author: Hardin, P. J.: MebwiN, J.: MaetiN, J.

text:
    Benjamine F. Edsall, Respondent, v. John L. Howell, Appellant.

      Trees on a highway — measure of damages for their destruction — Laws of 1868, cha/p. 93; 1890, chap. 568, § 181, considered.

    Chapter 93 of the Laws of 1863, providing that all persons owning lands fronting upon any highway (except in cities and incorporated villages) may make and have sidewalks along such land in the highway, and may plant and have shade trees along the roadside of such sidewalks, was repealed by chapter 568 of the Laws of 1890, section 181 of which latter act, however, declares that the repeal of the act of 1863 should not affect any act done, nor any right acquired under it, prior to the taking effect of the act of 1S90, but that the same may be asserted or enforced to the same extent as if the repealing act had not been enacted.
    In March, 1867, the owners of the fee of certain lands lying in an unincorporated village and one John L. Howell, then interested in a part of • the lands, duly applied to the commissioner of highways of the town to lay out a highway over their lands, and in their application dedicated the lands to the public and released all damages therefor. The highway was duly and legally laid out.
    In June, 1867, Benjamine F. Edsall entered into a contract with two of the owners for the purchase of a lot abutting on this highway, and in 1868 he set out trees in the highway in front of his premises.
    In 1869 Edsall received a deed of his lot described therein, as “ lot Ho. one, on the corner of Howell and Walnut streets (so called) as laid down and designated on a map,” in which no mention was made, either affirmatively or negatively, as to the title to the land in the street in front of his premises. Thereafter John L. Howell, claiming title to the land in the street under conveyances from its former owners, cut down a tree in front of Bdsall’s premises, and to recover the damages caused by his so doing Edsall brought an action of trespass in which he recovered damages.

      Held, that the saving clause in the repealing act (Chap. 568 of 1890) was sufficient to protect Edsall as against the public or public officers, and to secure to him as against the public or the public officers the right to the continuance of the growth of the tree;

      That the description in the deed to Edsall gave him the ownership to the center oí the street in front of his lot;
    That the proper measure of damages was the difference between the value of the premises before the tree was cut and their value after the cutting;
    That the defendant., if the owner of the fee of the street, would have no right to cut down the tree. (Per Merwin, J.)
    Martin, J., dissenting.
    Appeal by the defendant, John L. Howell, from a judgment of the County Court of Tioga county in favor of the plaintiff, entered in the clerk’s office of the county of Tioga on the 7th day of March, .1894, upon the verdict of a jury after a trial by the court and a jury, and also from an order entered in said clerk’s office on the 10th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes, and also from an order denying his motion for a nonsuit.
    This action was brought to recover the damages residting from an ■alleged trespass arising out of the cutting of a certain tree on a highway or street in the unincorporated village of Nichols, Tioga county. The defendant claimed title to the fee in the street in front of the plaintiff’s premises under two deeds from the former owners, one dated in I860 and the other in 1892. Upon the trial of the action Howell testified that lie did not cut down the tree in question until he had received the deed dated in 1892, which, in its terms, clearly covered the part of the highway in question.
    The plaintiff’s complaint alleges that the defendant in January, 1893, “ was and had been the owner of a certain shade tree, viz., a maple tree, standing in and upon a certain strip of land in the town of Nichols, in the county of Tioga, N. Y., the said strip of land being a public highway of the said town, and the said tree standing in front of certain premises or lands owned by the plaintiff during all the times above referred to, and which said lands and premises were fronting on the said highway. * * * The defendant,
    without permission or license of plaintiff, the owner, or of any proper officer or person, but willfully, -wrongfully and unlawfully, entered in and upon the said highway and in front of the plaintiff’s said premises, and then and there willfully, wrongfully, unnecessarily cut, sawed, girdled, despoiled, injured and destroyed the said tree to plaintiff’s actual damage of the sum of $65.” Defendant in liis answer stated: “ That the maple tree mentioned in the plaintiff’s complaint is situate upon the border of a highway, the freehold or fee title of which is in defendant, and defendant was seized of the same, and that defendant had reasonable grounds to suppose that he was the owner of, and seized of said maple tree, and whatever defendant did in the premises was done supposing and believing that he was the owner thereof.” The deed of .the lot to the plaintiff described the land as follows, viz.: “ All that tract or parcel of land situate in the town of Nichols in the County aforesaid, known as lot No. one, on the corner of Howell and Walnut streets (so called) as laid down and described in a map and survey made by' S. Dexter on the twenty-seventh day of May, 1867, said lot being, 'according to said map, 132 feet on Howell street by 82-2- feet on Walnut street and containing about one-fourth acre of land.”

      8. Jay Ohcvrt and M. 8. Lynoh, for the appellant.

      O. B. Glezen, for the respondent.
   Hardin, P. J.:

March 30, 1867, John L. Howell, the defendant, made application to the commissioner of highways of the town of Nichols, in writing, to lay out a highway in the town according to a line indicated by a survey and a map, in which application it was stated that the highway will pass through the improved lands of Peter Joslin, Oliver A. Barstow and John L. Howell, the subscriber.” It was stated in the ajiplication, viz.: “ Each and every one of such owners consenting to the laying out of such highway, and I, the said John L. Howell, do hereby consent to the opening and laying out of said highway in so far as the same crosses over or enters upon the land or any lands owned by me, and I do dedicate to the Peoj)le of the State of New York the use of so much of my said lands as is included within the bounds of said highway for the purposes of public travel, and I do hereby release to the said People all my claims to damages by reason of the opening or laying out of such highway and authorize the said commissioner to lay out and work the same.” Subjoined to that application was the consent signed by Peter Joslin and Oliver A. Barstow, “the ones having the legal title to the lands hereinafter alluded to, and the latter being interested therein as made in a written contract of sale therefor, do-hereby consent to the opening and laying out of the highways which are described and mapped out in the survey and order hereto annexed, in so far as the same crosses over or enters upon any land owned by us or either of us, or in which we or either of us are or is interested, and we do hereby dedicate to the People of the State of New York the use of such portions of our said lands as is included within the bounds of said highway for the purpose of public travel, and we do hereby further release to the People of the State of New York all our and each of our claims to damages by reason of the laying out and opening of such highway, or enters our said lands by the said order hereto annexed and authorize the commissioner to open and work the same.” Upon receiving the several papers so signed, the commissioner of highways made an order that a public highway be “ and the same hereby is laid out, pursuant to such application and determination, whereof a survey hath been made; ” and in his order particularly described the proposed highway, which order he signed on the 19th day of April, 1867. On the 1st day of June, 1867, Edsall, the plaintiff, entered into a contract with C. R. Barstow and O. A. Barstow to purchase of them “ all that lot of land in the village of Nichols, known as lot No. one, on the corner of Howell & Walnut streets (so called), as laid down and described in a map and survey made by S. Dexter on the 27th of May, 1867, said lot being according to said map 132 feet on Howell street by 82^- feet on Walnut street, and containing about \ acres of land.” In pursuance of that contract Edsall, the plaintiff, on the 16th day of February, 1869, took a deed of the premises from the Barstows, in which deed the lands acquired by the plaintiff were described as follows : All that tract or parcel of land situate in the town of Nichols in the county aforesaid, known as lot No. one, on the corner of Howell and Walnut streets (so called), as laid down and described in a map and survey made by S. Dexter on the twenty-seventh day of May, 1867, said lot being, according to said map, 132 feet on Howell street by 82& feet on Walnut street, and containing about one-fourth acre of land.” The plaintiff went into possession of the land so purchased after receiving the contract and continued in possession down to the time of the trial. In 1868, in front of his premises, he set out some maple trees, and the most easterly tree was tlie one which the defendant cut. . It was about a foot west of the plaintiff’s east line, if the east line of his lot be continued to the center of the street.

Chapter 93 of the Laws of 1863 provided, viz.: All persons owning lauds fronting upon any highway (except in cities and incorporated villages) may make and have sidewalks along such land in the highway and plant and have shade trees along the roadside of such sidewalks; such sidewalks with shade trees shall not extend more than six feet in width from the outward line of such highway; provided such highway is not over three rods wide, with the right to add one additional foot in width to such sidewalk for every additional rod in width of such highway where such sidewalks may or shall be built or shade trees planted, and for the protection of such walks or trees may also construct a railing upon' the roadside adjacent and within two and a half feet of such trees or walks, of not more than one bar in height with posts, and also protectives at the ends in such way or manner as not to prevent foot passengers from using such walks, but so built as may and shall prevent cattle from going thereon.” While that law was in force, to wit, in 1868, the plaintiff set out the tree in question. Although chapter 93 of the Laws of 1863 was repealed by chapter 568 of the Laws of 1890, relating to highways, section 181 of the act of 1890 contained a saving clause in the following language : The repeal of a law, or any part of it specified in the annexed schedule, shall not affect or impair any act done, or right accruing, accrued or acquired, or penalty, forfeiture or punishment incurred prior to the time when this act takes effect, under or by virtue of the laws so repealed, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such laws had not been repealed.” So far as the public easement or the public use of the highway was concerned the statute of 1863 operated as against the public to authorize the plaintiff to plant the tree in question, and we are inclined to think the saving clause found in the statute of 1890 was sufficient to protect him as against the public or public officers and to secure to him as against the public or the public officers the right to the continuance of the growth of the tree. Considering the contract which he made when he purchased the lot and the deed which he subsequently received therefor and the description therein found, we are inclined to think that the rule of law obtained that gave him the ownership to the center of the street, subject, however, to the public easement. (Village of Lancaster v. Richardson, 4 Lans. 136 ; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Wiggins v. McCleary, 49 id. 346.)

In Hennessy v. Murdock (137 N. Y. 323) it was said: The use of the fee of the bed of the street is so inseparably connected with the ordinary use of the adjacent lot that a severance of the two will not be deemed to have been effected unless the presumption that the grantor intended to pass title to the centre of the street is rebutted by other parts of the deed and by the condition and relation of the parties to the lands conveyed and other lands in the vicinity.” That case cites with approval Mott v. Mott (68 N. Y. 246).

(2) We are of the opinion that the complaint sufficiently set out the ownership of the tree in question, and that the defendant willfully, wrongfully and unlawfully “ cut, sawed, girdled, despoiled, injured and destroyed the said tree and that the evidence given under the complaint tended to support the allegation. The plaintiff testified that he set the tree out in the spring of 1868 in front of his lot, and that it has stood there ever since.” lie testified that his lot was worth before the tree was cut $1,500 and that immediately after the tree was cut it was worth $1,425, and lie. added that he was of the opinion that it depreciated the value of his lot $75. The witness Merrill testified that it always was-a thrifty tree and that there were no dead limbs in it before it-was cut, and that he was acquainted with the value of the real, estate, and then, against the defendant’s objection, he was permitted to state the value of the house and lot as it stood previous to the-cutting of the tree and the value of it afterwards, making, according to his opinion, a difference of $50. We think no error was-committed in receiving the evidence. (McCruden v. Rochester Railway Co., 5 Misc. Rep. 64; Evans v. Keystone Gas Co., 72 Hun, 503 ; 54 N. Y. St. Repr. 861.)

The question of damages was alluded to by this court in delivering the opinion in Nixon v. Stillwell (52 Hun, 353), and that case seems to be referred to with approbation in Dwight v. E., C. & N. R. R. co. (132 N. Y. 203). Since these cases were determined the question has been considered in Hartshorn v. Chaddock (135 N. Y. 122). Applying the rule stated in the case just cited to the case in hand, we are of the opinion that we ought not to disturb the verdict on the question of damages.

The case of Wood v. Lafayette (68 N. Y. 181) is quite unlike the case before us and does not aid the contention of the appellant. We see nothing in Robert v. Sadler (104 N. Y. 229) justifying the act of the defendant in despoiling the tree of the plaintiff standing adjacent to his premises.

The judgment and order should be affirmed, with costs.

MebwiN, J.:

The point relied on by defendant is that he was the owner of the fee, and, therefore, had the right to cut down the tree. Does the conclusion follow from the premise? The law of 1863 was in force at the time the defendant, and those from whonrhe holds, petitioned for the highway and released their damages. Presumptively they knew that, as the law then stood, an adjoining owner had the right to have sidewalks and plant shade trees on the side of the street. The dedication and release are presumed to have been made in view of this right and co-extensive with the use to which such highway might by law be devoted. (Griffin v. Martin, 7 Barb. 297; Hardenburgh v. Lockwood, 25 id. 9.) The setting out of trees along the side of a highway has from time immemorial been recognized as a proper use of a highway. (2 R. L. of 1813, chap. 33, § 29, p. 279 ; R. S. vol. 2 [8th ed.] 1398, § 127.) The right given by the law of 1863 is not, I think, limited to those adjoining owners who own the fee. The language of that act is general, and its plain object would not be attained by limiting its effect to one class of owners. The right to plant shade trees goes with the right to have sidewalks. I am of the opinion that the defendant, although the owner of the fee, had no right to cut down the tree. I, therefore, vote for affirmance.

MaetiN, J.

(dissenting):

This case was tried and submitted to the jury upon the theory that the defendant was the owner in fee of the land upon which the tree in question stood. When the case is examined upon that theory, the only question which bears upon the plaintiffs right to maintain tliis action is whether he could recover for cutting the tree upon lands to which the defendant had the title, although it was in the highway in front of the plaintiff’s premises.

At common law the owner of the fee over which a highway is laid has all the usual rights and remedies of the owner of a freehold, and as such has the exclusive right to the soil and its productions, including the herbage and trees, subject only to the easement or right of passage over it by the public and the incidental right of properly fitting the way for use. (Elliott on Roads & Streets, 519, and cases cited; Bliss v. Johnson, 73 N. Y. 529, 533.) Hence, it is manifest that the plaintiff had no right to plant the tree in question upon the defendant’s land or to maintain it there without his consent unless there is some statute which has conferred that right.

The only statute which it is claimed or pretended has any application in this case is chapter 93 of the Laws of 1863, which provided : “All persons owning lands fronting upon any highway (except in cities and incorporated villages) may make and have sidewalks along such land in the highway and plant and have shade trees along the roadside of such sidewalks.”

It was in effect held by the court below that this statute conferred upon the plaintiff the right to plant trees upon the land of the defendant in the public highway upon which the plaintiff’s lands fronted, and that he so far became the owner of the tree and entitled to the use of the defendant’s land to maintain it as to make him a trespasser in cutting it. If this be true, I can see no reason why the same rule would not apply to any case where the statute has provided that the highway may be used for other than highway purposes, including telegraph and telephone lines and street and steam railways. The’weight of authority, however, is to the effect that where the fee is in an abutting owner the appropriation of a street for the use of a steam railway is a new and additional burden. for which the abutter is entitled to compensation. (Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Mahon v. N. Y. Central R. R. Co., 24 id. 658 ; Henderson v. N. Y Central R. R. Co., 78 id. 432.) The same principle is applicable in case of a horse railroad (Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404); and to the setting of poles in the street upon the land of an abutting owner by a telephone or telegraph company (Dusenbury v. Mutual Telegraph Co., 11 Abb. N. C. 440; Metropolitan Telephone, etc., Co. v. Colwell Lead Co., 67 How. Pr. 365; Johnson v. Thomson-Houston Electric Co., 54 Hun, 469; Board of Trade Telegraph Co. v. Barnett, 107 Ill. 507; Smith v. Central, etc., Tel. Co., 2 Ohio Circ. Ct. 259 ; Willis v. Erie Telegraph & Telephone Co., 37 Minn. 347); so, too, neither public officers, nor individuals other than the owner, can remove or disturb the soil in the highway, except so far as is necessary for its construction or repair. (Robert v. Sadler, 104 N. Y. 229.)

The statute of 1863 was simply permissive, and was not intended to interfere with or change the property rights of individuals as between themselves. I am of the opinion that a proper construction of this statute requires us to hold that its purpose was to give the abutting owners the right to plant trees upon highways where the title to the land was in them, or, perhaps, where the title was in the public, and that it ought not to be construed as vesting authority in the owner of abutting land to appropriate the adjoining land of his neighbor to his own use for that purpose. That construction is consistent with the rights of all parties, while an opposite one would be inconsistent with the rights of a land owner and render the constitutionality of the statute doubtful. Such a construction should not obtain. The presumption is that the Legislature did not intend to violate the Constitution, and the statute should be so construed as to uphold its validity and maintain the common-law rights of the defendant. Nor can I concur in the conclusion that this court should assume that the plaintiff had title to the land to the center of the highway upon the theory that the law presumes that the conveyance to the plaintiff passed the title to the center because it was bounded - by the highway. It was practically conceded upon the argument as well as upon the trial that the title, to the land was in the defendant. The respondent does not dispute this proposition. If there had been any contest over this question it may well be that the defendant would have proved .'that the condition and relations of the parties and the situation of the land were such as to completely repel and overcome such presumption. The evidence fails to show that the j>lain tiff’s grantors ever had any title to or interest in the land over which this portion of the highway was laid. If his grantors had no title it is difficult to imagine how the defendant’s title could be divested by such a presumption when the conveyance was between, other parties who had no title whatever to the land in question.

The question whether the title passes to the center where lands conveyed are bounded by a highway is one of intent, and the intent is to be gathered from the description of the premises in connection with other parts of the grant and by reference to the situation of the land and the condition and relations of the parties to the land conveyed and other lands in the vicinity. (Mott v. Mott, 68 N. Y. 246.) Moreover, this presumption has no existence where the grantor is not the owner of the fee of the land in the highway. (2 Devlin on Deeds, § 1024).

I am of the opinion that the court erred in charging the jury that the defendant was liable although the owner of the land (Village of Lancaster v. Richardson, 4 Lans. 136), and that for such error the judgment should be reversed.

Judgment and order affirmed, with costs.

       So in original.


source: Caselaw Access Project

author: HabdiN, P. J.:

license: Public Domain

text:
    William A. Dexter, Respondent, v. The Village of Fulton, Appellant.

      Wlien an appeal brings up only exceptions — negligence — duty of a municipal cor-pm'ation to repair a bridge — notice of defects — motion to make a complaint more

    Where the papers in a case on appeal from a judgment entered on the verdict of a jury contain no appeal from an order denying a motion for a new trial, and no order is found denying such a motion, and the case does not show that it contains all the evidence given upon the trial, the appeal brings up for review only the exceptions taken on the trial
    If, in an action brought against a municipal corporation to recover damages for its alleged negligence in the care of a bridge, the defendant desires a more accurate description of the place where the injuries claimed to have been sustained occurred, or of the negligence of the defendant in respect thereto, the proper course is to move to have the complaint made more definite and certain.
    To sustain an action of this character some neglect or omission of duty in repairing defects must be shown in order to charge the municipality with the consequences.

      The duty to repair arises after actual notice of the existence of the defect, or after such a lapse of time as would justify the imputation of negligence, if the defect had not been discovered.
    The question of what, under the circumstances, is a reasonable time is one for the jury.
    Appeal by the defendant, The Village of Fulton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 27th day of October, 1894, upon the verdict of a jury rendered after a trial at the Oswego Circuit.
    This action was brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant in leaving one of its bridges in an unsafe and insecure, condition, by reason whereof the plaintiff’s horse stumbled and fell, receiving-injuries, and also causing injuries to plaintiff’s infant son of eight years of age, causing an expenditure for nursing the son of forty dollars and for medical services forty-one dollars and fifty cents.

      Sheldon B. Mead, for the appellant.

      Charles F. Boyd and O. M. Reilly, for the respondent.
   HabdiN, P. J.:

Judgment was entered upon the verdict on the 27th day of October, 1894, in the clerk’s office of Oswego county. A notice of appeal was prepared on the 10th of November, 1894, to the effect that the defendant appeals “ from the judgment of the Supreme Court, herein entered in the .clerk’s office of the county of Oswego on the 27th day of October, 1894, in favor of the plaintiff against the said defendant.” No appeal is found in the appeal book from any order denying a motion for a new tidal. No order is found in the appeal book denying a motion for a new trial. The case does not show that it contains all the evidence given at the trial. The appeal, therefore, brings up “ for review only the exceptions taken on the trial.” (Wright v. Haskin Wood Vulcanizing Co., 76 Hun, 340.)

(1) Plaintiff’s complaint alleges that the “ unsafe, defective and dangerous condition of said bridge or culvert was caused by the negligent conduct of said village and its officers in the management and care of its streets, bridges, culverts and sidewalks.” It also alleges “ that said bridge or culvert was defective, dangerous, unsafe and out of repair in the following respect or particular: The planks were rotten, loosely laid together, out of repair, weak and unsafe.”

We think if the defendant desired that the complaint should contain a more accurate description of the place where the injuries occurred, or the negligence of the defendant in respect thereto, its remedy was to have the complaint made more definite and certain. (Sherman v. Village of Oneonta, 49 N. Y. St. Repr. 267; S. C., 21 N. Y. Supp. 137; S. C. affd., 142 N. Y. 637.)

(2) In considering the liability of a municipal corporation in a case somewhat like this it was said in Gorham v. Village of Cooperstown (59 N. Y. 660) that “some neglect or omission of duty in repairing defects or removing obstructions must be established in order to charge the municipality with the consequences of any defects in or obstruction of the thoroughfares within the corporation.” And in Rehberg v. The Mayor (91 N. Y. 143) it was said that the duty to repair “ arises after actual notice of its existence, or after such a lapse of time as would justify the imputation of negligence, if the defect or obstruction had not been discovered, and what is such reasonable time is a question for the jury.” The doctrine of those eases was stated and followed in Sherman v. Village of Oneonta (supra).

We think the evidence presented upon the trial tended to make out a case of negligence against the defendant within the principles of the cases to which reference has already been had, and that the trial judge committed no error in refusing to nonsuit the plaintiff. Nor do we think it was error to refuse to charge “that there is no evidence in this case of any notice to the village of the defect upon which the cause of action is predicated, and no evidence showing or tending to show how long the defect complained of had existed prior to the accident.” We'think the comments of the trial judge in declining to so charge were proper.

The case of Herrington v. Village of Phœnix (41 Hun, 270) is unlike the case in hand. In that case there was a plank displaced, and it was said “ it might have been displaced by a trespasser, or accidentally by the last team crossing the bridge before the accident.” And it was further said “ nor were any facts tending to establish- negligence on the part of defendant’s officers, except that at tlie time of the accident a plank was displaced,” given. In the case in hand upon the evidence presented it was for the jury to determine whether the defendant or its officers had been guilty of negligence in leaving the bridge in an unsafe and insecure condition. (Hart v. Hudson River Bridge Co., 80 N. Y. 622; Goff v. Village of Little Falls, 47 N. Y. St. Repr. 729, and cases there cited.)

In Pomfrey v. Village of Saratoga Springs (104 N. Y. 465) it was said : “ They do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance, and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.”

We have discovered no error in any of the exceptions taken by the defendant at the trial, and it follows that the verdict should be sustained.

MaetiN and MerwiN, JJ., concurred.

Judgment affirmed, with costs.


author: HardiN, P. J.:

text:
    George J. West, as Executor, etc., of John G. West, Deceased, Respondent, v. George H. Wright and Others, Appellants.

      Defective case on appeal — no review on the facts —purchase of stock — a wager on future market prices — parol evidence to show it.

    In the absence of a certificate in the appeal book that the case contains all the evidence taken at the trial, the respondent is entitled to rely upon the presumption that there was no intention to ask for a review of the rulings on the questions of fact.
    Where a person directed another to purchase stock for him, with the understanding that the stock should not be delivered, and that only the difference in the market price thereof should be paid or received, the transaction is a wager on future market prices and is void under the statute.
    In an action brought to recover the amount of money so paid, parol evidence is admissible to show that the real understanding between the parties when the order was given was that the stock should not be delivered, but that only the difference in the market price should be paid or received.
    Appeal by the defendants, George IT. Wright and others, from a judgment of the Supreme Court in favor of the plaintiff, entered. in the office of the clerk of the county of Broome on the 17th day of August, 1894, upon the report of a referee.
    The action was brought December 16, 1888, by the deceased, to recover money alleged to have been paid on a wager contract. The answer contained a denial of the allegations of the complaint.
    On the 18th of September, 1888, West, the original plaintiff, entered the Binghamton office of the Central City Stock and Grain Exchange of Syracuse, Limited, and gave an order to sell 200 shares of St. Paul, and took a ticket which stated that he had sold to the Central City Stock and Grain Exchange of Syracuse, Limited, 200 shares of St. Paul. The same day he sold another 100 shares of St. Paul. The 200 shares were sold at 62J and the 100 shares at 62-|. At the time of the transactions just mentioned he had no stock. It is claimed that the §1,800 which he paid was deposited to the credit of George IT. Wright, treasurer of the Central City Stock and Grain Exchange of Syracuse, Limited. The papers which were used by the parties represented that George IL. Wright was secretary and treasurer. Subsequently West demanded back the §1,800, and the demand was refused and he brought this action to recover the same. Defendants Bennett and Eisher allege that in September, 1888, at the time of the transactions had with West, they were not members of the Central City- Stock and Grain Exchange of Syracuse, Limited.
    The referee found as matter of fact: “ That during the month of September, 1888, the defendants Conrad J. Eisher and James 0. Bennett were not members of the Central City Grain and Stock Exchange of Syracuse, Limited, and had not been such members for a considerable time prior thereto.” Among his conclusions of law lie found, viz.: “ That, as to plaintiff, defendants were partners in Septembei’, 1888, when transactions in suit took place,” and he ordered judgment in favor of the plaintiff against all of the defendants for the sum of §1,800, with interest from December 17, 1888.
    Exceptions were taken to several findings of fact and to conclusions of law stated by the referee.

      E. O. Wright, for the appellants.

      E. K. Olarh, for the respondent.
   HardiN, P. J.:

No certifícate is found in the appeal book that the case contains all the evidence taken at the trial. In the absence of such a statement the respondent is entitled to rely on the assumption that there y/as no intention to ask a review of the rulings on the questions of fact. (Porter v. Smith, 35 Hun, 118 ; S. C. affd., 107 N. Y. 531; Halpin v. Phenix Ins. Co., 118 id. 171; Goodrich v. Gillies, 62 Hun, 479.)

In Dibble v. Dimick (143 N. Y. 555) it is said: “ It is now well settled that where the party appealing desires the court to review •the facts, he must insert in the record a statement that it contains all the evidence or all that is material to the question sought to be reviewed.”

In Halpin v. Phœnix Ins. Co. (supra) it was held that where there is a finding of fact by a court or referee without evidence to support it it is a ruling upon the question of law, and if excepted to presents a legal question. That case seems to reassert the doctrine laid down in Spence v. Chambers (39 Hun, 193).

Section 993 of the Code of Civil Procedure provides that a finding without any evidence tending to sustain it is a ruling upon a question of law.

In Travis v. Travis (122 N. Y. 453) the section was construed and in that case it appeared “ No exception was taken to any finding of fact so as to raise the question of law that there was no evidence tending to sustain it.”

The referee found that the money paid by the plaintiff into the Binghamton office was deposited in the City National Bank of Binghamton to the credit of the Central City Stock and Grain Exchange of Syracuse, Limited, in the name of George H. Wright, treasurer, and it is claimed by the appellants that that finding is not supported by evidence. According to the testimony given by the plaintiff’s witness, Seymour, the course of business between the Binghamton office and the Syracuse office was stated in detail; he states that he remembers West paying in about $1,800, and that “ whatever was due, it was deposited to their credit; ” that is, to the credit of the Syracuse office; and the books that were kept at the time corroborate the statement made by the witness. The witness referred to a statement of September eighteenth that came to the Binghamton office from the Syracuse office after the transaction of September eighteenth, and he says that that statement shows the two transactions mentioned by the plaintiff in his testimony. And a further statement was produced indicating what was called for on the nineteenth of September to be deposited to the credit of the Syracuse office. The testimony already referred to and the further testimony offered by the plaintiff, when read in connection with the testimony given by the defendants, we think sufficiently justified the finding that the money paid by the plaintiff was passed to the credit and received by the Syracuse office. (Hannigan v. Allen, 127 N. Y. 640.)

It was found, as matter of fact, by the referee, “ that during the month of September, 1888, the defendants Conrad J. Eislier and James 0. Bennett were not members of the Central City Grain and Stock Exchange of Syracuse, Limited, and had not been such members for a considerable time prior thereto.”

Bennett testified that in the year 1888 he was not in business in Syracuse prior to October eleventh of that year. And Wright testifies that during the month of September Bennett and Fisher “were not in the concern.” We find in the case no satisfactory evidence indicative that Fisher and Bennett actually received the money paid over and advanced by the plaintiff. When the plaintiff entered into the transaction it was with the understanding that the property should not be delivered, and that only the difference in the market should be paid or received, and the transaction was, therefore, a wager on future market price, and void under the statute. (Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 id. 420.)

Parol evidence was admissible, and was received to show that the real understanding between the parties when the orders were given was that the property should not be delivered, but that only the differences in the market price should be paid or received. (Peck v. Doran & Wright Co., 57 Hun, 343; S. C., 10 N. Y. Supp. 401 ; Dwight v. Badgley, 14 id. 500; 60 Hun, 144; Kenyon v. Luther, 4 N. Y. Supp. 499; Amsden v. Jacobs, 26 id. 1000; 75 Hun, 311.)

The statute, which has been construed in the cases to which reference has been made, provides that any person who shall deliver or deposit any money upon the event of any wager may sue for and recover tlie same of tlie winner, or person to whom the same shall be paid or delivered.” (3 R. S. [8th ed.] p. 2218.) And it is contended by the appellants that Bennett and Fislier are not liable because they were not, in fact, at the time West paid his money, in September, 1888, partners or members of the firm which carried on the business under the name of the Central City Stock and Grain Exchange, Limited. To escape the force of that contention it is claimed in behalf of the respondent that Mr. West had dealings with the parties in 1886, and that he was informed that Bennett and Fisher were connected with the Syracuse office. The evidence on that subject is not very definite or certain. It seems that West received some information upon the subject of the connection of Bennett and Fislier with the Syracuse office at that time; but a fair consideration of the whole evidence would seem to justify the conclusion that at'tlie time that West had a transaction in 1886 with tlie Syracuse office Bennett and Fislier were not in fact connected with the business carried on in the Syracuse office. We think the evidence is insufficient to warrant the application of the rule contended for by tlie respondent, to the effect that once having been partners, the liability as such partners continues until notice was given of their retirement from the partnership, according to the rule laid down in Elmira, I. & S. R. M. Co. v. Harris (121 N. Y. 280). So far as the contention of Bennett and Fisher, to tlie effect that they did not actually receive the money that was parted with by West in September, 1888, we think a reasonable view of the evidence recpiires us to say that they were not recipients of the money, and, therefore, not liable under the statute, which imposes the liability upon the person to whom the same shall be paid.”

In Weyburn v. White (22 Barb. 82) it is said that the right of action to recover back money paid in pursuance of a wager depends wholly on the statute, and that no remedy was allowed by the common law, and that the liability of a party to return the money is in the nature of a penalty or a forfeiture for the benefit of the party aggrieved.”

West, in the course of his cross-examination, testifies to dealings he held with the Binghamton office in December, 1886; and Bennett testifies that he was in business in the Syracuse office until October, 1886. Fisher testifies that he and Bennett withdrew from the firm, having sold their interest to Wright, and that this change took place in the latter part of the year 1886, and that from that time in 1886 and during the whole of the year 1887 and until October, 1888, he had no interest in the firm and had nothing to do with it, and that he had no business relation or connection with it during that time whatever. We think the evidence insufficient to maintain the position that the plaintiff’s money was received by Fisher and Bennett, and as to them we think the evidence fails to establish a cause of action under the statute upon which the plaintiff’s right to recover rests. If the foregoing views are correct, the judgment as to Bennett and Fisher is erroneous, and as to them should be reversed. We have found no prejudicial error in the case as against the defendant Wright.

Martin and Merwin, JJ., concurred.

Judgment as to Bennett and Fisher reversed and a new trial ordered, with costs to abide the event. Judgment appealed from as to Wright affirmed, with costs.


author: Hardin, P. J.:

text:
    The City of Syracuse, Respondent, v. Richard M. Stacey and Others, Appellants, Impleaded with Others.

      Eminent domain— ownership of water rights — diversion of water from a natural stream —proceedings under chapiter 291 of 1889, as amended by chapter 314 of 1890, governed by chapter 23 of the Code of Civil Procedure — statute to be strictly observed.

    Condemnation proceedings instituted under the provisions of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890. if instituted subsequent to the taking effect of chapter 95 of the Laws of 1890, are governed by the provisions of chapter 23 of the Code of Civil Procedure and such provisions of the Code will be applied to and control such proceeding.
    It is the duty of the city of Syracuse, under the provisions of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, to acquire and extinguish all water-power rights upon the outlet of Skaneateles lake to he affected by the proposed storage of water therein, in condemnation proceedings taken under the provisions of the said act, and the petitioh. in condemnation proceedings under such act should describe and specify all the water-power rights affected by the proposed storage and taking of the water from such lake.

      It is the duty of the petitioner in condemnation proceedings to obey the provis ions of section 3360 of the Code of Civil Procedure and to implicitly and accurately follow its requirements. In doing so it is the petitioner’s duty to insert in the petition an accurate specific description, with reasonable certainty, of the precise property rights sought to be condemned, to the end that the proceedings shall comply with the statute, and the property owner be enabled by the petition to understand just what is sought to be taken from him and just what is left, if anything, after the property rights have been taken under the proceedings instituted by the petition.
    The ownership which persons owning property bordering on a lake have in the waterfiow and water rights thereof, is a corporeal, right, an incident of property in, and parcel of, the land owned by them.
    The Legislature is the sole judge of the expediency of allowing an interference with the natural rights of the citizens of the State in water powers and rights owned by them, and as to the expediency of exercising the right of eminent domain for any public purpose.
    The power of eminent domain, which resides in the State as an attribute of sovereignty, is dormant until called into exercise by an act of the Legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient, and the State can neither exercise this prerogative, nor can it delegate its exercise, except through the medium of legislation.
    Whenever an attempt is made either by the officers of the State or by a corporation organized for a public purpose to take private property under the power of eminent domain, the officers or body claiming the right must he able to point to a statute conferring it. In the absence of statutory authority private property cannot be invaded by this power, however strong may bo the reasons for the appropriation.
    In construing statutes which are claimed to authorize the exercise of the power of eminent domain, a strict rather than a liberal construction is the rule. Such statutes assume to call into active operation a power which, however essential to the existence of the government, is in derogation of the ordinary rights of private ownership, and of the control which an owner usually has of his property.
    It is proper to exact of a petitioner in condemnation proceedings that it should fulfill and carry out all the conditions and restrictions imposed by the legislative acts under which it seeks to derive important and valuable rights and privileges, and so far as the conditions and restrictions, found in the statute proceeded under, relate to the rights of the owners whose property is sought, to be taken, the owners are entitled to have the full benefit thereof.
    The fact that the Legislature by chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, authorized the city of Syracuse to take water from Skaneateles lake by means of a conduit of thirty-inch carrying capacity, does not deprive the owners of the right to have the full benefit of the restrictions' and conditions named in such statute, and to insist that the acquisition or extinguishment should be of all water powers and water rights upon the outlet to. the lake in question.

      The right to divert the waters from a natural stream can only be acquired under and bjr virtue of the sovereign right of eminent domain and upon making just compensation, which right it is in certain cases competent for the Legislature to grant to corporations.
    ■ Appeal by the defendants, Richard M. Stacey and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 20th day of June, 1894, denying the defendants’ motion to vacate and set aside the decision of the court in this proceeding, the judgment entered thereon and the order appointing commissioners to ascertain, determine and report the compensation to be made for property and rights sought to be taken in such proceedings, and the appointment of said commissioners, and to dismiss the petition herein and such proceedings.
    Also an appeal by the defendants the Skaneateles Paper Company and others, from an order of the Special Term, made on the 19th of May, 1894, entered in Onondaga county clerk’s office June 20,1894, “ confirming the awards of the commissioners of appraisal herein, and directing compensation to be made to the several defendants as therein stated and from the whole of said order, except that part thereof which directs that certain of the defendants- who appeared, answered and defended herein recover of the plaintiff: each a bill of costs, * * * and that each of said defendants be allowed * * * the sum of five per cent on the amount of the award; ” in the notice of appeal notice was given : “ That there will be brought up for review upon this appeal by said defendants, the judgment of condemnation, entered in this proceeding in the clerk’s office of Onondaga county on January 28, 1893, and the order appointing commissioners of appraisal, etc., herein, entered in said clerk’s office on January 30, 1893, together with all the proceedings herein antecedent to said judgment and order, including the decision herein on which said judgment was entered, and from which said judgment and order, and each of them, said defendants hereby appeal.”
    The plaintiff by the Syracuse water board made its petition, bearing date the 14th day of November, 1892, for the purpose of instituting condemnation proceedings against the property of the appellants and several others, and annexed to the petition were nineteen schedules in which were described the properties of the defendants.

      Accompanying the petition was a notice bearing date November 14,1892, signed by the attorneys for the Syracuse water board, “representing the city of Syracuse upon said application,” to the effect that the petition would be presented to a Special Term in Onondaga county on the 3d day of December, 1892. On that day parties appeared in said term, and on motion of the attorneys for the petitioner, several amendments and corrections to the petition were made by an order that the court granted on that day; and on the 4th day of January, 1893, at said term, a further amendment was allowed to the amended petition by inserting “ after the word ‘ watershed’ the words ‘not required by the State of New York for the Erie canal,’ and by adding the same words ‘not required by the State of New York for the Erie canal’ after the word ‘watershed,’ where the same first occurs and immediately preceding the words ‘ as the same flow or might otherwise flow ’ in each of the several schedules annexed to the petition.” Numerous objections were taken to the petition and overruled by the Special Term, and several answers were filed by the defendants to the petition, and the proceedings were adjourned from time to time. The Special Term found, after hearing the parties, among other things, as matter of fact: “ In order to accomplish the purpose indicated it is necessary that the city of Syracuse should condemn and acquire all the property, rights, title and interest of the defendants, and every of them, of, in and to the waters of Skaneateles Lake and its watershed not required by the State of New York for the use of Erie canal, and which shall not be discharged for such use from said lake into the outlet thereof, and which may not in times of high water, or from other causes, actually escape from said lake and be discharged into the outlet thereof.”
    Also, that “in the year 1843 the State of New York, under the resolutions of its canal board and canal commissioners next hereinafter recited, appropriated the waters. of Skaneateles lake and its outlet as a reservoir and feeder for the Erie canal.”
    Also, “ The Erie canal upon this level is open for navigation from about the first day of May until the first day of December in every year, varying a few days from the dates mentioned, according as the weather may be at the time. These periods of navigation average seven months in a year. During the five months of December, January, February, March and April of every year the canal is closed to navigation, and there is- no water supplied or required therefor from Skaneateles lake.”
    Also, “ During the season of canal navigation, covering an average period of seven months in each year, the quantity of water heretofore discharged by the State from the lake for the uses of the canal has varied more or less according to the condition of the lake. The average quantity thus taken from the lake for the uses of the canal during these seasons has been 70 million (70,000,000) gallons per day, except at times of high water and overflow of the dam; the quantity thus permitted to flow has at all times been regulated and determined by the gatetender under direction of superior State officers in charge of the canal.”
    Also, “During the seasons of closed navigation, averaging five months in every year, with the exception of times when, by reason of low water in the lake, or apprehensions of such, the State officers in charge of the canal have withheld the water wholly for the purposes of storage, the State authorities have permitted a flow and discharge from the lake through the outlet upon an average about 48 million (48,000,000) gallons per day.”
    Also, “ The water thus discharged from the lake into the outlet during the seasons or periods of canal navigation, together with that supplied by the watershed of the outlet during the same periods, has ordinarily been more than sufficient to supply the mills upon the outlet with the water used for their machinery and other purposes. A considerable quantity, the amount of which cannot be definitely ascertained, ordinarily flows over the crest or spillways of the dams at the several mills upon the outlet, and, so far as the mill owners are concerned, has gone to waste, not being used by them.”
    It was also found that “ the available supply of water from the entire watershed of Skaneateles lake, which finds its way into and becomes a part of the lake, upon the average for a series of years, is an amount equivalent, if equally distributed, to 61 million (61,000,000) gallons every day. The maximum carrying capacity of the proposed thirty-inch conduit from Skaneateles lake to the reservoir at or near Syracuse is fifteen million gallons per day. A draught of 15 million gallons daily from Skaneateles lake would lower the level of the lake at tlie rat,e of two inches per month, or twenty-four inches in a year, provided no supply was in the meantime furnished or discharged into the lake.”
    Among the conclusions of law it was found that the State of New York “has acquired the use and the right of use of Skaneatcles lake as a reservoir, and of its outlet as a feeder for the purpose of supplying the Erie canal with water. It has the right to, at any and all times, withhold within the lake for storage purposes so much of the waters thereof as may be reasonably necessary to provide for the requirements of the canal. It has the right to discharge therefrom, dining the seasons of navigation, so much thereof as may be reasonably necessary for the supply of the canal. This right of storage on the part of the State is not inconsistent with the right of storage sought by the city of Syracuse in this proceeding.
    Upon making compensation tlierfefor the city of Syracuse is entitled in this proceeding to condemn and acquire or extinguish all the rights, title and interest which the defendants, and each of them respectively, have, of, in and to the waters of Skaneateles lake and its watershed, and to any and all use and enjoyment thereof, by reason of their ownership of or interest in the premises severally described in the amended petition herein, and as appurtenant or incident to said premises, for the purpose of supplying said city and its inhabitants with water, excepting only such and so much water from said lake as may be permitted or caused to flow from said lake into the outlet thereof from time to time, by the State of New York, its officers and agents, for the purpose of supplying the Erie canal with water. And excepting also such water as ma/y from time to time, from any cause, escape from said lalee, and be discharged therefrom into the outlet?'

    The Special Term further found and decided as conclusion of law “that the acquisition and extinguishment of the defendants’ rights, as above defined and set forth, is the acquisition or extinguishment contemplated and required by chapter 314 of the Laws of 1890. . That the condemnation hereby authorized is for a public use, and for the purposes contemplated by the laws hereinbefore referred to.”
    It was also found that the plaintiff was entitled to the appointment of three commissioners, “ who shall ascertain, determine and report the compensation which ought justly to ■ be made to the owners and persons interested, for the property and rights to be taken for the public use specified.”
    The findings of fact and law were signed on the 26th day of January, 1893, and on the twenty-eighth of January a judgment thereon was entered, among other things, adjudging that upon making compensation therefor the city is entitled in this proceeding “ to condemn and acquire or extinguish all the rights, title and interest which the defendants and each of them respectively have, of, in and to the waters of Skaneateles lake and its watershed, and to any aud all use and enjoyment thereof, by reason of their ownership of, or interest in, the premises severally described in the amended petition herein, and as appurtenant or incident to said premises, for the purpose of supplying said city and its inhabitants with water, excepting only such aoid so much water from said lake as may be permitted or caused to flow from said lake into the outlet thereof from time to time, by the State of New York, its officers and agents, for the purpose of supplying the Erie canal with water. And excepting only such water as may from time to time from any cause escape from said lake, and be discharged therefrom into the outlet.” And it was adjudged that the city is entitled to this proceeding, as against the defendants “ To condemn and acquire the right to increase the storage capacity of Skaneateles lake sufficiently to retain therein all the ordinary flow from the watershed, cmd to at all times store and retain therein so much thereof as shall o%ot T)e required for the Erie canal; and subject to the rights of the State to use the same for the supply of the Erie canal, to divert therefrom at all times so much thereof as may be necessary to supply the city of Syracuse and its inhabitants with water.” And it was also adjudged “ That the acquisition and extinguishment of the defendants’ rights as above defined and set forth, is the acquisition or extinguishment contemplated and required by chapter 314 of the Laws of 1890.” And it was further adjudged “ That the plaintiff is entitled to condemn and acquire and extinguish all and several the rights, title and interest of the defendants * * * of, in and to the waters of Skaneateles lake and its watershed not required by the State of New York for the Erie canal, as the same flow or might otherwise flow in the outlet of said lake, and upon, along, over, eontiguous and appurtenant to the land and premises adjacent to said outlet described as follows : ” Similar language is used as to each parcel, and following the language is a description of the premises owned by the defendants.
    On the 30th of January, 1893, the Special Term granted an order designating the commissioners. That order was amended by the Special Term on the 8th of February, 1893, by striking out the name of Dyer as one of the commissioners, and inserting the name of Palmer as one of the commissioners instead thereof. The commissioners qualified and proceeeded to hear the parties and took voluminous proofs in respect to the several rights and ownerships of the parties, and on the 7th of May, 1894, executed and delivered their report, in which they certify that, having viewedvthe premises and heard the proofs and allegations of the parties, after the testimony was closed, all being present, they did “ Without any unnecessary delay, ascertain and determine the compensation which ought justly to be made by the city of Syracuse to the owners of such property and water rights and the persons interested therein.” And in their report they stated the amount which should be paid to the several owners of property, as will more fully appear by reference to their report.

      George Barrow, Knapp, Nottingha/rn c& Andrews and Charles Hawley, for the appellants.

      Charles L. Stone, WilUam A. Beach and George H. Kennedy, for the resjtondent.
   Hardin, P. J.:

Chapter 291 of the Laws of 1889 is entitled “ An act to establish and maintain a water department in and for the city of Syracuse.” The 3d section of the act authorizes and directs the water board for and in the name of the city of Syracuse “'to acquire, construct,' maintain, control and operate a system of water works to furnish the city of Syracuse and its inhabitants with water from Skaneateles lake.” In the 4th section of the act it was provided that in case the water board shall be unable to acquire by purchase “ any property necessary for the acquisition, construction, maintenance, control and operation of the system of water works contemplated by this act, including the property, rights of property, privileges and franchises owned or possessed by any corporation * * * it is hereby authorized to acquire the same in the manner following.” In the 5th section it is provided that the board may present its petition to the Supreme Court, at a General or Special Term thereof, praying for the appointment of commissioners of appraisal to ascertain and determine the amount of compensation which ought justly to be made to either or any of the owners or persons interested in any or all of the property, rights, privileges and franchises deemed necessary by the board. The section contains a further provision, viz.: “ It shall contain a description of the property sought to l>e acquired, and must state in effect that the property is requisite to the acquiring, constructing, improving, maintaining, controlling or operating said water works.” The section also provides for several other details to be inserted in the petition. Section 6 of the act provides how the petition shall be served. Section 7 confers upon the court power to appoint special guardians for infants and idiots, and section 8 provides “ any of the persons whose estates or interests are to be affected by the proceedings may show cause-, against granting the prayer of the petition, and may to that end disprove any of the facts alleged therein.” And it also provides “ the •. court shall hear the proofs and allegations of the parties, and if no suffi- - cient cause is shown against granting the prayer of the petition, it; shall make an order for the appointment of three disinterested and[ competent freeholders * * * to ascertain and determine the compensation which ought justly to be made to the owners or persons interested in the property so to be acquired.” Further provisions are found in the act regulating further proceedings. Section 18 of the act of 1889 was amended by chapter 314 of the Laws off 1890, and in the section as amended it was'provided, viz.: “Before any water shall be taken from Skaneateles lake under the provisions, of this act, the city of Syracuse shall acquire or extinguish all water, power rights upon the outlet of said lake to be affected by the proposed storage of water. The city .of Syracuse shall at all times protect and save harmless the State of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby. The powers granted to the Syracuse water board to acquire property under this act and to make payment therefor shall be deemed to include full power and authority to -do and perform all acts and things necessary or proper to enable said city to acquire, store and obtain water from Skaneateles lake in accordance with the provisions of this section.” Plaintiff’s petition was prepared and verified on the 14th day of November, 1892. Chapter 95 of the Laws of 1890 is entitled “An act to amend the Code of Civil Procedure,” and is known as chapter 23 of the Code of Civil Procedure, and the first section of the chapter provides, viz.: “ This title shall be known as the Condemnation Law.” The chapter contains twenty-eight sections, which are numbered as sections 3357 to 3397 of the Code inclusive, and in the last section of chapter 95 it is provided: “ This title shall take effect May'first, one thousand eight hundred and ninety.” In section 3383, as amended by chapter 247 of the Laws of 1890, it was provided that “so much of all acts and parts of acts as prescribe a method of procedure in proceedings for the condemnation of real property for a public use is repealed,” except such acts and parts of acts as prescribe a method of procedure in certain specified cases not important to be considered, as they do not relate to the case in hand. It was expressly provided in chapter 247 that that act should take effect immediately, and it was passed on the 30th day of April, 1890.

In Dansville, etc., R. R. Co. v. Hammond (77 Hun, 41) it was said: “A complete system of pi'actice in condemnation proceedings is provided by chapter 23 of the Code of Civil Procedure.”

In Matter of Trustees (137 N. Y. 97) chapter 23 of the Code of Civil Procedure was assumed to be a revision of the Condemnation Law.

Inasmuch as the plaintiff’s proceedings were instituted subsequent to the time when the provisions of the General Condemnation Law took effect, the provisions found therein should be applied to and control and govern such proceedings.

(2) Plaintiff, with a fixed purpose of acquiring benefits and privileges conferred by section 18, as amended in 1890, instituted the proceedings for the purpose of complying with that part of the section found in the following language : “ Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinquish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.”

In Sweet v. City of Syracuse (129 N. Y. 333) O’Brien, J., said: * Between the lake and the canal numerous mills are situated along the outlet, being supplied with power from the running water, and these are some of the water rights referred to in the statute which the city is bound to purchase or extinguish.” In the same case, at page 339, Earl, J., said: “ Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.” In further elucidation' of the provisions of section 18 the same learned judge said: “ The city of Syracuse shall, at all times, protect and save harmless the State of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby.” To avail of the provisions of the statute as thus interpreted was the purpose of the city in preparing the petition in this case, to the end that the rights of the several defendants might be condemned, and upon payment being made therefor that the same be extinguished or acquired by the plaintiff. After the petition was prepared and served, and the parties were given notice thereof and appeared in court, an application was made to amend the petition.

Section 3368 of the Condemnation Law provides that title 1 of chapter 8 of this act (the Code of Civil Procedure) shall also apply to proceedings had under this title. Upon turning to that chapter we find that it embraces, among others, sections 721, 722 and 723, which confer upon the court power to correct mistakes, omissions, defects and irregularities, and to amend any pleading or other proceeding by inserting an allegation material to the case. The court in granting the amendment asked for to the petition did not exceed its power. Upon turning to the petition, as amended, we find that it contains language inserted therein, as it must be assumed, for the purpose of describing, pursuant to section 3360 of the Code of Civil Procedure, the property, rights and interests sought to.be condemned. That section provides that the proceedings shall be instituted by presentation of a petition by the plaintiff “setting forth the following facts: * * * 2. A specific description of the property to be condemned, and its location by metes and bounds, with reasonable certainty. * * * 8. A demand for relief ; that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken!

In The Matter of Water Commissioners of Amsterdam (96 N. Y. 360) it was said: “ It has been uniformly held that, in proceedings of this character, extreme accuracy is essential for the protection of the rights of all parties. (Matter of the N. Y. C. & H. R. R. R. Co., 70 N. Y. 191.) There must be no uncertainty in the description of the property to be taken nor in the degree of interest to be acquired.” Section 18 of the act of 1890, already alluded to (Chap. 314), confers upon the water board power, “ under the restrictions and conditions hereinafter mentioned” in the statute, “to take and conduct water not required for the Erie canal from Skaneateles lake to said city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water. Before any water shall be so taken, however, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its watershed. * * * The dam, and all structures connected therewith, together with the regulation at all times of the flow of- water from said lake into the aforesaid pipe, shall be and continue in the exclusive charge and control of the superintendent of public works.” Further provisions are made as to the power of the State officers, and then it was declared, viz.: “ It being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters are to be subject always to the superior claims of the State thereto.” The act then provides further “restrictions and conditions” upon the power given to the city to take and conduct water not required for the Erie canal “ through a pipe or main not exceeding thirty inches in diameter ” in the following words: “ Before any water shall be taken from Skaneateles lake, under the provisions of this act, the city of Syracuse shall acqxuire or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.” Riparian owners upon the outlet have rights and privileges “ affected by the proposed storage of water,” and those rights the act authorized and required the city “ to acquire or extinguish ” before taking any water from the lake under the provisions of this act. The terms of the statute received construction in this court in Hall v. The City of Syracuse (71 Hun, 466), and it was there said: “ By chapter 291 of the Laws of 1889 the Syracuse water board was created and power was conferred upon it to acquire by purchase or condemnation, for and in the name of the city of Syracuse, any property necessary for the acquisition, construction, maintenance, control and operation of the system of water works contemplated by the act. By section 18 of this act, as amended in 1890 (Cliaj). 311), it was authorized, under certain conditions, to take water from the Skaneateles lake. One of the provisions of this section is that before any water shall be taken from Skaneateles lake, under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake, to be affected by the proposed storage of water.’ . It was also ]3rovided that the powers granted to the water board to acquire property under the act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary or proper to enable the city to obtain water from the lake under the provisions of the amended section.” It may be observed that the act does not in terms define the water rights and privileges of tire owners upon the outlet, but carefully provides that whatever rights they have effected by the storage or taking authorized shall be acquired or extinguished before any water shall be taken under the provisions of the act. According to this compact entered into by the city with the State by accepting the provisions of the act, it becomes clearly the imperative duty of the city to acquire and extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.” As we have already mentioned, one of the restrictions and conditions imposed upon the city precedent to the right to take any of the surplus waters was the requirement that the city increase the stor. age capacity of said lake sufficiently to store therein all the ordinary flow of its watershed. To enable the plaintiff to comply with the requirements of the act its petition should describe and specify, all the water-power rights affected by the proposed storage and taking of water from the lake. It seems reasonable to suppose the Legislature contemplated the necessity of extinguishing all the water powers and rights upon the outlet, and because of that necessity required, among the restrictions and conditions imposed upon the city, the one which could be complied with only by acquiring or extinguishing of such rights and powers. The petition as it was after being amended, and as it was precisely when the Special Term pronounced its judgment, in which it was determined that the property named therein was required for public use, and that the city was authorized to condemn, did not describe in clear and definite language all the water power rights of the several defendants owning property upon the outlet mentioned in the petition and the schedules thereto. In the seventh subdivision of the petition the following language is found: “ Said city of Syracuse hereby asks to condemn and acquire all the property, rights, title and interest of the defendants and every of them, of, in and to the waters of Skaneateles lake and its watershed not required by the State of New York for the Erie canal, and to any part and use thereof as the same flows or might flow through the outlet of said lake, along, over, upon, contiguous and appurtenant to said parcels respectively, except for the use, diversion and storage thereof for the uses and purposes of the city of Syracuse and its inhabitants as a source of water supply as aforesaid.” In the prayer of the petition it was asked that it may be adjudged that the public use requires the condemnation of all the right, title and interest of the defendants respectively and every of them of, in and to the waters of Skaneateles lake and its watershed, as the same flow or might otherwise flow in the outlet of said lake, and upon, along, over, contiguous and appurtenant to the several parcels of land described in the schedules hereof owned by them respectively, or in which they have any interest, except so much thereof as from time to time by lawful authority of the State of New Norle and its representatives, may be discharged from said lake and permitted to flow through the outlet thereof for the purpose of supplying the Erie canal; and that the plaintiff is entitled to take, hold and forever enjoy the right to store, divert and use the waters of Skaneateles labe as a reservoir and source of water supply for tbe city of Syracuse and its inhabitants, as aforesaid, except so much thereof as from time to time hy lawful authority of the State of JYew York and its officers may be discharged from said lake and permitted to flow through the outlet thereof for the purpose of supplying the Erie canal.” In the schedules, after referring specifically to the property of each defendant, it was said : “ The plaintiff asks to condemn and acquire all and several the rights, title and interest of the defendants * * * of, in and to the waters of Skaneateles lake and its watershed not required by the State of New York for the Erie canal, as the same flow or might otherwise flow in the outlet of said lake, and upon, along, over, contiguous and appurtenant to the land and premises adjacent to said outlet.” Then follow descriptions of the sundry parcels owned by the several defendants against whom the proceedings were instituted. Notwithstanding the interpretation given to section 18 of the act of 1889, as amended by chapter 311 of the Laws of 1890, at the trial term, and the construction of the amended petition found in the judgment entered upon the decision made at the • trial term, extensive discussions were held before the commissioners as to the aneaning of the language used in the petition so far-as it relates to a description of the property and water lights specified and required to be obtained by the provisions of the act; the commissioners before closing their awards inserted therein the following language: “The foregoing awai’ds of compensation are based upon an appropriation by the city of Syracuse of all the water rights of the several claimants of, in and to-the waters of Skaneateles lake and its watershed, with the light to store in said lake and to divert therefrom, as may at any time be authorized by law, so much of the waters of said lake and its watershed as shall not be required by the State of New York for the Erie canal.” As already stated, section 3360 of the Code requires the petition to contain “ a specific description of the property to be condemned and its location, by metes and bounds, with reasonable certainty ; ” and subdivision 8 provides that the demand for relief shall be for the condemnation “ of the real property described; ” and that commissioners of appraisal be appointed to ascertain the compensation to be made “to the owners for the property so taken.” It was the duty of the plaintiff to obey the provisions of the statute and implicitly and accurately follow its requirements. In doing so it was its duty to insei’t an accurate, specific description, with reasonable certainty, of the precise property rights to be condemned, to the end that the proceedings should comply with the statute and the defendants be enabled by the petition to understand just what was sought to be taken from them and just what would be left, if anything, after the taking had been had under the proceedings instituted by the petition. The ownership which the defendants have in the water flow and water rights is a corporeal right, “ an incident of property in, and parcel of the laud ” owned by them. (Scriver v. Smith, 100 N. Y. 471; Angell on Water Courses, § 90.)

In Matter of N. Y. C. R. R. Co. (70 N. Y. 191) it was said there must be no uncertainty in the description nor in the degree of interest to be acquired. To the same effect is Matter of Water Commissioners of Amsterdam (96 N. Y. 361).

In Hayden v. State (132 N. Y. 533) it was held that where a permanent appropriation is sought to be had of land or water “ the quantity must be definitely ascertained and described so that the owner may know how much he has lost and wliat he is entitled to be compensated for.” And in the course of the opinion it was said “ if the water to be appropriated is described as all in a.certain lake, or all flowing in a particular stream, such would undoubtedly be a sufficiently definite description. But in this case the resolution did not state that all of the water of the outlet, or that any particular quantity or part of it was appropriated, and the description was too indefinite to effect a legal appropriation.”

In People ex rel. Eckerson v. Trustees (137 N. Y. 88) a statute authorizing condemnation proceedings was under consideration, and Andrews, Ch. J., observed: “ The statute can only be satisfied by

a reasonably accurate description by boundaries or fixed monuments ; ” and in that case it was intimated that the difficulty was not cured because, in the course of the hearing, .tlie claim of the petitioner was limited “ to a strip of land ninety feet in length.”

In Metropolitan El. Ry. Co. v. Dominick (55 Hun, 199) condemnation proceedings were brought in review, and it was there held that in a proceeding “To condemn property rights extreme accuracy is required in the description of the property sought to be acquired, and tliere must be no uncertainty in such description or in the degree of interest sought to be acquired.” In the course of the opinion in that case it was said : “ The property owner’s rights should not be left even to doubtful, though plausible, construction.” It was claimed by the learned counsel for the plaintiff before the Special Term, and before the commissioners and has been argued before this court that the “ Appropriation by the State in 1843 of the Skaneateles waters cut off the rights of riparian owners along the outlet; ” and a similar claim was made by the Attorney-General in behalf of the State in the case of Waller v. State (144 N. Y. 579, 593). That claim has been refuted by the Court of Appeals (since the decision of this case at Special Term) and that court has held “That the rights of the owners on the stream below were not included in the words of appropriation in the resolution of the Canal Board, and so they had no grounds upon which to base an appearance and claim any permanent damage to their rights.” In the course of the opinion of Peckham, J., delivered in that case, he said : “"We do not think that by the action of the Canal Board or the Canal Commissioners, or their combined action, these rights of the owners upon the stream below were included in the words of appropriation in the resolution of the Canal Board. Therefore, neither they nor their predecessors had any ground upon which to base an appearance before the Canal Appraisers and attempt to prove any permanent damage to their rights by virtue of the resolution of appropriation. The appropriation did not touch them or their rights. * * This policy on the part of the State not to then take the rights of the riparian owners farther down the stream was not unwise at the time. For more than twenty years after the appropriation as stated, there was no trouble with these owners, and the State had all the water it required. And for more than twenty years in addition the occasions have been few for withholding the water to the damage of the owners. It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present. The State continued on, 'therefore, and when the necessity arose for temporarily withholding water it was done, its liability for the damage it thus caused was acknowledged, and it was paid under legislative sanction. It is conceded that the State has never in fact paid for the permanent appropriation of these rights, and we find no hardship in making it liable for causing them temporary damage since the last payment on that account. * * * The act itself, however, which enabled the city of Syracuse to take the water upon conditions specified, recognizes that there might be important rights on the part of these lower owners on the stream, and indeed the act seems to assume that there were, and it provides that the city shall not go on with the construction of the work, unless, under certain circumstances, those rights are extinguished, as provided for in the act.” That opinion comes to the conclusion that “the claimants made out a good cause of action against the State for damages sustained by them by the withholding of the waters from the Skaneateles creek” (or outlet) in 1S92, as described in their plaims. It seems as between the plaintiff and the defendants, the defendants as owners were entitled to' a free and uninterrupted flow of the water in the outlet without any interference, diminution or depreciation thereof on the part of the State, until the water-power rights and privileges were acquired and extinguished by the city. The Legislature is the sole judge of the expediency of allowing an interference with the natural rights of the citizens of the State in water powers and rights owned by them, and as to the expediency of exercising the right of eminent domain for any public purpose. (Varick v. Smith, 5 Paige, 137.)

In Matter of Poughkeepsie Bridge Company (108 N. Y. 490) Andrews, J., said : “ The power of eminent domain which resides in the State as an attribute of sovereignty is, nevertheless, dormant until called into exercise by an act of the Legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient, and the State can neither exercise the prerogative, nor can it delegate its exercise, except through the medium of legislation. Therefore, it is that wherever an attempt is made either by the officers of the State or by a corporation organized for a public purpose to take private property under the power of eminent domain, the officers or body claiming the right must be able to point to a statute conferring it. In the absence of statutory authority private property cannot be invaded by this power, however strong may be the reasons for the appropriation. In construing statutes which are claimed to authorize the exercise of the power of eminent domain, a strict rather than a liberal construction is the rule. Such statutes assume to call into active operation a power which, however essential to the existence of the government, is in derogation of the ordinary rights of. private ownership and of the control which an owner usually has of his property.” Under that wholesome doctrine it is not unreasonable to exact of the petitioner in this case that it should fulfill and carry out all the conditions and restrictions imposed upon it by the legislative acts under which it seeks to derive important and valuable rights and privileges. So far as the conditions and restrictions found in the statute relate to the rights of the defendants, they are entitled to have the full benefit thereof. Nor does the fact that the Legislature authorized the plaintiff to take by means of a conduit, with thirty-inch carrying capacity, which would be about 15,000,000 gallons per day, deprive the defendants of the right to have the full benefit of the restrictions and conditions named in the act carried out, and that the acquisition or extinguishment shall be of all water powers and water rights upon the outlet. Earl, J., in speaking of the acts authorizing the city to acquire water, says, in Sweet v. The City of Syracuse (supra): “ The right given to the city of Syracuse to draw water from the lake is, as we have seen, in its very largest extent, a mere license to be exercised under the constant supervision of the State, and subject to its paramount right and control. * * * This is not a gratuitous appropriation. The city is to increase the storage capacity of the lake, and erect and maintain at its own expense a dam and the structures connected therewith. There are two parties to the bargain, each of which gets soma advantage.” And it was competent for the Legislature to enact that “ before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.”

Judge Peckham, at page 599 of Waller v. State (supra), distinctly assumes that the State had not acquired the rights of riparian owners upon the outlet. He says: “ This policy on the part of the State not to then take the rights of the riparian owners farther down the stream was not unwise at the time. * * * It would probably liave been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present.” It was competent for the Legislature, in 1890, in amending section 18, to declare the necessity, and by imperative requirement, as a condition of the license then given to the city and to burden it with the duty, “ acquire or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.”

Neither the petition, the findings of the trial court, the judgment nor the award of the commissioners “ specify ” or “ describe ” definitely and certainly the quantity of water necessary for the Erie canal. The canal is some nine miles from the lake, and it is supposed that the water that passes from the lake goes down along the outlet before it reaches the canal, requiring a lapse of something like twelve hours’ time. In the language used by the learned Attorney-General in another forum, it may be properly said: “The quantity of water used for the canal is necessarily uncertain, depending on the volume of commerce and accidents to the canal banks.” The theory of the plaintiff, as evinced by its petition and announced at the trial term, and as indicated by the decision and judgment thereof, as well as the special language found in the awards, seems to be based upon the idea that the State, by virtue of the resolution of 1843, worked air invasion of and an acquisition of the original water rights and privileges of the owners of the lands upon the outlet. _he logic and theory of the opinion in Waller v. State (supra) are adverse to such theory, as in the latter case the court held: “ The rights of tlie owners on the stream below were not included in the words of appropriation in the resolution of the canal board.” It has been repeatedly held that the right to divert the waters from a natural stream “ can only be acquired under and by virtue of ■ the sovereign right of eminent domain, and upon making just compensation.” (Varick v. Smith, 5 Paige, 137; Clinton v. Myers, 46 N. Y. 511; Scriver v. Smith, 100 id. 471; Smith v. City of Rochester, 92 id. 463, and cases cited in the opinion of Ruger, Ch. J.) The doctrine of the cases just mentioned was referred to with approval in Hardin v. Jordan (140 U. S. 394).

The acts of 1889 and 1890 authorized the plaintiff, in furtherance of its system of water works, to bring to its aid the power of eminent domain, it being competent for the Legislature to give such power. (Matter of Application of Union Ferry Company, 98 N. Y. 153.) The proceedings instituted by the plaintiff rest upon those acts and the general Condemnation Law found in the Code.

The logic and doctrine of the opinion delivered in Waller v. State (supra) (since the trial and decision of these cases at Special Term), and the views herein expressed lead to the conclusion that, under the peculiar circumstances of these cases, the judgment at Special Term, and the awards and order confirming the same, should be reversed as to the appellants. However, the petitioner may be able to supply the necessary averments, and may also be able to cure the defects of description, and it should, therefore, have leave, if so advised, to apply at Special Term with the proper papers for the amendment of the present petition and proceedings. If such amendment be granted the present proceedings may stand and be continued as to the appellants.

Martin and Merwin, JJ., concurred.

The order so far as appealed from reversed, with ten dollars costs and disbursements, and appraisal vacated, and judgment reversed, Avith costs of the appeal to the appellants and a new trial granted, if plaintiff elects Avithin thirty days after the entry of an order upon this decision to proceed with the proceedings, and applies for leave to amend its petition. If such leaA’n is not applied for or granted, the petition is dismissed, with costs of this appeal and the trial court.


text:
    Thomas P. Higgins, Respondent, v. E. M. Dakin, Appellant.

      Action for a penalty — strict proof required — belief of a witness incompetent — Lems o/1893, chap. 319.
    Where a person sues to recover a penalty he should be required to clearly establish the fact that the defendant himself has violated the statute under which the action is brought.
    In an action brought under chapter 319 of the Laws of 1893 to recover a penalty for the alleged use of a certain counterfeit or colorable imitation of a label adopted by a cigarmakers’ union, it is improper to allow a witness for the plaintiff to state Avhether at the time he purchased certain cigars of the defendant he understood and believed that they were union-made cigars, and that the label attached was the genuine label of the cigarmakers’ union.

      Appeal by the defendant, E. NX. Dakin, from a judgment of the Otsego County Court in favor of the plaintiff, entered in the office of the clerk of said county on the ltth day of October, 1894, upon the decision of that court affirming a judgment of a justice of the peace of the town of Oneonta, Otsego county.

      Gibbs c& Wilbur, for the appellant.

      W. J. Palmer and Tracy Beclcer, for the respondent.
   Hardin, P. J.:

The plaintiff, in his complaint, alleges that he was a member of a union or association of workingmen, duly incorporated under and in pursuance of the laws of the State of New York, under the corporate name of the Cigarmakers’ International Union of America. That the said union or association of workingmen has adopted a certain label or device, intended by them to designate the product of the labors of members of such union, and that copies thereof had been filed with the Secretary of State as required by law. The complaint further alleges that on the 15th of August, 1893, at the town of Oneonta, the above-named defendant wrongfully did use, sell and expose for sale certain counterfeit or colorable imitations of the said label or device so adopted by said union or association of workingmen,” contrary to the provisions of chapter 219 of the laws of 1893, and that by reason thereof the defendant is indebted to the plaintiff in the penalty of the sum of $200. The answer contained a general denial.

Chapter 219 of the Laws of 1893 provides, viz.: Any person who shall hereafter use, manufacture, display or keep for sale any counterfeit or colorable imitation of any label, mark, name, brand or device adopted by any union or association of workingmen or women, and intended by them to designate the products of the labor of members of such union or association of workingmen or women, and copies of which have been filed in the office of the Secretary of State, as provided in chapter three hundred and eighty-five of the laws of eighteen hundred and eighty-nine, shall be subject to a penalty of two hundred dollars. * * * ” Under the plaintiff’s ■complaint the question to be determined was, did the defendant ■“ use, sell and expose for sale certain counterfeit or colorable imitations of the said label or device so adopted by said union.” The evidence given by the plaintiff to establish an affirmative solution of the question was given by Thomas Marsh, who testified that on the fifteenth of August, at his store, he purchased of the defendant 250 Fifth Avenue and 250 Agnes .Booth cigars. The witness further testified: “"We spoke about union-made cigars. That‘ 5th Ave.’ were union-made cigars, and gave him an order for 250 as union-made cigars; the ‘Agnes Booth ’ I got it job lot; they were to be shipped to me; subsequently I received goods. (Package shown witness.)' They were contained in package similar to this shown me and purported to have attached union label on box on each pack. The 250 ‘5th Ave.’s’ were put up in packages of 50 each (5 packages).” In the course of the witness’ cross-examination he said : “ I bought the goods from ITeert & Co., and from them I received these cigars. * * * I had conversation with defendant about cigars being union-made, and I purchased them as union-made. He did not deliver me any cigars. I knew at time the cigars I was purchasing, I was purchasing them of Heert & Co. Heert & Co. afterwards sent the cigars to me, and I paid Heert & Co. for the cigars. I cannot say that defendant displayed union label to me; I do not remember that defendant ever delivered package with union label on; I supposed he was acting as agent; ‘Agnes Booth ’ has no label on; to my best recollection I asked Dakin if the ‘ 5th Ave.’ cigars were union-made and he said yes; they would have the blue label on; I cannot say that defendant exhibited blue label to me.” The witness continuing said : “ Defendant never delivered a box of cigars to me with union label on.” At a later stage of the case the witness testified : “ The best of my recollection is that I did ask Dakin if the ‘ 5th Avenue ’ cigars were union-made and he replied they were, and they would have the blue label on. * * -x- q>0 ppe best of my knowledge, recollection and belief, there was something said about the cigars having the blue label on by Dakin at the time I purchased them.” After this evidence was given the defendant moved for a nonsuit, which was denied. We think the evidence was insufficient to establish that the defendant manufactured, displayed, kept for sale or used “ any counterfeit or colorable imitation of any label.” A fair consideration of his testimony requires that that part which makes in favor of the defendant should be considered as well as that which might be construed as being adverse to liim. There is no. evidence to indicate that the defendant did not send forward an order for goods to be shipped to-the purchaser with just the label he represented, or that he forwarded an order for goods not union-made. Inasmuch as this is. •an action to recover for a penalty, evidence should be required of' the plaintiff to establish that the defendant himself has clearly violated the statute which gives a right to a recovery. (Canastota & Morrisville Plank Road Co. v. Parkill, 50 Barb. 601.)

The case in hand is quite unlike The People v. Adams (3 Den. 190). If this action had been brought against Heert & Co., the case cited would be more in point.

(2), The trial court erred in overruling objections to question put. to Marsh, in the following language: “ Q. State at time you purchased these cigars, whether or not you understood and believed they were union-made cigars and that the label attached to pack was-the genuine label of the Cigar Makers’ Union ?” (Wilder v. Peabody, 21 Hun, 376; Matter of N. Y., West Shore & B. R. Co., 33 id. 231, and cases there cited.) The foregoing views lead to a reversal.

Martin and Merwin, JJ., concurred.

Judgment of the County Court, affirming a justice’s judgment, reversed, with costs, and the judgment of the Justice’s Court, reversed, with costs.