Misc.] Supreme Court, April, 1900. payment of alimony should be suspended until the final trial and determination of the action has been had at the Equity Term, and at that time the question of alimony should be finally settled. 2. Divorce - Verdict, how far conclusive. Semble, that in an action for a divorce, the verdict of the jury is not simply advisory but is conclusive unless it is set aside or a new trial is granted. MOTION to set aside an order granting alimony and counsel fee. Hirsh & Ehrhorn, for motion. W. R. Spooner, opposed. GILDERSLEEVE, J. The plaintiff brought this action for a separation from her husband on the ground of cruel and inhuman conduct. The answer denies the allegations of cruelty and sets up a counterclaim for an absolute divorce on the ground of plaintiff's alleged adultery. The reply denies this charge of adultery. On December 7, 1899, a motion was made for alimony and counsel fee; and on December fourteenth an order was entered, directing defendant to pay to plaintiff $10 a week alimony and $100 counsel fee. The defendant complied with this order until April fifteenth, when he failed to pay the installment of alimony then due, and he has also failed to pay $20 of the $100 allowed as counsel fee, which fee he was permitted to pay by installments. On the said seventh day of December the plaintiff also made a motion to have the issue of adultery tried before a jury, and an order granting said motion was duly entered. The defendant now makes this motion to set aside or modify the said order of December fourteenth on account of the following events, which have transpired since the granting of such order, viz.: On March 31, 1900, the defendant, who was employed in the post-office, was arrested and placed in Ludlow Street Jail on the charge of purloining money from the mails. Not being able to procure bail, the defendant is still incarcerated in prison, and claims that all means of support have been cut off. The only affidavit on this motion is made by the defendant's attorney, and no reason is given why it was not made by the defendant himself. The allegations of the affidavit, however, are not denied or called in question by the plaintiff, who has submitted no affi Supreme Court, April, 1900. [Vol. 31. davit in opposition to this motion, although she has appeared by her attorney to oppose the same. The inference to be drawn from the affidavit of the defendant's attorney, who states that he has personal knowledge of the facts alleged therein, is that defendant's salary has been suspended, although it is not precisely so stated. On April 12, 1900, the issue of plaintiff's alleged adultery was duly tried before Mr. Justice McAdam and a jury, when the said jury found, as a matter of fact, that plaintiff has been guilty of adultery. While it is true that, in equity cases generally, where certain issues are submitted to a jury, the findings of the jury are not binding on the court, but are merely an aid to the court, and may be set aside in whole or in part, as the court thinks proper (See Hammond v. Morgan, 101 N. Y. 186, 187); still that rule does not apply to actions for divorce, as in such a case the verdict of the jury is not simply advisory, but it is conclusive, unless set aside or unless a new trial is granted. See Carpenter v. Carpenter, 9 N. Y. Supp. 583, 584, General Term, Fifth Department, Dwight, P. J. For the purposes of this motion, therefore, it is urged that we may assume that the plaintiff is guilty of the charge. It was held, however, many years ago, in the case of Stanford v. Stanford, 1 Edw. Ch. 317, that where a jury had found the wife guilty of adultery on the issue submitted to them, but the court had not rendered final judgment, the wife was still entitled to have the alimony, previously awarded to her, pendente lite. It is also true that where an appeal has been taken in good faith from a judgment finding the wife guilty of adultery, and the court is of opinion that the appellant has a fair chance of success on such appeal, alimony may be allowed pending the appeal. In the case at bar, however, the action has not yet come on for final trial and determination at Equity Term. It seems to me, in view of the undisputed fact that the defendant is in jail, without means of support, and also in consideration of the fact that a jury have found the plaintiff to be guilty of adultery, that the further payment of alimony should be suspended until the trial and determination of the action, when the court will make such disposition of the matter as may be just. Motion granted. No costs. Misc.] Supreme Court, April, 1900. PATRICK BURNS, Plaintiff, v. THE CITY OF NEW YORK, Defendant. (Supreme Court, New York Trial Term, April, 1900.) Where a city contract for excavating provides that excavated materials shall conform to such lines and levels as may be given by the engineer in charge and be deposited at such places as he may direct, the contractor, after having been paid for excavating, cannot claim to be paid again for embankment merely because he deposited the excavated materials, which were the property of the city, at other points of the embankment where he was directed to deposit them. 2. Same Certificate of engineer. Where a contract appoints the engineer in charge as the final arbiter between the parties, his certificate is conclusive unless he has been guilty of fraud or misconduct. ACTION to recover balance claimed to be due under contract for work done. James A. Dunn, for plaintiff. John Whalen, Corporation Counsel, for defendant. MCADAM, J. The action is to recover $467, as compensation for constructing 934 cubic yards of embankment at 50 cents per cubic yard. The plaintiff excavated these 934 yards of material and was paid for excavating the same. Section 4 of the specifications provides that "earth excavation will include the excavation of all materials not included in rock excavation. They shall conform to such lines and levels as may be given by the engineer and deposited at such places as he may direct." Pursuant to this provision this excavated material (which by the contract was the property of the city) was, by direction of the engineer, de posited by the plaintiff on the line and level of the embankment, but formed no part of the embankment itself, for which the 50 cents per cubic yard was to be paid. To hold otherwise, would compel the city to pay twice for the same 934 cubic yards of [Vol. 31. Supreme Court, April, 1900. earth; once as excavation and again as embankment. Such a result was not within the contemplation of the parties. But, even assuming that the claim made was one open to doubt, the dispute has already been decided adversely to the plaintiff by the engineer in charge of the work, upon whom authority to determine the question was conferred by the following special provision of the contract: "To prevent all disputes and litigation.. it is further agreed by and between the parties to this contract that said engineer shall, in all cases, determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof; and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive upon the contractor; and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the party of the second part to receive any money under this agreement." Having been selected by both parties as the final arbiter, the decision of the engineer is conclusive, there being no evidence of fraud or misconduct on his part. Smith v. Mayor, 12 App. Div. 391; Quinn v. Mayor, 16 id. 408; Perkins v. Giles, 50 N. Y. 228; Sweet v. Morrison, 116 id. 19, and kindred cases. The plaintiff has been paid according to the final certificate of the engineer, and has no cause of action against the defendant. follows that the complaint must be dismissed, with costs. Complaint dismissed, with costs. It THE OLD FORGE Co. et al., Plaintiffs, v. WILLIAM SEWARD WEBB et al., Defendants. (Supreme Court, Onondaga Special Term, April, 1900.) Action by hotel corporation to abate public nuisance caused by alleged wrongful construction in the Forest Preserve of a railroad which injures the business of the hotel - Obstruction of highway at a distance from the hotel. A summer hotel corporation may not maintain an action to enjoiu the alleged wrongful construction over lands of the Forest Preserve Mise.] Supreme Court, April, 1900. of a railroad which is likely, by diverting summer travel, to injure the business of the hotel. Such an act does not cause such separate and peculiar injury distinct from and received by the public at large as justifies a suit by an individual to abate a public nuisance. Nor is such injury shown by the further fact that a highway connecting with the hotel, but not constituting the only or shortest means of access to it, has been unlawfully obstructed at a point several miles beyond the hotel, and that thereby travel thereon has been impaired or prevented. DEMURRER to the complaint herein on the ground, among others, that it does not state facts sufficient to constitute a cause of action. C. D. Adams, for plaintiffs. C. C. Snyder and F. G. Fincke, for defendants. ANDREWS, W. S., J. It appears from the complaint and the papers therein referred to, that the Old Forge Company owns a large hotel at the foot of the Fulton chain of lakes in Herkimer county. In the neighborhood of its hotel, it has laid out its lands in building lots, many of which it still retains. These lots have become valuable. The hotel is about two and a half miles distant from Fulton Chain station on the Mohawk and Malone railroad. The two points are connected by a steam railroad, which the Fulton Chain Railroad Company has built. Running from the hotel and through First, Second, Third and to Eagle bay, at the head of Fourth lake, the Crosby Transportation Company maintains a line of steamers for the carriage of passengers and freight. Parallel with the line of lakes a public highway runs from the hotel to Eagle bay. The latter point is on the line dividing Herkimer county from Hamilton county. To the east of Fourth lake and at a distance of some ten or twelve miles, lies Racquette lake, and still further to the east Blue Mountain and Long lakes. All these lakes have become popular summer resorts, and one. of the principal means of access to them is by Fulton Chain station and the Fulton Chain railroad. Many stay at the hotel of the Old Forge Company. Others using either the boats of the Crosby Transportation Company, or the highway pass on to one of the |