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Attention may be called briefly to the salient points in the evidence, which, as we think, under the authorities referred to, fully justify the conclusion reached by the referee. Stephen M. Newton, the father of the plaintiff, became the owner of the Newton farm, so called, between the years 1862 and 1868, and soon thereafter commenced to lay out streets, among others Newton street, across the farm. For a time Newton street was practically a lane, the full width of a street, but having bars across it which excluded the public from its use. In about 1873 or 1874 all such bars or cross-fences upon Newton street were removed, and the public were permitted to use and travel upon it without let or hindrance from that time until the present. turnpiked by plaintiff's predecessor and made reasonably suitable for public travel, and it connected with two principal streets of the defendant city. During all the years travel by the public upon such streeť was considerable to say the least. As to the extent there is a dispute in the evidence. Plaintiff's predecessor also during that time conveyed several lots abutting upon such street, and in such conveyances the property was described as bounded upon one side by Newton street. lt, however, does not appear that such lands had ever been plotted upon a map showing Newton street, or that any such map had ever been filed or recorded.

It also appears that during such time, at the request of plaintiff's predecessor and of the persons to whom he had sold lots abutting upon such street, the city authorities authorized the laying of a water pipe in said street, connecting with its mains, and which would furnish water to such property owners. It appears, however, that that was done upon the agreement of Newton that he would pay for the use of the water an amount sufficient to make a proper return to the city upon the money expended in furnishing the same. It appears that the city of Dunkirk had not worked upon or repaired the street to any considerable extent, but that practically all such work was done by Newton. It also appears that, shortly after the street was opened to the public, Newton caused signposts to be erected upon which it was stated that the street was private property. Those signposts had fallen into decay and the printing thereon had become illegible many years before the commencement of this action. In fact, the evidence tends to show very conclusively that Newton did intend to dedicate Newton street to the uninterrupted use of the traveling public, but sought to hedge such dedication about in such manner as that the city of Dunkirk should have no authority or control over the same, and should not be in a position to compel proper improvements thereon, the building of sewers, sidewalks, paving the same, etc. And really the question is whether the acts of Newton which tended under the authorities which we have cited to indicate an intention to dedicate to the public were rebutted and refuted as matter of law by other acts which might have a contrary meaning. It appears that, upon several occasions, the plaintiff's predecessor stated to third parties that Newton street was a public street. The only facts which tend to show that Newton did not intend to dedicate the property in question to the public use irrevocably and for all purposes was the erection by him of the signposts above referred to, and the fact that he himself kept the

and 140 New York State Reporter street in repair. In the case of Porter v. Village of Attica, 33 Hun, 605, it was held, in substance, that the fact of public user may constitute acceptance without formal action of the constituted authorities, and that, therefore, a municipality would be liable for an accident occurring upon such street precisely the same as if it had been formally accepted by the municipality. It seems to me illogical that an owner of private property may open a way over the same for the traveling public connecting with two principal streets in a city, and sell his property abutting upon such street in such manner as that between him and his grantees the same must be always kept open as a street, make application that he and his grantees be furnished water by such municipality, declare to his neighbors that the street in question is a public street, and then may be heard to claim that it is not such because of signs erected thereon many years before declaring that such street was private property.

All the facts and circumstances disclosed by the evidence in this case made the question of dedication one of fact, and we are not prepared to say that the finding of the referee that such dedication had been consummated prior to the commencement of this action is contrary to or against the weight of the evidence. It follows that the judgment appealed from should be affirmed, with costs.

Judgnient affirmed, with costs. All concur.

(121 App. Div. 487.)

O'NEIL V. NEW YORK & Q. C. RY. CO. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) CARRIERS-CARRIAGE OF PASSENGERS-ACTIONS FOR PERSONAL INJURIES-IN

STRUCTIONS-ABSOLUTE DUTY TO CARRY SAFELY.

In an action against a street railway company for injuries to a passenger, it was error to charge that the company was bound to carry plaintiff safely. · [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, 88 1085 1106.]

Appeal from Municipal Court.

Action by Margaret O'Neil against the New York & Queens County Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.

Van Vechten Veeder and Nathaniel S. Corwin, for appellant.
M. P. O'Connor and Geo. F. Hickey, for respondent.

GAYNOR, J. The plaintiff was hurt by the negligence of the defendant while it was carrying her as a passenger in its street car, as it is claimed. The trial justice persisted in charging the jury that the company was bound to carry her safely.

The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

(121 App. Div. 497.)

NORTON et al. v. KAIN et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. INJUNCTION-BREACH OF CONTRACT-FRAUD-ELEMENTS OF.

Allegations of representations by an owner of lots to induce a sale, that the use of the remaining lots was restricted to the erection of onefamily dwellings, will not warrant relief on the ground of fraud or estoppel, though the use was not so restricted, where it is not alleged that the representation was fraudulent, or that grantees relied on it, or were

deceived thereby. 2. FRAUDS, STATUTE OF-CREATION OF EASEMENTS.

Under Real Property Law, Laws 1896, p. 592, c. 547, § 207, providing that an estate or interest in real property other than a lease for one year cannot be created, unless by operation of law or in writing, and Id. p. 602, $ 224, making void a contract for the sale of any real property or Interest therein, unless in writing, a parol agreement by an owner of lots, to induce a sale, that no buildings other than one-family dwellings would be erected on the remaining lots, is void, and will not support an action to enjoin the erection of an apartment house thereon.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 94.)

Appeal from Special Term, Kings County.

Action by Samuel J. L. Norton and another against Louis Kain, sued as Louis Kane, impleaded with others. Judgment for plaintiffs, and Louis Kain appeals. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS,
MILLER, and GAYNOR, JJ.

Henry J. Davenport, for appellant.
Francis S. McDivitt, for respondents.

GAYNOR, J. The case comes down to this: The defendant Frank C. Kohart (and the appellant only represents him, as the trial judge found) owned four adjoining lots of land. He erected detached one family dwellings on two of them, and sold and conveyed one to each of the plaintiffs. To induce them to purchase he represented to them that each of the two remaining lots were restricted against the erection of any building thereon excepting a private residence like the two he had built, and promised that no other kind of building would be erected thereon. No covenant to this effect was put in the contracts of sale nor in the deeds of conveyance. This suit was brought to obtain a judgment perpetually restraining the said defendant from erecting an apartment house on his said land, and the plaintiff obtained judgment. The complaint is also on the ground of prior restrictive covenants running with the land, but such covenants had become extinct, and the judgment below was put upon the oral representation and promise only.

In respect. of the alleged representation that the land was restricted, it suffices that it is not alleged that such representation was fraudulent, or that the plaintiffs relied upon it or were deceived by it. It follows that no relief could be given under the head of fraud or of estoppel. The case came down, therefore, to the enforcement of the oral promise. That it was not a ground for the jurisdiction of equity

106 N.Y.S.-9

and 140 New York State Reporter cannot be gainsaid; it was void. Real Property Law, Laws 1896, pp. 592, 602, c. 547, S$ 207, 224. An easement in land can be created only by a grant. Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479; Newman v. Nellis, 97 N. Y. 285; Nellis v. Munson, 108 N. Y. 453, 15 N. E. 739; White v. Manhattan R. Co., 139 N. Y. 19, 34 N. E. 887. The case of Lewis v. Gollner, 129 N. Y. 227, 29 N. E. 81, 26 Am. St. Rep. 516, is not applicable. There one who was in the business of building flats made an agreement with the people of a neighborhood in consideration of the purchase by them of a plot of land he was about to devote to that use, and of a sum paid to him by them, that he would not thereafter erect any flat in that neighborhood. He was enjoined from violating his agreement. It was not a case of an easement in land at all, but of a valid agreement restraining the defendant in his business. There was a valid agreement for equity to enforce, while here there was not. There was also a valid agreement in Hodge v. Sloan, 107 N. Y. 244, 17 N. E. 335, 1 Am. St. Rep. 816, viz., in the deed itself. In Woodhaven Land Co. v. Solly, 148 N. Y. 42, 42 N. E. 404, the defendant built a house on the land on the faith of an oral agreement that the deed when delivered was to be without restrictions, and this gave equity jurisdiction to reform the deed as prayed for by the answer, instead of granting an injunction to prevent a violation of the restrictive covenant in the deed as delivered. The agreement was also deemed valid in Tallmadge v. East River Bank, 26 N. Y. 105, whether correctly or not, and in the cases cited in the opinion in that case there were valid agreements. If the complaint here alleged and was based on fraud or mistake, and a reformation of the deeds of conveyance was prayed for, a different case would be presented; but we have to take the issue as it is.

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur.

(121 App. Div. 499.)

STATE LINE TELEPHONE CO. V. ELLISON, Com'r, etc., et al.

(Supreme Court, Appellate Division, Second Department October 4, 1907.) 1. EMINENT DOMAIN_COMPENSATION PROPERTY SUBJECT TO COMPENSATION

PUBLIC PROPERTY.

Laws 1893, p. 317, c. 189, Laws 1883, p. 666, C. 490, and Laws 1877, p. 512, c. 445, provide that in the taking of land by New York City for its water supply the city may take the land in adjacent highways also, for sanitary reasons, but only to care for such highways and hold them in trust for the public use as highways. Transportation Corporations Law, Laws 1890, p. 1152, c. 566, § 102, grants leave, as to the state, to telephone companies to construct and maintain their fixtures over or under any public road, street, or highway. Held that, the city of New York having acquired a highway under chapters 189, 490, and 445, supra, the leave granted by section 102 applied, and hence the city was not entitled

to compensation for its use by a telephone company. 2. SAME.

That the city of New York also owned abutting land was immaterial, since compensation, when made to abutting owners, is for the land in the highway, and not the abutting land.

Appeal from Special Term, Westchester County.

Action by State Line Telephone Company against William B. Ellison, as commissioner of water supply, gas, and electricity of the city of New York, and another. From an order denying its motion to restrain defendants from interfering with the maintenance by plaintiff of its telephone poles and wires on a highway in Putnam county, plaintiff appeals. Reversed, and motion granted.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

Frank B. Vermilya and William D. Veeder, for appellant.
I. J. Beaudrias, for respondent.

GAYNOR, J. By Transportation Corporations Law, Laws 1890, p. 1152, c. 566, § 102, leave is granted by the state to telegraph and telephone companies to construct and maintain their fixtures "over or under any of the public roads, streets and highways.” This is full permission without compensation so far as the state can give it. Where, however, the fee of the highway belongs to the abutting owners, instead of being in the state, or any of its political subdivisions or bodies politic, compensation to such owners has to be made for the easement taken by such companies. Eels v. Am. Tel. & Tel. Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640. In the taking of land in Putnam county for its water supply, the city of New York is permitted to take the land in the adjacent highways also, for sanitary reasons, but only to care for such highways and hold them in trust for the public use as highways. Chapter 445, p. 512, Laws of 1877; chapter 490, p. 666, Laws of 1883; chapter 189, p. 317, Laws of 1893. The highway over which the plaintiff seeks to run its telephone wires on poles was acquired by the city in that way. It follows that the section of the transportation corporations law already cited applies to it. To say that inasmuch as the city owns the abutting land also it is entitled to compensation may be specious, but not enough so to be misleading. That the city owns the abutting land does not make a difference, for the compensation, where it has to be given, is not given for the abutting land, but for the land in the highway, and here none can be exacted for the land in the highway, by reason of the leave granted by the statute. People v. Kerr, 27 N. Y. 188.

The order should be reversed, and the motion granted.

Order reversed with $10 costs and disbursements, and motion granted, with costs. All concur.

(121 App. Div. 398.)

In re MARLOR'S WILL. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) WILLS-VALIDITY-UNDUE INFLUENCE-PRESUMPTIONS.

That testatrix's will named her attorney as executor is not a suspicious circumstance, and does not raise a presumption of undue influence against

the will. Appeal from Surrogate's Court, Kings County.

Application by Seth R. Johnson, executor, for the probate of the will of Jane Ann Marlor, deceased. From a decree of the surrogate

*Modified in 106 N. Y. Supp. 1136.

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