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and 140 New York State Reporter face, in view of the testimony of one witness that this condition had been suffered to remain for four months and by another witness for one year. The general rule is well expressed in the case of Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, where the court say (page 70 of 148 N. Y., page 402 of 42 N. E.): .

"When the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have beeu reasonably anticipated from its existence or not, then the case is generally one for the jury; but when, as in this case, the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence, but still an accident happens, which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant's responsibility is one of law.”

The judgment and order must be affirmed, with costs. All concur.

(55 Misc. Rep. 119.)


(Supreme Court, Special Term, Essex County. June, 1907.)


Where fee of land over which the grantor claimed a right of way was conveyed to the grantee, it vested in him absolute ownership of the right

of way, except as restricted by a reservation in the deed. 2. EASEMENTS-OBSTRUCTIONS.

Where plaintiff conveyed a fee of certain land, reserving to himself a right of way over the same, defendant could place no obstruction upon the right of way which would interfere with its reasonable use by plaintiff, nor could plaintiff interfere with any use of the strip by the defendant, not interfering with his free passage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Easements, $8


Where an action is brought to enjoin the grantee from obstructing a right of way reserved to his grantor, and from using a hotel barn so as to be a nuisance, and after the action was brought the causes of complaint were removed, defendant is entitled to a judgment dismissing the complaint, but without costs.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 27, Injunction, $ 279.] Action by Harry Hale and others against George W. Jenkins. Judgment for defendant.

Pyrke & Dudley, for plaintiffs.
Frank B. Wicks, for defendant.

VAN KIRK, J. This action is brought to procure an injunction perpetually enjoining the defendant from obstructing a certain right of way belonging to the plaintiffs; also from using a hotel barn in such manner as to be a nuisance to the plaintiffs and their property. In 1873 there was a hotel property, with hotel building and barn on premises, in the village of Elizabethtown and on the southerly side of Maple avenue. These premises belonged to Robert S. Hale, the father of the plaintiffs, and did belong to him while such hotel business was being carried on and the barn in use for hotel purposes. In December, 1873,

Robert S. Hale deeded to Betsey C. Sherburne a part of said premises, across which the right of way in question extends. These premises adjoined the Lamson property, on the westerly side thereof. The hotel building was nioved to its present location on the premises conveyed to Betsey Sherburne, and so placed that, between the easterly side of the building and the westerly line of the Lamson lot, there was a passageway fourteen feet in width. In the deed from Hale to Sherburne is this provision:

"Reserving to said Hale, bis heirs and assigns, a right of way across the premises hereby granted from the highway adjacent to said Lamson's premises to the barn and premises now occupied by said Hale.”

This passageway between the Lamson line and the hotel building was continued across the Sherburne lot to the Hale premises where two gates were constructed, a large gate 11 feet in width and a small gate about 3 feet in width. This passageway has been used by both parties since the time of said deed, and as a right of way has been acquiesced in by both parties; and the right of way reserved in the deed is over the said 14-foot strip. The moving of the hotel building necessitated the moving of the hotel barn, which had formerly occupied the spot now occupied by the hotel building. The barn was placed near the southerly line of the lands conveyed to Betsey C. Sherburne and on the westerly side of the said 14-foot strip. The barnyard is on the southwesterly side of the barn, and is between the barn and the line of the Hale premises.

The plaintiffs complain, first, that the said right of way has been obstructed by wagons allowed to stand therein, by the construction of a carriage rack for washing carriages, by sawdust and ashes. They also claim that the barnyard is a nuisance, because it is offensive in the odors coming therefrom to the dwelling house and office on the plaintiffs' premises, and also because liquids, colored and tainted by manure, are allowed to flow therefrom on to the plaintiffs' premises.

As to the right of way: The fee of the land over which the right of way passes belongs to the defendant, the grantee by mesne conveyances of Robert S. Hale. This grant vested in the defendant the absolute ownership of this right of way, except as restricted by the reservation, which reservation, being in favor of the grantor, is to be construed most strongly against him. Grafton v. Moir, 130 N. Y. 465, 29 N. E. 974, 27 Am. St. Rep. 533. The width of this right of way was not defined in the reservation in the deed, but the acquiescence of the parties has designated a strip about 14 feet wide as a convenient passageway for both parties. The defendant has a right to use it as a right of way to and from his premises; and he has a right to use this land which he owns in any way he sees fit, provided he does not unreasonably interfere with the rights of the plaintiffs. The plaintiffs are entitled to a reasonable and convenient right of way to their premises from Maple avenue over this 14-foot strip. 130 N. Y. 471, 29 N. E. 974, 27 Am. St. Rep. 533. It was not contemplated that this should be the principal or general approach to the office or residence on plaintiffs' premises. It was to be a free passageway for persons or horses and wagons. It was never contemplated that there should be a paved driveway or

and 140 New York State Reporter separate sidewalk over this right of way. The defendant cannot place any obstruction upon this right of way which would interfere with its reasonable use by the plaintiffs; nor can the plaintiffs interfere with any use of this 14-foot strip by the defendant which does not interfere with their free passage. A few shovelsful of sawdust, which the evidence shows fell from the doorway of the icehouse adjoining this right of way, would not be an unreasonable interference; nor is the portion of an ash pile, the base edge of which during the course of the winter extended out a foot or two upon this 14-foot strip, unreasonable interference. There is no proof in the case that, at any time, the plaintiffs or any of their agents or employés have been obstructed or interfered with in their attempt to cross this right of way. I find nothing in the evidence which would justify the court in holding that the defendant, at the time of trial, was interfering with the reasonable use of this right of way by the plaintiffs or their servants.

As to the barnyard: The defendant is the owner by mesne conveyances of his premises in question from the predecessor in title of the plaintiffs. Defendant has the right to maintain a hotel and barn on the said premises. To use this barn for the stabling of horses is a lawful use. "When defendant purchased these premises from Mr. Robert S. Hale, it was contemplated that they should be used for hotel purposes, as a portion of them had been. The ownership of such property involves the right to use and enjoy the benefit of it in a reasonable manner, with due regard for the rights of neighbors. Not every use of the premises which might disturb or annoy a neighbor is an actionable nuisance. The question would seem to be whether or not defendant's manner of use of his barn and barnyard, at the time of the trial, was a violation of plaintiffs' rights, having regard to time, place, and circumstances. Undoubtedly such inconsiderate use of a barn may be made as to constitute an actionable nuisance, but the court cannot recognize a rule which would hold that barns cannot be used on private property in villages for stabling horses and cows. Such a rule would interfere with the uniform practice in villages. Allowing manure to accumulate, steam, and rot to such an extent as to render the use of adjoining premises uncomfortable and to fill the air with disagreeable odors, or to allow surface waters from the barnyard, discolored and saturated with manure, to run repeatedly or constantly upon a neighbor's premises, would be an actionable nuisance. One who invokes equitable relief submits to the rules governing equity courts, in which such relief is granted as the nature of the case and the facts at the close of the litigation demand. Peck v. Goodberlett, 109 N. Y. 180, 16 N. E. 350. The fact that a preliminary injunction has been issued during the pendency of the action in no way affects the decision upon the merits at the trial. The plaintiff must still bear the burden of proof to maintain the issues joined. From the evidence in the case disclosing the conditions at the time of the trial, it plainly appears that the defendant may use his right of way and his barnyard in such manner that it will not constitute an actionable nuisance. Booth v. Rome, Watertown & Ogdensburgh R. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552. As conditions appear at the time of the trial, I cannot hold that a right of action in the plaintiffs is shown, and the permanent

injunction asked for must be denied. Costs, however, will not be allowed to the defendant. He has, since the action began, removed the carriage rack, and has exercised more care in removing the manure, etc., from the barnyard than formerly, so that the same conditions do not exist as when the action was begun. Without holding that these changes made by the defendant constitute an admission of liability by the defendant because of his then use of the premises in question, these changes are a recognition that he might have made them before the action was begun. The defendant is entitled to a judgment dismissing the complaint, because the facts existing at the time of the trial fail to show that the action was maintainable, but without costs.

Judgment for defendant, without costs.

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(Supreme Court, Special Term, New York County. June, 1907.) INSANE PERSONS-INQUISITION-SETTING ASIDE DEFAULT.

A motion to open defendant's default, and to set aside a verdict inding him insane, and to direct commissioners to reconvene and allow him to present his defense, will be granted, where his request for adjournment because of illness of counsel was refused, and substituted counsel asked an adjournment for two days in which to prepare for hearing, which was also refused, on condition that the costs of the proceeding to date be paid by respondent or his estate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Insane Persons, $ 30.]

In the matter of James Bartlett Hammond, alleged lunatic. Motion to set aside verdict and direct commission to give defendant opportunity to present defense.

John Holden, for petitioner.
Quigg, Bostwick & Coleman, for respondent.

BLANCHARD, J. This is a proceeding to inquire into the sanity of the respondent. Commissioners were duly appointed, a jury impaneled, several hearings were had, and the case of the petitioner completed. At some of the hearings, and when the most important testimony was given, adjournments were asked on behalf of the respondent, because of the illness of counsel, and refused. Other counsel was engaged, who asked for an adjournment of two days in which to prepare for the hearings, and this was also refused. The respondent put in no evidence, and the jury found him insane. This is a motion to open the respondent's fault, to set aside the verdict of the jury, and to direct the commission heretofore appointed to reconvene and to give to the respondent a reasonable opportunity to present his defense. The motion is opposed on several grounds, most of them technical, and that there is no precedent for granting it. I ani of the opinion, however, that these considerations are of minor consequence in face of the fact that the proceedings seek to deprive the respondent of his liberty and control of his property. No harm can come by opening the default and great injustice might result by not doing it.

and 140 New York State Reporter The costs and expenses of the proceeding to date, however, should be borne by the respondent or his estate, and the default will be opened upon that condition.

(55 Misc. Rep. 130.)



Plaintiff was injured March 5, 1904, by a defect in a sidewalk in the city of New York, and filed his complaint with the comptroller October 2. 1904, and served on the corporation counsel December 29, 1904, notice of intent to sue to recover for such injuries. Held, a compliance with Laws 1886, p. 801, c. 572, requiring notice within six months after such cause of action shall accrue as such cause did not accrue until 30 days after notice of claim was filed under Greater New York Charter, Laws 1901, p.

114, c. 466, § 261. Action by Martin Bernreither against the city of New York. Motion to dismiss complaint. Denied.

Andrew C. Morgan, for plaintiff.

William B. Ellison, Corp. Counsel (J. A. Stover, of counsel), for defendant.

BRADY, J. Plaintiff sues for personal injuries sustained through falling on a sidewalk on March 5, 1904. On September 2, 1904, plaintiff presented his claim to the coinptroller in due form and substance as required by section 261 of the Greater New York Charter (Laws 1901, p. 114, c. 466), which provides as follows:

"No action or special proceeding for any cause whatever shall be prosecuted or maintained against the city of New York unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment."

On December 29, 1904, plaintiff served upon the corporation counsel a notice of intention to commence this action as provided in chapter 572, p. 801, Laws of 1886. Chapter 572 aforesaid provided that:

"No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have ac crued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall have accrued."

The complaint properly alleged the filing of the claim with the comptroller and the service upon the corporation counsel of the notice of intention to commence the action as above recited. Defendant moved to dismiss the complaint upon the ground that the cause of action herein accrued on the day the injuries were sustained, viz , on March 5, 1904,

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