to by the plaintiff, and having under the circumstances accepted the bill of sale from Mr. Holmes, the plaintiff is estopped by its conduct and action in the premises from claiming in this action that Roach has not fully performed his contract for construction with the Navigation Company.
    Before Truax and Dhgro, JJ.

      Decided June 28, 1889.
    Appeal from judgment dismissing the complaint.

      Hobnes & Adams, attorneys, and George H. Adams, of counsel for appellant,

      Edward Gebhard, and D&ioitt C. Brown, attorneys and of counsel for respondents.
   By the Court.—Dugro, J.

This is an appeal from a judgment dismissing the complaint in this action on the merits. I will speak of the plaintiff as the Improvement Company and of the Oregon Railway and Navigation Company as the Navigation Company.

The complaint, alleging a contract between plaintiff and defendants’ testator John B. Roach, who was doing business under the name of John B. Roach & Son, seeks in part a recovery thereon for breach of warranty; the answer contains a denial that John B. Roach ever entered into any contract with the plaintiff as set forth in the complaint. As there was no evidence in support of the plaintiff’s contention on this issue, there was, as to this branch of the case, no error in dismissing the complaint.

The complaint further alleges, substantially, that Roach failed to perform on his part a certain contract in writing for the building of a ship, duly made and executed by and between him and the Navigation Company; that on February 21,1884, the plaintiff duly performed the Navigation Company’s part of the contract; that the Navigation Company on said day assigned to the plaintiff all rights and interests, acquired or possessed by it by reason of this contract, and that the alleged non-performance on the part of Roach damaged the plaintiff $100,000. I will assume these allegations to constitute the cause of action relied upon by the plaintiff. The defendants admit the contract with the Navigation Company, and, among other things, allege that it has been duly performed.

It seems that about February, 1883, a contract in writing was made between John B. Roach and the Navigation Company, for the building of a ship in consideration of $465,000. About February 21,1884, the ship was tendered by Mr. Weed, the representative of Roach, in performance of the contract, and $65,000, the balance unpaid on the contract, was demanded.

The facts which occurred at the time of the tender of the vessel, when the representatives of Roach and both companies were present, seem vital to the case. It appears that at this time $65,000 was due as a balance on the purchase money of the ship (the Navigation Company having paid $400,000 on account); that there were accounts to be settled and difficulties between the two companies in regard to thé ship ; that the Improvement Company wanted the vessel and was ready to pay the $65,000 balance, and that the Navigation Company, in the language of Mr. Holmes, “ would not surrender their rights to the ship unless they were paid by the Improvement Company for the advances which the Navigation Company had made to Roach on account of the former payments, and the Improvement Company was not able to pay at that time, until they finally accommodated their differences, the amounts which the Improvement Company so owed the Navigation Company. But as to these mutual accounts there was no question between Roach and the Improvement Company. The delay was caused solely by the difficulties between the two companies, Mr. Roach being ready and waiting to receive his money. For this reason, so far as Roach was concerned, there were two bills of sale given and the escrow made.”

As it was undetermined to whom the bill of sale should be delivered by Roach, in order to arrange the matter, it seems that it was agreed that Roach should accept the $65,000 from the Improvement Company, and that he should deliver to Mr. Holmes two bills of sale, duplicates, with the exception that one ran to.the Navigation Company as vendee, and the other to the Improvement Company as vendee, and that upon such delivery Mr. Holmes should give to Roach a receipt, “ the substance of which had been agreed upon,” and.which was as follows : “ The final payments, in full for the SS. Santa Rosa having been paid to John Roach, I acknowledge to have received-this day from said John Roach two separate bills of sale of said steamship, one to the Oregon Improvement Company and the other to the Oregon Railway and Navigation Company in escrow, one to be delivered to whichever company shall be entitled to receive the same ; and the other, upon the cancellation thereof, to-be re-delivered to said John Roach, the bill of sale to said Improvement Company not to be delivered except upon the acquittal of John Roach & Son by the Oregon Railway and Navigation Company for full performance by them of the contract with the last-named company for the building of the said ship.

(Signed) Artemas H. Holmes.” Prior to the delivery of the papers and the payment of the $65,000, the plaintiffs’ representatives stated in the presence of Roach’s representative, Weed, that they could not pronounce upon the vessel as to its draught and speed conforming with the contract. Mr. Weed then said that “ as to particulars of speed and draught she did conform to the contract,” and thereupon the bills of sale were delivered to Mr. Holmes and the receipt and a check for the $65,000 were passed to Mr. Weed. Some few months later the two companies having arranged their difficulties, Mr. Holmes delivered the bill of sale to the Improvement Company and returned to Roach the other bill of sale.

The receipt above referred to seems to me to be in the nature of a contract. From its terms it seems that the bill of sale to the Improvement Company was not to be delivered except upon the acquittal of Roach by the Navigation Company for full performance of the contract for the building of the ship. These terms were known to the plaintiff, and having under the circumstances accepted the bill of sale from Mr. Holmes, it is estopped by its conduct from claiming in this action that Roach has not fully performed his contract with the Navigation Company. If that contract be fully performed, no claim against the defendant could - pass by the alleged assignment by the Navigation Company to the Improvement Company.

It is claimed that the intention of the parties in making the provision as to acquittal in the receipt, was that Roach should only be acquitted by the Navigation Company of his duty to deliver the vessel to it, and that the acquittal was an acquittal as to delivery only; this may have been the intention, but the words of the receipt do not so express it, and these words must prevail as showing the intention of the parties.

The plaintiff contends that Weed’s statement as to the vessel’s draught induced the acceptance, that, as the statement was false, a warranty survived the delivery of the vessel, and that the present action is brought upon this warranty.

I agree with the plaintiff that a false representation at delivery under an executory contract of sale may cause a warranty to survive an acceptance, but it must be remembered that it was not shown that there was a sale of the vessel by Roach to the plaintiff. The sale of the vessel was to the Navigation Company. Whatever rights the Improvement Company had in the vessel were, under the evidence in the case, obtained by assignment from the Navigation Company. Weed’s representation that the vessel conformed with the contract, as to draught, may have been such a false representation as would render Roach liable in an action for damages for false representation, but this action is not for the tort.

At the trial the defendant moved for a nonsuit, and, his motion was granted ; the complaint was not dismissed on the merits; the judgment should, therefore, be modified by striking out the words “ on the merits ” where they appear therein, and, as so modified, should be affirmed with costs.

Truax, J., concurred.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    JOSHUA KUH, Appellant, v. CLARENCE BARNETT, sued as John Barnett, Impleaded, Respondent.

      Verification of complaint and affidavit, when insufficient to warrant a provisional remedy—A verification before plaintiff’s attorney not good.

      \

    Where the verification by the plaintiff’s attorney to a complaint containing many material allegations which it is apparent must have been made on information and belief (although not specifically stated in the complaint to be so made), sets forth as the only ground of the belief and the only source of the information of the affiant, “plaintiff’s statements to him ” will not, without further proof of the allegations of the complaint, furnish ground for granting a provisional remedy.
    An affidavit sworn to before the plaintiff’s attorney (he being a notary public) cannot be received as proof of the matters therein contained.
    It, therefore, cannot be used to obtain a provisional remedy, and will not constitute such further proof. »
    Before Freedman and Truax, JJ.

      Decided August 19, 1889.
    This is an appeal from an order made at special term vacating a preliminary injunction which had been granted at special term. The facts sufficiently appear in the opinion.

      Albert Jaretzhi, attorney and of counsel, for appellant, argued as bearing on the points decided:
    This appeal raises one single question of law— has- plaintiff any property right or interest in the figures 596 ? The defendant has not interposed any answer to plaintiff’s affidavits, so that there is no contention as to the facts.

      William G. Oppenheim, attorney and of counsel, for respondent, on the points decided, argued:—
    The. moving papers are not sufficient to sustain an injunction. The complaint is verified by the plaintiff’s attorney, who states that the sources of deponent’s information are plaintiff’s statements made to him, and is therefore only on information and belief, and the injunction, if sustained, must be on this statement, which is not even as strong as the ordinary information and belief. An injunction is not allowed on statements made on information and belief. An unsupported affidavit resting entirely on information and belief, is, in general, insufficient to authorize the issuing of an injunction. Woodruff v. Foster, 17 Barb. 224; Roome v. Webb, 1 Code Rep. 114; Campbell v. Morrison, 7 Paige, 157; Marvin v. Gross, 65 N. Y. 581. The affidavit made by one David Kuh is verified before the plaintiff’s attorney, and hence cannot be read either on granting or contiryiing the injunction and must be struck out of the case. Taylor v. Hatch, 12 Johns. 540; Bliss v. Molton, 58 Hun, 112; Van Vorst, J.
   By the Court.—Truax, J.

The plaintiff obtained a preliminary injunction upon the complaint and certain affidavits.

It was alleged in the complaint that the plaintiff was engaged in the business of selling men’s and boys’ clothing and furnishings at 596 Broadway, in the city of New York ; that he had hired the said premises at a large expense, and had stocked them with a large stock of merchandise, and that he had advertised at a considerable cost and expense his said place of business in certain of the daily newspapers of the city of New York ; that he had caused to be displayed upon said premises large and prominent signs calling the attention of the public to the character of the business conducted by him, and to the number of plaintiff’s place- of business ; that he had used no name, sign or designation in connection with said business or place of business, except the number of the premises, to wit: the number 596 ; that said number had become generally known to the public as designating the place where plaintiff’s merchandise was sold ; that the said number had become a valuable property and trade-mark ; that the defendants are engaged in and are conducting a business, similar to that of the plaintiff, at No. 532 Broadway, in said city, within a short distance of plaintiff’s above-mentioned premises ; that the defendants have no name upon their said place of business ; that prior to the time that plaintiff commenced business, as aforesaid, the defendants had displayed in front of their place of business the number 532 ; that after plaintiff had advertised his business as aforesaid, the defendants, with the intent to take advantage of plaintiff’s advertising, and , with the further intent of deceiving and defrauding the public, removed their number 532 from its position, and exhibited and displayed, and have ever since exhibited and displayed, the number 596—the said number being in large, white letters—on a signboard painted red in exact imitation, design, color- ■ ing, and size, of the sign-board displayed in front of plaintiff’s said premises.

The complaint was verified by the attorney for the plaintiff.

These allegations were, in substance, repeated in the two affidavits, on which, with thecomplaint, the preliminary injunction was granted; one of these affidavits was made by the attorney for the plaintiff, the other was made by “ the agent of the plaintiff,” but was verified before the attorney for the plaintiff.

It was stated in the verification of the complaint “ that the source of deponent’s information is plaintiff’s statements to him.” It is apparent on reading the complaint and the affidavit of plaintiffs attorney that many of the allegations contained in them were made, and, from the nature of the case, must have been made, on information and belief. The grounds of the belief and the source of the information are plaintiff’s statements.” This court has held that a provisional remedy should not be granted on affidavits that are made on information and belief. Martin v. Gross, 22 N. Y. State Rep. 439 ; also see 19 Ib. 56, 879.

It may be that we can infer that the agent of the plaintiff has sufficient knowledge to enable him to make an affidavit; but his affidavit could not be used to sustain the preliminary injunction, because it was sworn to before the attorney for the plaintiff. The rule not to allow an affidavit taken before the attorney in the action to be read, is an old rule of the King’s Bench (See Tidd’s K. B. Pr. 451) that has often been followed in this state. Taylor v. Hatch, 12 Johns. 340 ; In re Cross, 2 Chan. Suit. 3 ; Anon, 4 How. 290 ; Bliss v. Molter, 58 How. 112 ; Murray v. Heffernan, 2 Law Bull. 67.

We think the rule a good one. The order appealed from is affirmed, with costs.

Freedman, J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    AARON B. COHU, as Executor, etc., Appellant, v. JOSEPH HUSSON, Respondent.
    Payment, evidence of when inadmissible—Exchange notes not accommodation notes.

    When the issue is as to whether a note was an accommodation note, made without consideration and of no legal inception, evidence of payment is inadmissible.
    Exchange notes are not accommodation notes, each constitutes a consideration for the other, and each has a legal inception for a valuable consideration.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided August 19, 1889.
    Appeal by plaintiff from judgment dismissing the complaint upon the merits, upon a direction of the court at trial term, that the jury find a verdict for defendant.
    This action is brought on a promissory note made by Joseph Husson, the defendant, dated December 11, 1878, for $750, and payable to the order of Henry S: Cohu five months after date.
    By transfers made subsequent to the maturity of the note, the title to it became vested in Joseph S. Cohu, and he having died, Aaron B. Cohu, as executor of his will, was substituted as plaintiff.
    The answer set up, byway of counterclaim and set off, a promissory note made by Henry S. Cohu, dated June 1, 1878, for $1,000, payable to the order of Joseph Husson (the defendant) six months after date.
    The reply denied that the note set forth in the counterclaim had any legal inception, and alleged that it was one of a series of notes given to the defendant without consideration and purely for the purpose of accommodating defendant.

      Plaintiff read in evidence the note sued on, proved his title thereto and rested. Defendant then read in evidence the note set forth in the counterclaim, also a note made by defendant to Henry S. Cohu, bearing even date with the note set forth in the counterclaim, for a like sum and payable at the expiration of a like period, and proved that defendant • had paid it, and rested.
    The plaintiff then read in evidence a note made by Henry S. Cohu, dated December 11, 1878, for $750, payable to the order of defendant four months after date, and offered in evidence three notes made by defendant to Henry S. Cohu, one dated November 12, 1877, for $1,000 at three months, one dated June 17, 1878, for $400, at four months, and one dated November 14, 1878, for $1,000, at six months, all of which were excluded. He then offered to prove that defendant had promised to pay the last above three notes, and that he had subsequently settled with regard to them ; also, that he never claimed any indebtedness in his favor from Henry 8. Cohu or his estate ; also, that he never proved any claim against the estate of Henry 8. Cohuall of which was excluded. Plaintiff also offered in evidence two notes made by Henry S. Cohu to the defendant, and dated December 11, 1878, for $750, at five months, the other dated February 21, 1879, for $700, at four •months, also a note by defendant to Henry S. Cohu, dated February 15,1878, for $500, at four months, all of which were excluded. Plaintiff then offered to show that defendant had acknowledged his indebtedness upon the notes sued on, and promised to pay it, which was excluded. Plaintiff then offered in evidence two judgment rolls, one .of a judgment recovered in the city court by Joseph Cohu and others, as administrators, against this defendant, upon a note for $700, dated February 21,1879, made by this defendant to Henry S. Cohu; the other of a judgment recovered in the court of common pleas by Joseph S. Cohu and others, as adminstrators, against this defendant, upon a note made by this defendant to Henry S. Cohu, for $750, dated December 11, 1878, payable five months after date, both of which were excluded. Exceptions to these various exclusions were duly taken. Plaintiff proved that Henry S. Cohu and the defendant were in the habit of exchanging notes.
    Plaintiff moved that he be allowed to go to the jury on the question as to whether the notes set forth in the answer was given for the accommodation of. defendant or otherwise. The motion was denied and an exception taken.
    The court directed a verdict for defendant, and plaintiff excepted.
    Judgment was entered on this direction whereby it was “ ordered, adjudged and determined, that plaintiff take nothing by his claim, but that his 'complaint be, and the same is, hereby dismissed on the merits thereof; and further ordered and adjudged, that the defendant, Joseph Husson, do recover from the plaintiff, as executor of the last will and testament of Joseph S. Cohu, deceased, the sum of $111.85, costs of this action, and have execution therefor.”
    From this judgment plaintiff appeals.

      Abram Kling, attorney and of counsel, for appellant, argued.
    I. It has been determined that a party is entitled to show a state of facts inconsistent with the indebtedness claimed by the defendant, and the improbability that the note represented an actual bona fide claim against the plaintiff. Cohu v. Husson, 13 Daly, 334 ; Sawyer v. Warner, 15 Barb. 285 ; Nicholls v. Von Valkenberg, 15 Hun. 230 ; Bean v. Tonnelle, 94 N. Y., 381. Under these authorities the fact that Joseph Husson continued to remain the debtor of Henry S. Cohu for large sums of money, both before and after the giving of the note set forth in the answer as a counterclaim, coupled with the exchange of notes, which was shown by the proof, made it a question of fact for the jury as to whether from these circumstance's there was a bona fide indebtedness against the estate of Henry S. Cohu; and which the court should have allowed the jury to determine.
    II. The plaintiff established that Joseph Husson was the debtor of Henry S. Cohu at the time the alleged note set forth in the counterclaim was given and subsequent thereto, and which is a state of facts inconsistent with a valid obligation against the plaintiff’s intestate ; and the execution of the note dated Nov. 14, 1878, for $1,000, made after the note set forth in the counterclaim was delivered, was evidence that Husson was the debtor of Henry S. Cohu at' the time he sought to recover on said note set forth in his answer. Lake v. Tyson, 6 N. Y. 461 ; Duchess v. Porter, 63 Barb. 15 ; DeFreest v. Bloomingdale, 5 Den. 304; Sherman v. McIntyre, 7 Hun, 592; Treadwell v. Abrams, 15 How. 219; Fairchild v. Dennison, 4 Watts, 258. As the note which the court refused to allow in evidence was dated November 14, 1878, for $1,000, which was after the note set forth in the answer as a counterclaim, it was presumptive evidence that Henry S. Cohu was not, on the 14th day of November, 1878, the- debtor of Joseph Husson.
    III. The court erred in its rulings in the exclusion of evidence as follows :
    The plaintiff sought to show that the only indebtedness existing between the plaintiff and the defendant was upon the note set forth in the complaint, and that Joseph Husson never at any time made any claim of any indebtedness upon the note set forth in his answer as a counterclaim. Plaintiff further offered to show that the defendant admitted his indebtedness upon the note mentioned in the complaint; and all of which the court excluded. In Stimson v. Vroman, 99 N. Y. 75, the court held that the silence of a party as to whether he had a claim when a demand was made upon him was admissible as a circumstance for the consideration of the jury.
    In Bean v. Tonnelle, 94 N. Y. 381, the court held that the fact that a party makes no claim for an indebtedness which he seeks to recover during any period of time in which he claims to be the holder thereof, is a circumstance showing that the demand has been satisfied. Under these circumstances, if Mr. Husson made no claim against the estate of Henry S. Cohn upon the note on which he now seeks to recover,, and never claimed a set-off when the indebtedness which he admits to be due was being pressed, it was properly admissible in connection with the other evidence for the consideration of the jury, and its exclusion was error.

      Edward P. Wilder, attorney and of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The principal question of the appeal relates to a defence by way of counterclaim, and whether, on the whole evidence, it was incontrovertibly sustained.

The defence was, what in its nature is set-off, and this under the Code is pleaded as a counter-claim. The set-off as claimed, by the answer, was that one Henry S. Cohn had delivered to defendant, for valuable consideration, his promissory note for $1,000, but had neglected to pay it. This defence was to be sustained if it was proved, and unless the defence of the reply was sustained on the part of the plaintiff. The reply was. that the note in the answer did not have a legal inception, and that the note was one of a series of notes given to the defendant without consideration and purely for the purpose of accommodating defendant.

The defendant produced the note specified in his answer, and proved it was made by Henry S. Cohu.

The law attached to this a presumption that it had been given for valuable consideration, and the defendant unnecessarily made specific the consideration on which he relied to sustain the note, by proving that the defendant had made his note to Henry S. Cohu of the same date and amount as the note of the answer.

On the pleadings, the only defence open to the plaintiff was want of consideration. There was no defence of payment or of anything equivalent. He produced, and offered to give as testimony, earlier ■ notes made by Henry S. Cohu to the order of the defendant; which, after being delivered to the defendant had matured and been paid by Henry S. Cohu. These were properly rejected, because, ' without other evidence the presumption would be, that they represented debts due by Cohu, the maker, to Husson, the defendant. There was offered by the plaintiff no other evidence on this subject, excepting it was proved by one of their witnesses that Cohu and Husson, the defendant, were in the habit of exchanging notes. These notes, and among them those that the court did not permit to go in evidence, if they were a part, were not accommodation notes, and they had an inception for valuable consideration, that is, the notes given in exchange were reciprocal considerations, as a promise for a promise is a mutual consideration. At the most the various notes, on the one part, would furnish grounds of actions against those who made them, but would not tend to show that a subsequently exchanged note was without consideration.

There was no evidence offered on the trial which, if believed by the jury, would justifying it in be- . lieving that there was no consideration for the note set up in the answer.

The judgment must be affirmed, with costs.

Freedman J,, concurred.


author: By the Court.—Truax, J. Freedman, J. (concurring).

text:
    WILLIAM T. MORTIMER, et al., as Executors, etc., Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et. al, Appellants.

      Hutch streets.—Bights of abutting owners on streets laid out in the city of New York while the Hutch were in occupation.—Signs on abutting building, right to unobstructed view of.—Evidence, exception to admission of improper, not sustained when no harm done, a fortiori, when exhibits bearing on the point involved are not in the appeal-book.—Evidence, error in admission cured by charge.

    The fee of the streets laid out in the city of New York while the Dutch were in occupation, never was in the Dutch government. Neither the Dutch nor the Roman law ever prevailed in the state of New York de jure. Therefore, the foundations of the lights of owners of land abutting on a street laid out while the Dutch were in occupation, as against the city and state of New York, rest upon the English common law.
    Even if the fee of the streets laid out while the Dutch were in occupation was in the Dutch government, and the Dutch law governed, yet the authorities of New Netherland recognized the private rights of abutting owners.
    Even if the fee of the streets laid out while the Dutch were in occupation, was in the Dutch government, and that government had a title thereto as' absolute as under the Roman law the title of the government to a military highway was, and such title was acquired by the English government upon the surrender to them by the Dutch, yet the English government could do with it what they pleased ; and as a matter of fact they thereafter so dealt with such streets as to admit of no other conclusion but that they took the title and streets' to be held by them according to their own laws.
    By the English common law an abutting owner on a street, there being no escheat, and nothing in the deed to him or the deeds under which he derives title requiring a different conclusion, owns the fee of the soil to the centre of the street, subject to the right of the public in and to the street for its use as a highway, which right is a mere easement; while if there is anything in the deed to him, or in those under which he derives title, requiring a different conclusion, such as a boundary which carries the gran tor to the street only, still, although he does not take the fee of the soil to the centre of the street, yet, he has an easement in the street as regards light, air and access, and an unobstructed view of signs or of notices of any kind affixed to the buildings giving notice at a distance that wares therein were to be sold.
    Such right to light, air, access and unobstructed view is private property, which cannot be taken or impaired even for a public purpose without compensation, and for the taking or impairment of which, without such compensation, damages are recoverable.
    In an action by an abutting owner for damages by reason of the total deprivation or partial impairment of light, air, access and view of signs and notices affixed to his building, it is immaterial whether he owns the fee to the centre of the street, subject to the use of the public, or whether the fee to the bed of the street is in the city of Hew York, in trust for the purposes of a street, and the owner has only an easement in the street as regards light, air, access, and view, since in either case the measure of damages is the same.
    Where evidence bearing on a certain question of fact is admitted under exception, yet, if the excepting party is not injured, the exception cannot be sustained on appeal, even if the evidence was improperly admitted, a fortiori not, when certain exhibits which were put in evidence and which might of themselves have been a sufficient ground for the ruling, are not contained in the appeal book.
    A charge to the jury to disregard certain evidence will cure an error in its admission, if there was error.
    Before Freedman and Trtjax, JJ.

      Decided August 19, 1889.
    This is an appeal from a judgment, entered on the verdict of a jury, and from an order denying a motion “ to set aside the verdict and grant a new trial on the exceptions taken, because the verdict was for excessive damages, because the verdict was contrary to the evidence, and because the verdict was contrary to law.”
    The action was brought to recover damages for injuries which the plaintiffs allege they have sustained by reason of the construction and operation of the defendant’s road.
    The property is situated at the corner of the Bowery and Division street in the city of New York.
    On the trial evidence was given to the effect that, prior to the erection of the elevated railroad structure, the building on the premises was very prominent in approaching it from different quarters, as much so as any in the city ; that the structure had cut it off entirely from sight, from any point of view ; that the building could not be seen at all; that the building can be reached from the Bowery or Division street or Chatham square or Catherine street or the New Bowery and from other smaller streets ; that it was a prominent object from all those streets ; that after the structure it could not be seen ; that, previous to the elevated railroad, the carpet business carried on in the building was advertised by hanging out carpets from the windows like banners, so that they could be seen at a long distance in almost every direction and attract people ; that the building was on a corner and could be seen a long distance in almost every direction; that the opportunity of hang-: ing of carpets out of the windows was of great value to the building, and made an actual difference in the value of the building, because it attracted attention from afar; that previous to the obstruction of the elevated railroad, people could see these carpets from a long distance, and if they were in need of anything of the sort they would go to the building ; that brought trade to the building ; that opportunity to tenants in the building has been taken away from the building by this road ; that they can still hang their goods out, but they are not seen; that advantage has been destroyed by the road in a great measure; that is one of the things that has made a difference in the rental value of the building.
    The trial judge charged the jury, among other things: “ So that, in substance, you have to recompense this plaintiff for the loss of the light, the air, the means of access, and the means of the exhibition of the building, in its use for signs or for the giving notice of any kind in any way that the wares therein were to be sold, of giving notice of that at a distance. For the evidence in this case is that the structure of this road, as it goes up, hides the building to an extent. Now, for all those things, according to the testimony, “ you must give a compensation so far as those things have lessened the rental value.” To which defendants’ counsel excepted.
    Defendants’ counsel requested the trial judge to charge, among other things : “ The defendants are not liable to plaintiffs for damages occasioned to the premises by interference with or destruction of the facility to exhibit goods, wares, &c., from this building in such manner that they could be seen from a distance, and from other streets.” The judge refused so to charge, and defendants’ counsel excepted.
    The other facts sufficiently appear in the opinion.

      John W. Pirsson, attorney, and John E. Parsons and Jno. Alex. Beall, of counsel, for respondents, on the questions considered in the opinions, argued :
    I. The plaintiffs have a good cause of action, (a.) In the Story case it was held that an elevated railroad is inconsistent with the ordinary and general use of a street as a public street, and that an abutting property owner may maintain an action for damages by reason of the construction and operation of such railroad, although he has no other estate or interest therein than an easement for light, air and access. 90 N. Y. 122 ; Re-affirmed Lahr v. Met. E. R. Co., 104 N. Y. 268. The public streets or highways of a city are held by it in trust for the use of a street, and such an easement or right is property which may not be taken without compensation. 90
      N. Y. 156 to 161, 170 to 177 ; Glover v. New York Elevated Railroad Company, 66 How. 77 ; Ireland v. The Metropolitan Elevated Railway Company, 52 N. Y. Super. Ct. 455 ; Abendroth v. M. R’way Co., 54 Ib. 47 ; Lahr v. M. E. R’way Co., supra, (b.) Under the decisions of the courts of this state, the Elevated Railroad Company is liable for all the damages allowed here, even when the fee title is not in the abutter. He has an easement in the use of the city street, and this cannot be taken without compensation. Story v. R. R. Co., supra ; Lahr v. Same, supra; Drucker v. M. E. R’way Co., 106 N. Y. 157 ; Mortimer v. Same.
    II. The plaintiffs’ rights to the use and enjoyment of the Bowery as a public street is in no way affected by the question whether that street was originally laid out by the Dutch or English. The right of discovery was in the English, and the civil law never prevailed in this state de jure, but only for a time, de facto. Martin v. Waddell, 16 Peters, 367 ; Commissioners v. People, 5 Wend. 445 ; Appraisers v. People, 17 Ib. 571. Even if the Bowery, as at present existing, was a Dutch road—the right of the abutting owners to their lands so • used and taken was not divested; the Dutch law never obtained de jure but only defacto during their occupation—and the common law of England evicted for a time by force, reentered with the English arms, and controlled the rights and estates of the people, and, except as modified by statute, continues to do so to this day. Again, if we concede all that is claimed for the effect of the laying out of a Dutch road by the appellants, we have established our right as abutting owners to the unimpaired enjoyment of-the street for all the purposes of a street. In 1838 the property was assessed for paving the Bowery, and such assessment was paid (see Appendix, pp. 99 to 102, and fols. 250 and 251). Abendroth v. R. R. Co., supra. The case of Lahr 104, N. Y. supra, seems, however, to render much of this argument unnecessary, and disposes of the question.
    III. The construction and operation of the railroad upon the Bowery in front of and adjacent to the property, without the consent of the testator, or making compensation therefor, was a trespass, and the defendants are liable for all the damages sustained by a testator by reason thereof, and are not protected by legislative or municipal license. Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Wager v. Troy Union R. R. Co., 25 Ib. 526; Henderson v. N. Y. Cent. R. R. Co., 78 Ib. 423; Craig v. Rochester & B. R. R. Co., 39 Ib. 404; Mahady v. B’klyn R. R. Co., 91 Ib. 148; Cogswell v. N. Y. Cent. R. R. Co., 103 Ib. 10; Mortimer v.. Met. E. R. Co. The damages may embrace all of the natural and proximate effects which ensue. 3 Sutherland on Damages, 364; Damron v. Roach, 4 Hump. 194; Sherman v. M. L. S. & W. R. R. Co., 40 Wisc. 645; Balto., &c., R. R. v. Baptist Ch., 108 U. S. 317 ; Lahr v. Manhattan R’way Co., supra. As already shown, the damages allowed are strictly within the rule as declared by the courts of this state.
    IV. The rule as to the measure of damages was correctly laid down by the trial judge. Drucker v. The Manhattan Railway Co., 106 N. Y. 157; Mortimer v. Metropolitan Elevated Railway Co. That the proper measure of damages is loss of rental value is held by the cases just cited; and to the same effect are Jutte v. Hughes, 67 N. Y. 267; Francis v. Schulhoff, 53 Ib. 152 ; 3 Sutherland on Damages, 369; Blesch v. Chicago, &c., R. R. Co., 43 Wisc. 183. There would seem to be no longer any question that deprivation of or interference with light, and the construction and mainteance of the structure in the near proximity of the premises, were proper elements of damage to be considered. Lahr. v. M. R. Co., supra; Drucker v. M. R. Co., supra; Mortimer v. Met. Elevated Railway Co., supra.

      Y. The defendants’ exceptions to the admission of evidence were not well taken. The decision of this court in Mortimer v. Metropolitan Railway Co., recently affirmed by the court of appeals, directly disposes of many of them. The evidence of the assessment for paving and its payment were properly admitted. Abendroth v. M. Railway Co., 54 N. Y. Sup. Ct. 47. The remaining objections are all to the testimony as to the history, location and dimensions of the Bowery. The defendants attempted to show from maps, histories and documents that the present Bowery is identical with a road which is claimed to have existed during the Dutch occupation. The testimony objected to was in rebuttal of that offered by the defendants and of historical facts relating to boundaries, as to which reputation or tradition is, from necessity, admissible, and the tradition testified to existed ante litem motem. Wood’s Trial Evidence, 262 and 3. There can heno question that the witness was in a situation to acquire and possess the information. Ib. pp. 310 and 311; Boardman v. Reed, 6 Peters, 328. It is submitted that the evidence was properly admitted.

      Davies & Rapadlo, attorneys, and Edward S. Rapadlo and Brainard Tolies, of counsel for appellants, on the questions considered in the opinions, argued:
    I.—Prior to 1664 the land included in the Bowery was owned absolutely in fee by the Dutch government of this island. All the title of the Dutch government to the said land subsequently became vested in the king of England, and was by him granted to 'the Duke of York. By the Dongan charter of 1686 the said land was granted to the mayor, aldermen and commonalty of the city of New York in trust for the public use. No power has ever been granted to the mayor, aldermen and commonalty of the city of New York to encumber the said land by subjecting the same to private servitudes inconsistent with and hostile to the devotion of-the said land to the public use. ' Ground brief from the Dutch Governor Kieft to Cornelius Classen, dated the 13th day of December, 1645; Hoffman's Estate and Rights of the Corporation, Vol. II. Valentine's History of New York ; Hoffman's Treatise; United States v. Perot, 8 Otto, 428; Documents Relating to the Colonial History of the state of New York, Holland Documents, Vol. I. pages 140, 259, 262, 258, 329; Holland Documents, Vol. I. pages 101, 102, 103, 104, 124, 214, 372, 384, 387, 399; 470, 471; Valentine's Manual for 1860, page 599; Mrs. Lamb's History of New York. Vol. I. pages 144 and 146, Mass. Hist. Col. Vol. IX. page 277; Valentine's Manual for 1850, pages 489, 499, 541 to 547, 558, 559 and 603; Valentine's Manual for 1854, pages 559 and 569; Mrs. Lamb's History of New York, Vol. I. pages 64 and 126; Holland Documents, Vol. I. pages 350, 58, 71, 83, 91, 349, 250, 351, 613, 528; Collection, of N. Y. Historical Society, Vol. I. pages 339 and 473; Hoffman's Treatise, Vol. I. pages 97, 92, 93, 94, 305, 330 to 333, 311, 19, 20; Historical Views of the Constitution of New York, by B, F. Butler, page 31; and the usual form of confirmation of a Dutch Ground Brief, illustrated by Defendants’ Exhibit No. 4; Johnson v. McIntosh, 8 Wheaton, 595; Martin v. Waddel, 16 Peters, 367; Ogden v. Lee, 6 Hill, 546; Wadsworth v. The Buffalo Hydraulic Co., 15 Barb. 83; Brodhead's History of New York, Vol. I. pages 215 and 216; Coll, of N. Y. Hist. Soc. (N. S.), Vol. II. page 373; Dunham v. Williams, 37 N. Y. 251; Brief of Mr. O’Connor in Westmore v. Story, 22 Barb. 439; Digest, Lib. 43, Tit. 8, Law 2, Sec. 21; Institute's (Saunder’s ed. of 1876), p. 36; Tompkins and Jenkins' Roman Laws (ed. of 1870), p. 5; Ames' Civil Law of Rome (ed. of' 1883), pages 124-5; McKenzie's Roman Law
      (ed. of 1880), p. 156; Hunter’s Introduction to Roman Law (ed. of 1885), p. 58; Taylor’s Elements of Civil Law, p. 463; Van Lewen’s Roman Dutch Law (Chief Justice Kotze’s Edition of 1881), Book I. chap. 1, sec. 12 ; Grotius’ Dutch Jurisprudence (Maasdorfs’ edition of 1878), p. 226; Domet’s Civil Law (Cushing’s edition of 1850). Vol. I. p. 150, Art. 116; Kent’s Commentaries, Vol. III. p. 433; Savigny on Possession (Perry’s edition), p. 85; Frederician Code, Vol. I. p. 401, sec. 405; Campbell’s Roman Civil Law (edition of 1878), p. 33; Mitchell v. Bass, 33 Tex. 265; Renthorp v. Borg, 4 Martin, 97; Xiques v. Bujac, 7 La. Ann. 505; De Armas v. Mayor, &c., of New Orleans, 5 La. 85; Hatch v. Arnault, 3 La. Ann. 482; Documents relating to the Colonial History of the state of New York, Vol. II. pp. 250, 548; Dumont’s Corps Diplomatique, Vol. 7, pp. 44, 253; Special and Local Laws affecting N. Y. City ; Bliss, Olney and Whitney’s Compendium; Carter v. N. Y. Elevated R. R. Co., 14 N. Y. St. Rep. 859, (per Truax, J.); Stevens v. N. Y. Elevated R. R. Co., (January, 1889, per Freedman, J.); Havemeyer v. N. Y. Elevated R. R. Co., (March. 1889, per Sedgwick, Ch. J.); Abendroth v. N. Y. Elevated R. R. Co., 52 N. Y. Super. Ct. 274 (per Ingraham, J.); Van Schaack’s Laws of New York, Vol. I. pp. 2, 3; The Montgomerie Charter of 1730 (Special and Local Laws affecting New York City, Bliss, Olney and Whitney’s Compendium, pp. 50, 51; The Colonial Statute of 1732, ratifying the Dongan and Montgomerie charters (Van Schaack’s Laws of New York, pp. 169, 170); The Constitution of 1777; The Act of March 7th, 1793 (3 Greenleaf s Laws of New York, p. 54; Williams v. N. Y. Central R. R. Co., 16 N. Y. 107.
    II. The trust upon which the Bowery is held forbids its subjection to any private servitude. It has always been conceded that the elevated railroad was a public use. The acts authorizing the condemnation of private property by an Elevated R. R. Co. would be unconstitutional were it not a public use. The owner of private easements was allowed a recovery in the Story and other cases because the railroad, although a public use, was not a street use. As the property owner had a private individual right to have the street used as streets ought to be used, he had a right to recover for interference with light, air and access due to the non-street use by the railroad. But, here, under the Dongan charter, the trust is fulfilled, not broken, by the use of the land for an elevated road, i.e., a public use. This necessarily implies that the city has no power to devote these lands to private purposes. The city cannot convey to a private person its title in lands held in trust for the public use. Dillon on Municipal Corporations, § 575; Still v. Lansingburgh, 16 Barb. 107; Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234; Kings Co. Fire Ins. Co. v. Stevens, 101 Ib. 416. It follows that, as the city cannot convey an estate in fee simple, neither can it convey any lesser estate or interest. It has no power to encumber the land with a private servitude, except by express legislative authority. Burbank v. Fay, 65 N. Y. 65; Wheeler v. Clark, 58 Ib. 270.
    III. The general laws as to assessments for street improvements did not empower the city to encumber the Bowery with private servitudes. It may be conceded that the Legislature has the absolute power to control any purely public trust. It has the power to extinguish it altogether, and it may unquestionably so far discharge the trust as is necessary for the imposition of a private incumbrance of any kind. Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234. It may very well be that the payment of assessments for the improvement of certain classes of streets to the city gives rise to a corresponding easement, where the city has power to create such an easement. It was so decided by this court in Abendroth v. The N. Y. Elevated R. R. Co., 54 N. Y. Super Ct., 417, where it appeared that the city was the owner of the land in the street, and it did not appear that the city was under any disability to create an easement. This court held that the grant of an easement would be implied. But would that effect of the act extend to a distinct and separate class of streets,'the subjection of which to private servitudes is forbidden by the city’s charter ? The principle generatia specialibus non derogant would seem to apply; and as instances of the application of that rule to cases somewhat similar to this, we cite : Williams v. Pritchard, 4 T. R. 2; Cumru Township v. Poor Directors, 112 Pa. St. 264; Matter of Egypt Street, 2 Grant, 455; Blaine v. Bailey, 25 Ind. 165; Rounds v. Wymart, 81 Pa. St. 395. There being no express provision in the act that lands exclusively devoted to the public use might be burdened with private servitudes the presumption is against, giving the act that effect. Water Commissioners v. Hudson, 13 N. J. Eq. 420; Academy of Fine Arts v. Philadelphia, 22 Pa. St. 493; Jones v. Tatham, 20 Ib. 398; Bennett v. McWhorter, 2 W. Va. 441; Erie Ry. Co. v. Commonwealth, 66 Pa. St. 84; State v. R. R. Co., 35 N. J. L. 328. It is no answer to say that, if the city does not own the land, the abutting owner does, and that as the improvements are on his own land, the benefit is already secured to him. It does not follow that he owns the land. Generally, he does, but sometimes he does not. Fearing v. Irwin, 4 Daly, 385; 55 N. Y. 486. The escape from difficulties lies in the recognition of the principle laid down by his Honor Judge Freedman in Astor v. The Mayor, 37 N. Y. Super. Ct. 539, that local assessments are an exercise of the taxing power of the state, and that no obligation to make compensation therefor exists, except in the proper -application of the tax. See also People v. Mayor of Brooklyn, 4 N. Y. 423; Matter of Trustees, &c., 31 N. Y. 574; Howell v. Buffalo, 37 Ib. 267; Litchfield v. Vernon, 41 Ib. 123; Allen v. Drew, 44 Vt. 187; R. R. Co. v. Connelly, 10 Ohio N. S. 159; White v. People, 94 Ill. 64; Warren v. Henly, 31 Ib. 40. A consideration, therefore, both of the decision in the Abendroth case and of the authorities there referred to leads to the conclusion that no constitutional necessity exists for so interpreting the acts relative to local assessments as to authorize the city to subject the Bowery to other than public uses. The ordinary principles of statutory interpretation exclude such a construction, and the conclusion is inevitable that plaintiffs’ testator had no private right or property in the Bowery.
    IV. No easement of light or air over a public street arises from the payment of an assessment for paving. The payment of an assessment for the improvement of a street gives rise to no other easement than a right to the use and enjoyment of the improvement to the creation of which the abutting owner has specially contributed. A pavement has nothing to do with light and air. It is laid for the purpose of passage and for no other purpose. A right to use and enjoy the pavement necessarily involves a right to pass over the land on which the pavement is laid, because that is essential to the enjoyment of the pavement.. It does not include a right to light and air because those things are absolutely disconnected from and independent of the enjoyment of the pavement. The learned trial judge, however, charged that plaintiffs’ testator had easements of light and air. As no other evidence tending to show such easements was produced by the plaintiffs than this assessment, it is to be presumed that the learned judge based his charge upon that ground. Implied contracts usually flow from and are measured by some consideration passing between the parties. The law sees the consideration and implies the appropriate promise. The contracts which the law implies are such as in sound reason and good conscience the parties could .not fail to make. That the law should imply an arbitrary, capricious and inequitable contract is impossible. Cary v. Curtis, 3 How. 251, 255; Curtis v. Fiedler, 2 Black, 478. Some light is shed on the subject by the decisions in those states where, owing to constitutional requirements, local assessments assume a quasi-contractual character, and are not, as they are in this state, pure taxes. In those states it is held that the maximum amount of such an assessment is measured by the advantage to be derived from the particular improvement. Tide Water Co. v. Costar, 18 N. J. Eq. 519; Bridgeport v. R. R. Co. 36 Conn. 255; St. John v. East St. Louis. 50 Ill. 92; Yeatman v. Crandall, 11 La Am. 229; Hanscom v. Omaha, 11 Neb. 37, Another consideration arises from the fact that abutting owners are not the only persons who can be assessed for street improvements. Property on side streets may be assessed. Consolidation Act, § 878.
    ■ V. The plaintiffs are not entitled to recover damages for any interference with the advantages formerly possessed by their testator’s building with reference to the exhibition of goods, wares, etc., in such a manner that they could be seen from a distance, and from other streets, (a). No such element of damage was pleaded. As the evidence was relevant to the issues raised by the pleadings, no presumption of the introduction of any irrelevant issue arises from defendants’. failure to object to it. Williams v. Mechanics’ and Traders’ Fire Ins. Co., 54 N. Y. 577 ; Arnold v. Angell, 62 Ib. 512. (6) plaintiffs’ testator had no easement in the Bowery for advertising purposes. The easements of an abutting owner, whether arising from express covenant or from the opening of a street under the Act of 1813, have always been held to be limited to easements of light, air and access. Those words seem to sum up the normal relations between a street and abutting property. Story v. N. Y. Elevated R. R. Co., 90 N. Y. 146 ; Lahr v. Met. Elevated Ry. Co. 104 N. Y 291 ; Pond v. Met. Elevated Ry. Co. (MSS. opinion;) Greene v. N. Y. C. & H. R. R. Co. 65 How., 166 ; Taylor v. The Met. Elevated Ry. Co., 50 N. Y. Super. Ct. 316. From these cases and from countless others in which the rights of abutting owners have been described as easements of light, air and access, it is fair to infer that those rights are the only ones naturally appropriate to the relationship existing between a street and abutting property. The case of Brown v. The N. Y. Elevated R. R. Co., tried before his Honor Judge Ihgraham, at a special term of this court in May, 1885, is a direct authority against any such easement. Another obj ection to this novel easement is that it is not limited to the portion of the street immediately in front of and adjacent to the plaintiff’s premises, but that, on the contrary, it extends to a great distance in all directions. It was held in Kings Co., Fire Ins. Co. 101 N. Y. 417, that the easements of an abutting owner in a street for the opening of which he has been assessed are confined to the particular portion of the street in front of the abutting property. The portions of the street on either side of him may be closed, and he has no cause of complaint. Hanging carpets from the windows “ like banners ” may not have been in violation of any city ordinance, but it was certainly neither a street use nor a public use, and it is difficult to see how the long continuance of such a custom could give rise to vested rights deserving the protection of the law. The advertising advantages of the property consisted principally in the opportunity to do this, and it is to this that the learned judge expressly referred in the portion of the charge excepted to when he said “ in its use for signs or the giving notice of any kind in any way that the wares therein were to- be sold.” Another reason why damage ought not to be recovered for the loss of advertising advantages is, that the damage complained of does not consist in a direct physical effect upon the property itself, but in a remote effect upon the minds of possible customers. It is like the objection to the unsightliness of the structure, the invasion of privacy or the effect upon the general character of the neighborhood. It rests too much upon a metaphysical or sentimental basis to be made a ground for recovery. Greene v. N. Y. Central R. R. Co. 65 How. 169 top. (c.) Plaintiff’s testator had no easement for advertising purposes in distant streets upon which his building did not abut. If plaintiff can claim an easement in all these other streets, there is nothing to prevent his extending his claims all over the city and claiming damages for the erection of every building and for every movement in the growth of the city which tends in the slightest degree to divert trade from the corner of Division street and the Bowery.
    VI. The learned judge erred in admitting evidence of the abatement of rent under the lease made prior to the construction of the elevated railroad, (a.) The testimony was incompetent and irrelevant. It is plain, as a matter of law, that this abatement of rent was purely gratuitous. The decrease in the value of the use of the premises was Mr. Gregg’s loss, and Mr. Gregg had a right of action for it. No necessity and no legal or moral duty upon Mr'. Mortimer to make such an abatement was shown by the evidence. It has been expressly decided by the Court of Appeals that such an abatement made during the continuance of the term, though necessary to prevent the tenant from leaving, gives no cause of action to the landlord. Tobias v. Cohn, 36 N. Y. 363. The immediate and natural effect of this testimony upon the jury, however, was to give them an idea of loss and wrong to plaintiffs’ testator. [b.) The error in the admission of evidence was not cured by the subsequent instruction to the jury to disregard it. The evidence tended directly to arouse the prejudices and enlist the sympathies of the jury upon a matter outside the issues. No amount of correct instruction upon the law applicable to the issues of the case could undo the harmErben v. Lorillard, 19 N. Y. 299 302 ; Traver v. Eighth Avenue R. R. Co. 3 Keyes, 496 ; Anderson v. R. W. & O. R. R. Co., 54 N. Y. 334 ; Arthur v. Griswold, 55 Ib. 408; Tabor v. Van Tassel, 86 Ib. 642 ; Neumann v. Goddard, 48 How. 363 ; O’Sullivan v. Roberts, 7 J. & S. 360 ; Nash v. Kneeland, 4 N. Y. St. Rep. 135 ; Garofalo v. Errico, 7 Ib. 423 ; Lindsay v. The People, 63 N. Y. 154 ; Furst v. Second Ave. R. R. Co., 72 Ib. 546 ; People v. Smith, 104 Ib. 491 ; Macher v. Lamiar Ins. Co. 2 Civ. Pro. Rep. (Browne), 28 ; Clark v. Crandall,. 3 Barb. 612 ; Green v. Hudson R. R. R. Co. 32 Ib. 34 ; Allen v. James, 7 Daly, 13 ; Clark v. Brooks, 2 Ib. 162 ; Wright v. Equitable L. A. Ass’n, 9 J. & S. 1 ; People v. Dimick, 41 Hun, 617.
   By the Court.—Truax, J.

The learned counsel for the appellants contend in this case, as they have often contended in other cases of a like nature, that prior to 1664 the land included in the Bowery was owned absolutely in fee by the Dutch government of this island ; and that, for that reason, abutting property owners had and have no right or interest in the land embraced within the limits of the street on which their premises abut.

I shall show that the Dutch never owned the fee in the street, and that it never was admitted by the English government that they did own the fee in the street.

The civilized powers of Europe claim America by the right of discovery, and it was the international law of the time that the absolute rights of property and dominion to the soil of this country belonged to the European nation by which that particular portion of the country was first discovered. Martin v. Waddell, 16 Peters U. S. Repts. 367; Story on the Constitution, § 1 and 2.

The English always claimed this portion of North America by right of the prior discovery of this country by John and Sebastian Cabot. The elder Cabot, who, at that time, was in the employ of Henry VII. of England, reached the main land before Columbus himself. The English claimed, and began to claim shortly after this time, that the Cabots had visited the whole coast from Florida up to Labrador,vahd had thus acquired for England a title which super-ceded that of Spain.

It is stated in the account of Gilbert’s voyage, which is contained in Hakluyt’s collection of Voyages, which account was written by Mr. Edward Hayes about the year 1583, that “the first discover^ of these coasts (never heard of before) was well begun by John Cabot, the father, and Sebastian his son, an Englishman born, who were the first finders out of all that great tract of land stretching from the Cape of Florida unto those islands which we now call the new-found-land, all which they brought and annexed unto the crown of England.” * * * It is also stated, that, “ not long after Christopher Columbus had discovered the island and continent of the West Indies for Spain, John and Sebastian Cabot made discovery also of the rest from Florida northwards to the behoof of England. Then, seeing the English nation only hath right unto these conntries of America from the Cape of Florida northwards by the privilege of first discovery, unto which Cabot was authorized by regal authority, and set forth by the expense of our late famous King, Henry VII., which right also seemeth strongly defended on our behalf by the powerful hand of Almighty God, notwithstanding the enterprises of other nations, it may greatly encourage us upon so just ground, as is our right, and upon so sacred an intent, as to plant religion (our right and intent being meet foundations for the same) to prosecute effectually the full possession of those so ample and pleasant countries appertaining unto the crown of England.”

The extract from Hakluyt that I have given may be found in Voyages of the Elizabethan Seamen to America, edited by E. J. Payne, printed in London in 1880.

In 1496, on the 5th of March, a patent was issued by Henry VII., licensing John Cabot and his three sons, or either of them, their heirs or assigns, to search for islands, provinces or regions in the eastern, western or northern seas, and as vassals of the King, to occupy the territories that might be found, with an exclusive right to their commerce on paying the King a fifth part of all profits. It was while acting under this license that Cabot is said, to have discovered the continent of North America.

In 1498 Sebastian Cabot sailed westward until he came to what is now Newfoundland. From there, he proceeded to the main land, made several landings, dealt with the natives, and followed the coast southward, probably as far as the Chesapeake Bay. '

Things remained in this state until the latter part of the sixteenth century, when certain concessions were made to Walter Raleigh and others.

In 1606 James I. granted a charter, the first colonial charter, under which the English were planted in America. By that charter the territory from Cape Fear to Halifax, excepting, perhaps, a little spot in Acadia then actually possessed by the French, was set apart to be colonized by two rival companies.

At this time the Dutch had made no voyage to America, except that, in 1597, they trafficked with the West Indies. In fact, it is stated in Wassenan’s Historie van Europa, Amsterdam, 1621, that “ numerous voyages realized so much profit for the adventurers that they discovered other countries which they afterwards settle and plant. Virginia, a country lying in 42£ degrees, is one of these. It was first peopled by the French, afterwards by the English, and is to-day (1624) a flourishing colony. The Lord’s States General observing the great abundance of their people as well as their desire to plant other lands, allowed the West India company to settle that same country.”

Between 1609 and 1622 the Dutch traded with the Indians in this country, and had a trading post on Manhattan Island.

In the year 1620 James I. issued a new patent conferring on the patentees in absolute property with unlimited jurisdiction, the territory from the fortieth to the forty-eighth degree of north latitude, and in length from the Atlantic to the Pacific. “ Without the leave of the Counsel of Plymouth not a ship might sail into a harbor from Newfoundland to the latitude of Philadelphia ; not a skin might be purchased in the interior ; not a fish might be caught on the coast ; not an emigrant might tread the soil.” (Bancroft’s History of America, Chapter 8.)

In 1622 the Dutch took measures looking towards planting a colony here, and in that year the English minister at the Hague demanded that the enterprise of planting a Dutch colony upon the Hudson should be abandoned. This demand or request of' the English Minister was disregarded, but in 1627 Governor Bradford of Plymouth gave notice to Peter Minuet, the then Governor of New Netherlands, that the patent of New England extended to latitude 40, and that the Dutch had no right to plant and trade north of that line. At the very time that the Dutch settled on Manhattan Island, the English had flourishing colonies, one southwards on the James River, the other northwards at Plymouth. “ Colonization on the Hudson,” says Bancroft, in his History of the United States, chapter 15,—“ was neither the motive nor the main object of the' establishment of the Dutch West India countries. The territory was not described either in the charter or at that time in any public Acts of the States General which neither made formal, specific grant nor offered to guarantee the possession of a single foot of land.”

In 1632 the ship in which Governor Minuet embarked for Holland was driven into Plymouth by the weather, and was there detained for a time on the allegation that it had traded without license in a part of the dominions of the king of England interloping between the plantations of Virginia and New England. (Valentine’s History, p. 152.)

In 1663 Governor Stuyvesant went to Boston to complain of the encroachments made by the people of Massachusetts and Connecticut, to remonstrate against such encroachments. In the words of Bancroft from the chapter above cited, “ an embassy to Hartford renewed the language of remonstrance with no better success. Did the Dutch assert their original grant from the States General, it was interpreted as conveying no more than a commercial privilege. Did they plead discovery, purchase from the natives and long possession, it was replied that Connecticut by its charter extended to the Pacific. Where, then, demanded the Dutch negotiators, where is the New Netherland ? and the agents of Connecticut with provoking indifference replied, ‘ we don’t know.’ ”

On the 12th of March, 1664, certain letters patent duly executed were granted by Charles II., king of England to James, Duke of York. These letters patent stated “ for divers good causes and considerations us moving thereunto, and having of our special grace, * * * given and granted, and by these presents, for us, our heirs and successors, do give and grant unto our dearest brother, James, Duke of York, his heirs and assigns, all that part of the main land of New England, beginning at a certain place called or known by the name of St. Croix, next adjoining to New Scotland in America, * * * * And also, all that island or islands commonly called by the several name or names of Matowacks or Long Island, situate, lying and being towards the west of Cape Cod, and the Narrow Higansetts, and abutting upon the mainland, between the two rivers there, called or known by the several names of Connecticut or Hudson rivers. Together also with the said river called Hudson river, and the lands from the west side of Connecticut to the east side of Delaware Bay, * * * * together with all the lands, islands, * * * * to have and to hold, all and singular the said lands, islands, hereditaments and premises, with their, and every of their appurtenances, hereby given and granted, or herein before mentioned, tobe given and granted, unto our dearest brother, James, Duke of York, his heirs and assigns forever ; to be holden of us, our heirs- and successors, as of our manor of East Greenwich, in our county of Kent.”

This grant was confirmed to the Duke of York by a subsequent grant from King Charles II., dated the 29th day of June, 1674, which was made for the purpose of removing doubts which had then arisen as to the validity of the first. It was provided in these grants that the statutes, ordinances, etc., established by the Duke of York, should not be contrary to, but as nearly as might be agreeable to the laws, statutes and government of the realm of England.

Such was the condition of affairs, and such the claims made by the English up to and at the time they took possession of what was then known as New Netherland, The English commissioners in their letter to Governor Stuyvesant demanding possession of Manhattan Island say, that the right of the king of England to the land occupied by the Dutch was unquestionable. In other words .they demanded the country because it belonged to the English and not to the Dutch.

It is stated in chapter 3, section 6, of Harris’s voyages, published at London in 1705, that the colony of New York was English by a double right, namely, the right of discovery and. of conquest. It was, says the writer, undoubtedly part of the country, the coasts of which were first viewed by Sebastian Cabot, and as such made a part of the original provvince of Virginia, and was afterwards within the limits of the country granted by King James to the Western Company, but before it could be settled the famous navigator, Hudson, discovered that river which has since borne his name, and the country adjacent, which he afterwards sold to the Dutch who planted there ; but this was looked upon as illegal because they had not King James’ license, which, it seems, they afterwards obtained.

And Burke states in his account of the European settlement in America, (London 1760) that we, that is, the English, derive our rights in America from the discovery of Sebastian Cabot who first made the northern continent in 1497. The fact is sufficiently certain to establish our rights to our settlements in North America. And so it has been stated by Lossing in his .Encyclopaedia of United States History,—by Roberts in his volume on New York in the “ American Commonwealth ” series ; by Mr. Fernow, the custodian of the Dutch records in the State Library in his article on New Netherland in the Narrative and Critical History of America ; also by Mr. Gerard in his titles to real estate, and by the supreme court of the United States in the case of Martin v. Waddell, 16 Peters, 408, where it is said: the right of the king to make this grant with all of its prerogatives and powers of government, cannot, at this day, be questioned. But in order to enable us to determine the nature and extent of the interest which it conveyed to the duke, it is proper to inquire into the character of the right claimed by the British crown in the country discovered by its subjects on this continent and the principles upon which it was parcelled out and granted,

The English possessions in America were not claimed by the right of conquest, but by the right of discovery, for according to the principles of international law as understood by the then civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any ^particular portion of the country was first discovered!"'

Whatever forbearance may have been sometimes practiced towards the unfortunate aborigines either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe at their pleasure as if it had been found without inhabitants.

The grant to the Duke of York, therefore, was not of lands won by the sword, nor were the government or laws he was authorized to establish intended for a conquered people.

It is true that this was said in reference to lands situated within the limits of the state of New Jersey, but it must be remembered that the Dutch not only claimed what is now known as New York, but they also claimed the territory embraced within the present limits of the states of Delaware and New Jersey. Their ontposts in fact ran from the Connecticut river to the Delaware river. And for the reason that the Dutch claimed the territory which now makes part of New Jersey, the remarks of the supreme court of the United States in Martin v. Waddell, are as well applicable to land within New York as within New Jersey.

It was also stated in the case of Martin v. Wad-dell, that “the country mentioned in the letters patent was held by the king in his public and regal character as the representative of the nation and in trust for them. The discoveries made- by persons acting under the authority of the government were for the benefit of the nation, and the crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains,—and upon these principles rest the various charters and grants of territory made on this continent.”

It is true that the Dutch, in 1629, bought or claimed to buy from the Indians, Manhattan Island, but this alleged purchase gave them no title ; for it has been held that a purchase from the Indians could not give a title,—and such a purchase cannot be recognized in the courts of the United States. Johnson v. McIntosh, 8 Wheaton, 543; United States v. Rillieux’s heirs, 14 Howard, U. S, 189.

The rule, however, is different-in Florida to which country the English never claimed title by right of discovery. They simply acquired their title to that land by treaty. 9 Peters, 712.

I am of the opinion that the fee of the Bowery and of the other streets in the city of New York that are known as Dutch streets, never was in the Dutch government, and that it was prior to the Revolution, bound by the rules of the common law, and not by the rules of the Dutch civil law. While the Dutch were in actual possession the execution of the common law was suspended, just as during the late rebellion the execution of the laws of the United States could not be enforced in some of the Southern States. But, said the supreme court of the United States in Ketchum v. Buckley, 99 U. S. Rep. 188, “the same general form of government, the same general law for the administration of justice and the protection of private rights which had existed in the states prior to the rebellion, remained during its continuance and afterwards.”

The learned counsel for the defendants contend that by the Dutch civil law, streets and highways were owned absolutely by the State, and abutting owners had no private right or property in them whatever. Whatever may have been the terms of the Dutch civil law in that respect, I wish to call attention to an order made at a meeting of the Lord Director-General and Lord Councillors of New Netherland held on the 25th day of February, 1656. This order is the first order in point of time relating to the streets of New Netherland and presumptively was made in accordance with the laws that were then in force in New Netherland. This order is to be found in Yol. II. of the Records of the Burgomasters and Schepens, p. 362. This order recites that “ Having this day resumed the survey of the streets of the city as they heretofore, in the assembly of the Director-General and Councillors of New Netherlands, were designed in the map or plan, and laid out or set off into streets with palisades according to the same, the Director-General and Council confirmed forever the survey aforesaid, without changing the same. Therefore, the advancement of the same was referred to the Burgomasters of the city. They were directed to affix a notice and determine a time at which all and any who might be abridged or injured by the aforesaid survey, should inform the Burgomasters of the extent of their damage, and to agree for the advantage of the city on the lowest price. If they could not agree, then to refer the same to two or three honest persons not interested.” The order also provided that the owners should remain in possession of the “ lots falling without the lines of the streets until they are paid therefor according to valuation.” This is very much like the modern method of taking property for street purposes. “ This,” says Gerard in his Treatise on the title of the Corporation to the streets, p. 129, “ raises the presumption, at least, that where land wa,s taken for a street, satisfaction to the owners had been made for the roadway taken, or- at any rate for the public easement established.” So it seems to have been considered at that time, for damages were awarded in 1656 and 1657 to various persons “ for what has formerly been cut off.” From this order and from these proceedings it seems clear that the authorities of New Netherland in 1656 and 1657 did recognize the private rights of abutting owners. And, therefore, if the Bowery was á street or road in 1656 or prior to 1664 the rights of an owner of property abutting on the Bowery were recognized by tips order. I have said “if the Bowery was a street or road in 1656 ” because the| evidence in the ease on that point is not very con 4 elusive. In fact no evidence on that point has been' presented to this general term. We have before us only two of defendant’s exhibits, the one the ground brief of Gov. Kieft in 1645, and the other the confirmation thereof by Gov. Nicols in 1667., It is true that in the grant by Gov. Kieft the “ Bouwery” is mentioned, but that word did not then mean what we know as the Bowery, but meant a farm. Mention is made in the grant of Pannebacker’s Bouwery and of Jacobsen’s Bonwery. The obligation of showing that the trial judge erred rests with the appellants. The alleged errors of the trial judge are presented to this court by exceptions "to the admission of testimony, and by exceptions to the charge of the trial judge and to the refusal to charge as requested by defendants.

Following the decision of this court in Abendroth v. Manhattan Railway Co., 54 N. Y. Super. Ct. 417, and for the further reasons assigned in this opinion, we are of the opinion that the trial judge did not err in charging that the plaintiffs had an easement of light, air and access. Of the same general nature is the right to put signs on a building, and the owner of property is injured in his property rights to a greater or lesser extent when such a right is taken from him.

The questions presented by the refusals to charge have been so frequently decided by this court adversely to the claim of the defendants, that it is not worth while to call the attention of counsel to the decisions; and so it is with regard to the questions presented by the exception to the testimony, showing that the owners of property mentioned in the complaint herein had paid assessments for paving the Bowery.

Certain questions were asked one of plaintiffs’ witnesses to which the defendants objected, and their objection, being overruled, excepted. These questions tended to show that the Bowery as now laid out was not a Dutch street or road. We are of the opinion that defendants were not hurt by this ruling. We said in Mortimer v. Metropolitan, Elevated, 54 N. Y. Super. Ct. 322, that the appellants were bound to show affirmatively that an error had been committed. In that case, as in this, exhibits were offered at the trial which were not produced on the argument before the general term, and we then said in effect, that these exhibits “ may have of themselves been a sufficient ground for the ruling.” This case has lately been affirmed by the Court of Appeals.

The trial judge allowed, the defendants excepting, one of the witnesses called by plaintiffs to testify that a former tenant demanded, on the construction of the elevated railroad, a decrease in the rental that he was paying. The amount of the decrease was not shown and the trial judge told the jury at the request of the defendants, that they were “ not to consider for any purpose that abatement” of rent, and that they “ must • decide the question irrespective of that.” This we think caused the error in the ruling if there was any error.

The judgment and order appealed from are affirmed with costs.

Freedman, J. (concurring).

The claim made in this case by and on behalf of the elevated railway companies is that the absolute fee of the street known as the Bowery was, prior to the surrender of the Dutch forces to the English, in 1664, in the Dutch government; that such fee thereafter went to the state or to the city of New York so absolutely that abutting owners never had, and do not now have, any easement of any kind in said street; and that the elevated railway running through the Bowery having been constructed with the consent of both the city and the state, neither its owners nor its lessees are liable for any injury inflicted upon abutting property by reason of the construction and operation of the railway.

The claim of the English that they were the owners, by right of discovery under governmental authority, of the land of which the present city of New York forms a part, and that this gave them such exclusive ownership that the Dutch government acquired no title to the land which can be recognized, has been fully set forth in the opinion of Judge Truax. I concur in his remarks as far as they go, but wish to add the following, viz:

The claim of the English, it is true, has occasionally been criticised on the ground that neither of the Cabots landed in or near New York, or saw the coast of New York. The right of discovery is not recognized in the Roman law unless followed by occupation or unless the intention of the sovereign or state to take possession be declared or made known to the world. And it must be conceded that modern diplomatists and publicists incline to the opinion that mere transient discovery amounts to nothing, unless followed in a reasonable time by occupation and settlement, more or less permanent, under the sanction of the state.

But the question in the case at bar is not to be decided according to the rules of the international law of the present time. It is a question purely between the public authorities of the state of New York and citizens- of the same state, and as such it is controlled by the decisions referred to by Judge Truax to the effect that what the English did do was sufficient to give them title by discovery, and that such title is superior to the Indian title. These decisions proceeded upon the theory that the claim of the Dutch was contested by the English from the very start, not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title, and that the claim of the English was finally decided in their favor by the sword.

That being so, it follows, that in contemplation of present law, neither the Dutch nor the Roman law ever prevailed in the state of New York, de jure, and that the common law of England must be deemed to be the original source of all our law. And it further follows that the foundations of the rights of owners of land abutting on a street laid out while the Dutch were ih possession, as against the city or the state of New York, rest upon the English common law, and that they are not to be affected by the Dutch or Roman law.

Reported cases • in which the validity of Dutch grants was upheld between individuals, have no application to the present controversy.

Now under the English common law the presumption is that the owners of lands lying on a highway are the owners of the fee of the highway; that the owners on each side of the highway own the soil of the highway in fee to the centre of the highway, and that the rights of the public in and to the highway are no higher or other than those of a mere easement. Wager v. Troy Union R. R., 25 N. Y. 529. This presumption applies as well to the streets of a city as to a country highway. Bissell v. N. Y. Central R. R. Co., 23 N. Y. 61. This presumption of law is founded on the supposition that the way was originally granted by the adjoining owners in equal proportions. Watrous v. Southworth, 5 Conn. 305. But the presumption may be rebutted by proof to the contrary, and it is rebutted by the production of a deed under which the owner derives title, granting the land to the side of the street only.

Under the operation of this rule, and there being no proof of alienation or escheat requiring a different conclusion, it must be assumed in this case that the original grantors from whom plaintiffs’ title has been derived, owned the soil of the Bowery in front of the premises in suit to the centre of the street.

But even if the title of the English rested not in discovery, but in conquest, and the English, upon the surrender by the Dutch in 1664, acquired from the Dutch a title to the then existing streets as absolute as under the Roman law the title of the government to a military highway was, the fact would not improve the position of the defendants. Upon receiving such title the English could do with ‘it what they pleased. They were not bound to enforce it against abutting owners as the Dutch government might have enforced it. The presumption is that they took the title and the streets to be held by them according to their own laws, and as matter of fact, they thereafter so dealt with said streets as to admit of no other conclusion.

The province having been granted by Charles II. to his brother, the Duke of York, by the charter of 1664, several months before the surrender to Sir Richard Nichols, the grant, in order to remove all doubt as to its validity, was afterwards confirmed by the charter of 1674, also granted to the Duke of York. The object of both charters was to enable the Duke of York to plant a colony on this continent. The charter of 1664, issued under the great seal of England, contained a provision that the statutes, ordinances, &c., to be established by the Duke in the new country should “not be contrary to, but as nearly as might be agreeable to the laws, statutes and government of the realm of England.” This charter was, therefore, in itself an explicit declaration of the King’s will that the laws of England • should be established in the colony and that' the laws of the Dutch settlers should not be retained. The consequence was that, having obtained the lands, the English held them, not under the Dutch or the civil law, but under the common law of their own country. English law governed English land, so that, even if an absolute title to a street was obtained, the street was ever thereafter treated as an English street under the common law. If, therefore, the crown, or, subsequently, the state or the city of New York at any time owned both the land in the street and the land adjoining, and thereupon granted a piece of land bounded on the street as a street, by a proper description, such a grant, under the principles of the common law, carried title to the centre of the street. And if the piece of land was bounded not on the street generally, but by the side of the street, the grantee acquired an easement in the street as regards light, air and access, and no express grant or covenant for that purpose was necessary.

As matter of fact the Duke of York ascended the throne of Great Britain as James II., in 1685, and the fee to the streets now in question remained in the British crown until 1686, when it passed from the crown by the Dongan charter. By that charter there was granted to the city of New York, “ all and every the streets, lanes, highways, and alleys within the city of New York and Manhattan Island aforesaid for the public use and service of the mayor, aldermen and commonalty of the said city and of the inhabitants of Manhattan’s Island aforesaid and travellers there.”

This grant was confirmed by the Montgomerie charter of 1730 and by various colonial laws.

Upon the organization of the state of New York, the said state, in its corporate and sovereign capacity, succeeded to all the rights of the crown in and to all the land within its territorial limits.

By the act of October 22, 1779 (1 Greenleaf, p. 31, § 14), all the property in all lands and all the rights, titles, privileges and royalties, which belonged to the British crown on or before July 9th, 1776, were declared to be vested in the people of the state. And, by the Act of March 7, 1793, §§ 3 and 111, re-enacted on April 9, 1813 (Laws 1813, ch. 86, § 192), the state transferred to the city all its estate, right, title, interest, claim and demand in and to all lands “ theretofore left for streets or highways ” in the city of New York “ for the use of streets and highways.”

Thus it will be seen that, although the city acquired a double title, from the crown and the state, to these old streets, the title is not absolute, but “ for the public use and service of the mayor, aider-men and commonalty of the said city and of the inhabitants of Manhattan’s Island aforesaid and travellers there,” and “ for the use of streets and highways.”

The words “ for the public use * * * of the inhabitants of Manhattan’s Island and of travellers there,” are quite significant. They contemplate use by two different classes of persons. The right of use by a traveller consists in the right to pass over and through the streets. The right of use to be enjoyed by the inhabitants consists in the right to use a street for all purposes for which a public street can properly be used, and one of those rights is the right to build upon and along side of the street and to have light and air and access from the street. These different uses can be harmonized and they have always been recognized by the legislature of the state and by the corporation of the-city of New York. As matter of fact, all the streets in the city of New York always existed as much for .the benefit of the occupants of the houses built along the sides of the streets as for the benefit of the general public, and new streets were opened and constructed from time to time according to the demands of building necessities. Building always preceded travel. If the upper parts of the city had not been built up so rapidly that the means of communication with the lower parts became insufficient, there would have been no demand for rapid transit and the elevated railways would not have come into existence. But there never was at any time any necessity in the city of New York for a military road or highway as known to the Roman law. The streets of the city grew as commercial requirements dictated.

On each side of every street now existing there is a sidewalk for the passage of pedestrians, and between the sidewalks there is a carriage way for the passage of vehicles. The width of each street is fixed bylaw, and the common council of the city always had the power, subject to certain limitations, to regulate by ordinance the use of the streets and of the sidewalks. In the exercise of this power the common council, by ordinances which have repeatedly been recognized by the Legislature, allowed on each sidewalk a so-called stoop line, and within such stoop-line, stoops, areas and steps descending into the cellar or basement were constructed by the owners of the adjacent houses. Under another ordinance many abutting owners purchased from the city the right to build vaults under the sidewalks of their respective premises and built vaults upon the faith of such purchases, and many of these vaults have become very valuable. Sewers were constructed through the streets and all houses along the lines of the street were connected with such sewers, and the owners of the houses were assessed for the cost of the sewers, on the theory that their property had been benefited by the construction. So, when the streets were paved, the expense was in like manner assessed upon the abutting property. Moreover, water, gas, steam and electric light are now supplied to houses through pipes running through the streets. These matters sufficiently show the uniform and settled policy of the city and the state with respect to houses built upon and along the lines of the streets. No discrimination was ever made by reason of the fact that a certain street was an old Dutch street.

How, then, can it be successfully claimed at the present time that in any street which once was a Dutch street, the city of New York or the state, or both together, may rightfully, and without making any compensation whatever, cnt off all projections from the house lines into the street, deprive the houses built upon and along both sides of the street of all benefits derived from the street, and then, if they see fit, build a solid wall against the houseline on each side of the street sufficient to shut up the occupants completely in their respective houses. This is precisely what the claim of the elevated railway companies amounts to, although milder language has been used in its presentation. The bare statement of the claim demonstrates its absurdity.

It should also be observed that the defendants have failed to show that the dimensions and the location of the road known as the Bowery during the Dutch' occupation, were identical with the dimensions and the location of the Bowery of the present time. ' According to the proof the width of the Dutch roads in New York was about three Dutch rods, whereas the present Bowery is much wider. For all that appears the latter may have been laid out under English law.

From what has already been said it sufficiently appears that the rights of the plaintiffs to the use and enjoyment of the Bowery are in no way or manner affected by the question whether that street was laid out by the Dutch or the English. That being so is just as immaterial in this case as it was held to be in the Story case, whether the present plaintiffs own the fee to the centre of the street, subject to the use of the public, or whether the fee of the bed of the street is in the city of New York in trust for the purposes of a street, and the plaintiffs have only an easement in the street as regards light, air and access, for in either case the measure of damages is the same. If, therefore, the plaintiffs are considered as having only an easement, the case is still controlled by the adjudications already had to the effect that such an easement is private property, and that such property can not be taken or impaired, even for a public purpose without compensation.

The exceptions relating to questions of evidence, the charge and the refusals to charge, have all been duly considered, and I concur with Judge Truax that none of them discloses any ground for reversal.

The judgment and order should be affirmed with costs.