and 140 New York State Reporter

having a claim against another person for materials used in building the boat, secured another boat, and, in company with a constable of the town and several other persons, pursued the Luebers boat and endeavored to take forcible possession of it. The respondent had not issued any process to seize the boat, nor was any proceeding pending before him, either against Luebers or the boat itself, and his only object was to secure, by force and violence, the collection of the claim which had been placed in his hands as justice of the peace.

The defendant is to be judged by his own acts and omissions, and a bare recital of the more flagrant violations of law of which he has been guilty demonstrates that the respondent should be removed from office.

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

Frank Comesky, for the motion.

Aaron T. Levy, opposed.

PER CURIAM. Report of referee confirmed, on the opinion of Hon. John J. Beattie, referee, and respondent removed from the office of justice of the peace of the town of Orangetown, Rockland County, N. Y.

(121 App. Div. 628.)

LILIENTHAL et al. v. GERMAN AMERICAN BREWING CO. (Supreme Court, Appellate Division, First Department.

PRINCIPAL AND AGENT-POWER OF AGENT-RATIFICATION.

October 25, 1907.)

In an action on a contract negotiated and afterwards modified by a salesman, the questions whether he had authority to modify the contract, and, if he had no such authority, whether his principal did not ratify his act, held, under the evidence, to be for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 724, 725.]

Appeal from Trial Term, New York County.

Action by Albert Lilienthal and another against the German American Brewing Company. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Warren McConihe, for appellant.

Charles W. Coleman, for respondents.

HOUGHTON, J. In the year 1904 a salesman of the plaintiffs, who are copartners, bargained with defendant for the purchase of a car load of hops of the growth of 1905, to be delivered after January 1, 1906, at 27 cents per pound. By mutual memoranda signed by the plaintiffs and defendant, this bargain was confirmed. Upon the salesman's return to plaintiffs' place of business, he reported to the plaintiffs that the president of the defendant had been largely instrumental in enabling him to sell two other car loads of hops, and that the plaintiffs owed some kind of compensation therefor. Thereupon one of the plaintiffs told the salesman that he himself was capable of looking after the matter, and that he left it entirely to him to do what he thought

best. On the salesman's next visit to the defendant's place of business, in adjustment and satisfaction of this obligation of plaintiffs to defendant, by memorandum in writing in plaintiffs' name signed by himself, he modified the contract for the purchase of the car load of hops by providing that the purchase price should be at the market price, not to exceed, however, 27 cents per pound. When the time of delivery arrived, the price of hops was much below 27 cents. The defendant offered to take them at the then market price, and the plaintiffs insisted that, if delivered, they should be at 27 cents per pound. The defendant refused to accept them at that price, claiming that the contract had been properly modified, and the plaintiffs brought this action to recover the damages which they claim to have sustained. The court refused to permit the defendant to go to the jury upon the question as to whether or not the salesman had authority to modify defendant's contract, or, if he had no authority, whether plaintiffs had ratified his act of modification, and submitted to them only the question as to how many pounds of hops a car load contained, instructing them, when that was ascertained, to find a verdict for plaintiffs for the difference between the market price proven and 27 cents. We think the court erred in refusing to submit to the jury the question of the salesman's authority to modify the contract; and, if he had no such authority, whether plaintiffs did not ratify his act. There was no dispute that the plaintiffs told the agent to settle the matter of the compensation of defendant for aiding in the sale of two car loads of hops in such manner as he saw fit. Instead of agreeing to pay a sum of money, or arbitrarily reducing the price of the car load of hops which defendant had bargained for, he agreed that the defendant need pay only the market price prevailing at the time they were to be delivered. Under the then condition of the hop market, it might properly be said that this was a reasonable bargain, and one of which the plaintiffs could not complain. Indeed, on the proof as it stood upon the trial, the defendant might well have asked for a direction of a verdict in its favor. In addition to this undisputed authority given by the plaintiffs to the salesman to adjust the defendant's claim against them, the salesman testifies that he reported to the plaintiffs what he had done at some period before any dispute arose; and the secretary of the defendant testified that in November, 1905, he called plaintiffs' attention to the fact that defendant's order for hops had been modified. On this latter occasion plaintiffs insisted upon settling other matters of difference between themselves and the defendant before taking up the modification to which their attention was then called. If plaintiffs knew what their agent had done, and made no timely objection to it, the jury might find that they ratified his act, although it was originally unauthorized. The court erred in refusing to submit to the jury the questions requested by the defendant.

The judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

INGRAHAM, J. (concurring). I concur with Mr. Justice HOUGHTON, and I am also of the opinion that, if there was a breach of the contract by the defendant, the measure of damages was the mar

and 140 New York State Reporter

ket price on the 23d day of January or the 15th of February. It was therefore error to refuse the testimony offered by the defendant as to the market value of the hops in January and February. On January 23d the defendant expressly demanded the delivery of the hops which were then due under the original contract, and stated that the refusal to submit samples and prices at that time would be taken as a refusal on the plaintiffs' part to comply with the modified contract. This position was restated by the letter of February 5th, and the 15th of February was then fixed as the definite date for a breach of the contract on the part of one party or the other. The position of both parties had then been stated; the plaintiffs claiming that their rights were to be determined by the original contract of September 5, 1904, while the defendant claimed that the modified contract should control. If the jury should sustain the plaintiffs' contention, there was certainly evidence to base a finding that there had been a breach of the contract on the 15th of February, 1905.

(56 Misc. Rep. 133.)

HUDSON RIVER TELEPHONE CO. v. FORRESTAL.

(Supreme Court, Special Term, Dutchess County. November 2, 1907.)

1. BOUNDARIES-HIGHWAYS-DESCRIPTION.

A deed described defendant's land as beginning on the northerly side of W. Ave., at the southeasterly corner of a certain lot, and running from thence northerly about 125 feet, thence westerly about 470 feet, thence southwesterly 175 feet, to W. Ave., thence easterly along W. Ave. about 470 feet, to the place of beginning. Held, that defendant, under such description, took title to the center of W. Ave.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, § 123.]

2. EMINENT DOMAIN-TELEPHONES-VILLAGE STREETS-RIGHTS.

A telephone company holding a village franchise is not authorized to occupy a street, the title to which is in the abutting owner, against his wishes, without having acquired the right by condemnation proceedings.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 312.]

Action by the Hudson River Telephone Company against Mary A. Forrestal, in which defendant pleaded a counterclaim. Judgment for defendant on the counterclaim.

James G. Meyer, for plaintiff.

John J. Donnolley (Samuel K. Phillips, of counsel), for defendant.

MORSCHAUSER, J. The plaintiff, a domestic corporation, by its complaint alleges: That the defendant is the owner of a certain piece of real estate situate on the northerly side of Wiltsie avenue, in the village of Fishkill Landing, this county; that it had permission from said village to construct, maintain, and operate its lines and erect poles on public streets in said village; that it did erect such poles, and the defendant, by her servant and agent, cut down two of said telephone poles and the ropes and wires attached thereto and interfered with the operation of said business; and that the plaintiff was damaged in the sum of one hundred dollars, for which it asks judgment, and asks that the

defendant, and her agent, be restrained from injuring, or in any manner interfering with, the poles, wires, and property of the defendant.

The defendant, by her answer, admits the several allegations of plaintiff's complaint, except paragraph "Nine." In answer thereto, she alleges that she is seised in fee of the locus in quo, and by virtue thereof did the acts complained of, doing no more harm than was necessary. The answer contains a counterclaim. It alleges: That the defendant is the owner of premises situated in said village and located on the north side of Wiltsie avenue and described as follows:

"Beginning on the northerly side of Wiltsie avenue at the southwesterly corner of lot formerly of Henry Jones, and running from thence northerly along said Jones line about one hundred twenty-five feet to lands of Elizabeth Van Amburgh; thence westerly along her line and the land of T. S. Lester, Murty Gilgan and others about four hundred and seventy feet to Cliff street; thence southwesterly along Cliff street one hundred and seventy-five feet to Wiltsie avenue; thence easterly along Wiltsie avenue about four hundred seventy feet-to said Jones land, the place of beginning."

And that the plaintiff wrongfully and without the legal right entered upon and took possession with a large number of men and dug a hole and placed a pole therein and despoiled trees and roots in front of her premises, and that defendant, claiming to be the owner in fee and entitled to the premises, was damaged by the wrongful acts of the plaintiff in the sum of $100. That the value of the use and occupation of said street by said plaintiff was $50 per year. That the placing of the poles was done without leave of the defendant, and the defendant asks for damages and the recovery and possession of lands and for a judgment forbidding the plaintiff from interfering with the lands of the defendant. The plaintiff replied with a general denial. The poles erected by plaintiff, and cut down by defendant's agent, were on the north side of Wiltsie avenue, and were upon the sidewalk, near the gutter in front of the premises above described.

I am satisfied that this case falls within the decision of Van Winkle v. Van Winkle, 184 N. Y. 203, 77 N. E. 35:

"The commencement of the description of premises at a corner or a point particularly specified is always considered important, for ordinarily more attention is given by the parties to the locating of the point of commencement of the description than to the other points; but it is not conclusive, and where it is inconsistent with the other lines described, which show an intent to include or exclude the fee of the highway, effect will be given such intent, and where there is ambiguity with reference to the description or to the commencing point, or where there is doubt with reference to the intent of the grantor, the presumption that the fee was intended to pass will prevail, for in such case the construction must be most favorable to the grantee. Where a survey gives the dimensions and quantity of the land conveyed, exclusive of the public way, it does not operate to destroy the presumption that the fee to the roadbed was conveyed, for the reason that such dimensions and quantity of the usable land is ordinarily deemed by the purchaser of paramount importance in determining its availability for the uses designed by him. Where a deed gives the boundaries of the land conveyed by courses and distances, without mentioning a street by which the same is bounded on one side, but where it appears that the distance given does in fact carry the boundary to the street and along it, it is the same as though the boundary were described as running to the street and along the same, thus extending the title to the center; and where a line runs to a stake or to a mark upon a fence or a tree upon the bank of a stream or upon the side of a highway, and thence along

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the meandering of the stream or along the highway, the stake, mark, or tree will be deemed to indicate the place of the line, and not the end thereof, by reason of the difficulty of maintaining a visible object marking the corner in the middle of a stream or in the roadbed of a highway, thus vesting the title in the grantee"-citing a number of authorities. .

The description of the land in the conveyance to defendant, and the descriptions, in the conveyances of the parcels, lying on the east of defendant's premises from the common grantor, satisfy me that defendant's title extends to the center of Wiltsie avenue. If I am right in this, and the plaintiff is the owner of the fee of the street, subject only to the public right of way then I do not think the plaintiff can erect its poles in front of the defendant's premises in said street without acquiring the right by condemnation, although it has had permission from the village authorities to do so. See Eels v. American Telephone & Telegraph Company, 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640.

In Powers v. State Line Telephone Company, 116 App. Div. 738, 102 N. Y. Supp. 34, Mr. Justice Rich said:

"The record presents the question whether a telephone company, holding a franchise from a village authorizing the placing of poles and wires in its streets for the purpose of conducting its business, can occupy land forming part of a public street, owned by a citizen and subject only to those easements arising from a dedication of the street for those purposes, without the consent of the owner and against his wishes, without having acquired such right by condemnation proceedings. We prefer to hold that this cannot be done. In Eels v. American Telephone & Telegraph Co., 143 N. Y. 133, 138, 38 N. E. 202, 203, 25 L. R. A. 640, Peckham, J., in writing for the court, says: 'We think neither the state nor its corporation can appropriate any portion of the public highway permanently to its own special, continuous, and exclusive use by setting up poles therein, although the purpose to which they are to be applied is to string wires thereon, and thus to transmit messages for all the public at a reasonable compensation. It may be at once admitted that the purpose is a public one, although for the private gain of a corporation; but the Constitution provides that private property shall not be taken for public use without compensation to the owner. Where land is dedicated or taken for a public highway, the question is: What are the uses implied in such dedication or taking? Primarily there can be no doubt that the use is for passage over the highway. The title to the fee of the highway generally remains in the adjoining owner, and he retains the ownership of the land, subject only to the public easement. If this easement do not include the right of a telegraph company to permanently appropriate any portion of the highway, however small it may be, to its own special, continuous, and exclusive use, then the defendant herein has no defense to the plaintiff's claim. Although the purpose of a public highway is for the passage of the public, it may be conceded that the land forming such highway was not taken for the purpose of enabling the public to pass over it only in the then known vehicles, or for using it in the then known methods for the conveyance of property or the transmission of intelligence. Still the primary law of the highway is motion, and whatever vehicles are used, or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body which must pass along the highway, either on or over, or perhaps under it, but it cannot permanently appropriate any part of it.' Powers v. State Line Telephone Company, 116 App. Div. 739, 102 N. Y. Supp. 36. Each case must be determined by the condition and necessity shown to exist."

*

The evidence does not disclose the necessity requiring the application of a different rule than was established by the Court of Appeals in the Eels Case. The village has a population of about 4,000 inhabitWhile geographically the location of the defendant's premises

ants.