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to such owner, and that a public nuisance, as to the person who is specially injured thereby in the enjoyment or value of his lands, also becomes a private nuisance."

In Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341, Judge O'Brien said:

"The obstruction of a public highway is an act which in law amounts to a public nuisance, and a person who sustains a private and peculiar injury from such an act may maintain an action to abate the nuisance and to recover the special damages by him sustained. The extent of the injury is not generally considered very important."

In McMillan v. Klaw & Erlanger Co., 107 App. Div. 414, 95 N. Y. Supp. 365, which was an action by an adjoining owner to restrain the defendant from erecting as a part of its building thereon a structure extending into the street four feet beyond the building line, the defendant set up as a defense an ordinance passed by the board of aldermen, which ordinance, it is claimed, sanctioned and legalized the structure complained of. Mr. Justice O'Brien, in delivering the opinion, after referring to the opinion of the Court of Appeals, in Ackerman v. True, supra, says:

"While the title of the streets is in the municipality, that title is held in trust by it for public use, and not even the municipal assembly has authority to permit permanent encroachment thereon."

He further says, in his opinion:

"Referring again to the particular encroachment here involved, we repeat that it imposes a new, unusual, and additional burden upon the street and diminishes the plaintiff's easements without compensation.”

But, it is contended by the defendant herein that the plaintiff is estopped, in having acquiesced in the construction. The proof offered is not of such a character as would warrant my finding either a parol license or an acquiescence on the part of the plaintiff in the erection of the structure complained of. The evidence offered by the plaintiff to establish his monetary loss was rejected by me, but since the trial my attention has been called to the case of Reisert v. City of New York, 174 N. Y. 196, 66 N. E. 731, which was not cited upon the trial. In view of the opinion of the court in that case, I am convinced that I erred in the exclusion of the testimony, and therefore the question of plaintiff's damage may be referred to a referee to ascertain the same. Let a decree be entered restraining the continuance of the structure and the restoration of the sidewalk to its proper uses, with the provision for a reference as to the damages. Submit decree and findings upon notice.

JANVEY v. LOKETZ et al.

(Supreme Court. Appellate Division, Second Department. November 22, 1907.) 1. ASSIGNMENTS-CONTRACT FOR DECORATING BUILDING-CONSENT OF OWNER -SUFFICIENCY OF EVIDENCE.

Evidence held not to warrant a nonsuit on the ground that defendants did not know of or consent to an assignment to plaintiff of a contract to decorate defendants' building.

2. TRIAL-NONSUIT-CONSTRUCTION OF EVIDENCE.

On motion for nonsuit, plaintiff is entitled to the most favorable inferences deducible from the evidence, and contested facts are to be presumed in his favor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 374.] 8. ASSIGNMENTS-CONTRACTS-PAINTING AND DECORATING BUILDING.

A contract for the painting, decorating, and whitewashing of a building is assignable, since it does not involve a personal confidential relation, or exceptional personal skill or knowledge, which alone would make the contract nonassignable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Assignments, §§ 25-31.]

4. EVIDENCE-VARYING WRITTEN INSTRUMENT-PRIOR CONVERSATIONS.

Testimony as to conversations prior to or at the time of the making of a written contract is not admissible, since it must be presumed that the oral negotiations were merged in the instrument.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, 88 1756-1765.]

Appeal from Municipal Court, Borough of Brooklyn, Seventh District.

Action by Isaac Janvey against Louis Loketz and another. Judgment for defendants, and plaintiff appeals. Reversed, and new trial ordered.

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

Louis Pleshet, for appellant.

Alfred A. Shlickerman, for respondents.

WOODWARD, J. The pleadings were oral; the complaint being for labor and materials furnished, and the answer a general denial. The plaintiff's complaint was based on two causes of actionone to recover a balance of $70, under a contract subsequently assigned to the plaintiff, made by the defendants and one Jacob Aaronson for the performance, at the consideration of $165, of certain painting, decorating, and whitewashing in a certain house belonging to the defendants on Saratoga avenue; the other, to recover the agreed price, $45, for certain extra work performed for the defendants by the plaintiff. The assignment to the plaintiff of the contract, with all "right, title, and interest" therein, by Aaronson, for the consideration of one-half of the profits, was received in evidence. The defendant claims that he had no knowledge of the assignment of the contract by Aaronson to the plaintiff, that he did not assent thereto, and, furthermore, that the contract between the original parties is not assignable, for the reason that, since the subject of the agreement was personal services, another person could not be substituted for their performance. The defendant also states in his answer that the facts (which are not disputed) that three of the four payments were made direct to Aaronson himself subsequent to the date of the alleged assignment of the contract to the plaintiff, that the receipts for the said three payments were given by Aaronson, and that the other payment of $5, the only one made to the plaintiff in person, was made to him for Aaronson, and that the receipt there

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for, at the demand of the defendants, was given by the plaintiff in the name of Aaronson, disprove their assent to and their knowledge of the assignment.

I have read the evidence with great care, and cannot but conclude, in view of the several important contradictions in the defendants' testimony, that the defendants were not only aware that the agreement had been assigned by Aaronson to the plaintiff, but that they fully assented thereto. This was borne out by the testimony of the plaintiff's witnesses Goldberg and Kurss, who, while in his employ and being in the same room with the plaintiff and the defendant, heard the assent of the latter to the assignment of the contract to the plaintiff, as well as the statement by the defendant that he was satisfied with the new arrangement and with the substitution of the plaintiff for Aaronson. Aaronson himself testified to the same effect. and the defendant's denial, which is self-contradictory at almost every point, seems altogether insufficient to support his contention. The witness Aaronson also testified that the checks received by him for the work done in pursuance of the contract were all delivered to and indorsed by the plaintiff, and that he informed the defendants that such payment was for the plaintiff. In consideration of this testimony the failure of the defendants to produce the checks in the case is significant of the weakness of their position. In view of these facts I do not see that the plaintiff failed to establish his causes of action. It is the rule that, in case of nonsuit, the party nonsuited is entitled to the most favorable inference deducible from the evidence, and that the contested facts are to be presumed in his favor. Higgins v. Eagleton, 155 N. Y. 466, 50 N. E. 287. The plaintiff was therefore entitled to a determination of the rights of the parties upon the merits, and the court was plainly in error when it dismissed the plaintiff's action.

It also appears that there was a substantial performance of the contract by the plaintiff, and that the extra work was done by him according to agreement. That the contract calling for the performance of certain painting, decorating, whitewashing, and wall paper work was assignable is established by many authorities. In Devlin v. Mayor et al., 63 N. Y. 17, Judge Allen says:

"When the contract is executory in its nature, and an assignee or personal representative can fairly and sufficiently execute all that the original contractor could have done, the assignee or representative may do so and have the benefit of the contract."

Thus a contract to build a steamboat, to erect a synagogue, and to build a railroad has been held to be assignable; for it is plain, as in the case at bar, that such contract involves no personal confidential relation and no exceptional personal skill or knowledge, the requirement of which alone would make a case nonassignable. As was said by Judge Cullen (N. Y. Bank Note Co. v. Hamilton Bank Note Co., 180 N. Y. 291, 73 N. E. 51):

"The general rule is that an executory contract not necessarily personal in its character, which can, consistent with the rights and interests of the adverse party, be sufficiently executed by the assignee, is assignable, in the absence of agreement in the contract."

However, the evidence clearly established the knowledge and the consent of the defendants to such assignment, and the objection of the plaintiff to the testimony by the defendant and by the witness Loketz in reference to certain conversations at the time of or prior to the making of the contract should have been sustained, for it must be presumed that such alleged oral agreements or negotiations were merged in the written instrument.

The judgment should be reversed, and a new trial ordered; costs to abide the event. All concur.

BRIGGS v. GELM, Sheriff, et al.

(Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) 1. CHATTEL MORTGAGES-CHANGE OF POSSESSION-FRAUD-STATUTES.

Where a chattel mortgage was not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the mortgaged property, the mortgage was presumptively fraudulent, and conclusively so unless it was shown by the party claiming under it to have been given in good faith and without fraudulent intent, as provided by 2 Rev. St. p. 136, pt. 2, c. 7, tit. 2, § 5.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 367, 368, 372.]

2. SAME--FRAUDULENT AGREEMENT.

Where the property covered by a chattel mortgage consisted largely of unfinished knit goods, some of which was not in process of manufacture, and the value depended on its being worked into garments, an agreement that the property should be worked up sold, and the proceeds, after paying necessary expenses of manufacture, should be exclusively applied to payment of the mortgage debt, would not render the mortgage fraudulent; but it would be otherwise if the agreement was that the mortgagors should retain possession and use the mortgaged property for their own purposes, and to pay other debts not secured by the mortgage.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 410.]

3. APPEAL-VERDICT-REVIEW-EVIDENCE.

The verdict of a properly instructed jury will not be set aside on appeal as contrary to the evidence, unless it appears that the jury were actuated by favor, prejudice, or passion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3912-3915.]

4. SAME-Delay.

Where judgment was not entered on a verdict in favor of plaintiff until more than 2 years after the trial, which occurred 11 years before the case was disposed of on defendants' appeal, defendants had not moved with sufficient expedition to entitle them to a reversal on the ground that the verdict, which had been sustained by the trial judge on a motion for a new trial, was contrary to the evidence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3948-3950.]

5. CHATTEL MORTGAGES-FILING-DELAY.

A delay of two days after the execution of a chattel mortgage before it was filed was not unreasonable within Laws 1833, p. 402, c. 279, § 1, providing that, where the filing of a chattel mortgage is unreasonably delayed, it shall be conclusively presumed to be fraudulent.

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Appeal from Trial Term, Chautauqua County.

Action by Jennie Briggs, as assignee of Elihu S. Briggs, for the benefit of his creditors against John Gelm, as sheriff of Chautauqua county, and another. From a judgment on a verdict in favor of plaintiff, and from an order denying defendants' motion, for a new trial on the minutes, they appeal. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

A. Frank Jenks, for appellant.

John G. Wicks, for respondent.

WILLIAMS, J. The judgment and order should be affirmed, with

costs.

The action was brought by the assignee for the benefit of creditors of Elihu S. Briggs against the sheriff of Chautauqua county and his deputy to recover for the conversion of personal property. The plaintiff claimed title to the property under a chattel mortgage and a foreclosure sale thereunder. The defendants took and held the property under an execution against the mortgagors, and claimed that the mortgage was void, in that it was given with intent to hinder, delay, and defraud their creditors, some of whom were represented by defendants under the execution. The mortgage was given to the plaintiff Briggs and his mother. It was filed the second day after it was given, and was refiled at the end of the year. The mother's interest in the mortgage and the property was transferred to Briggs about a year after the mortgage was given. The property remained in the possession of the mortgagors one year and three months after the giving of the mortgage, and then the mortgage was foreclosed and the property bid in by Briggs. A month later, Briggs made the assignment, and a month after the assignment the defendants took the property under the execution. The mortgage, not having been accompanied by an immediate delivery and followed by an actual and continued change of possession of the mortgaged property, was, under the statute, presumptively fraudulent, and was conclusively so unless it was shown on the part of the party claiming under it that it was given in good faith and without a fraudulent intent. 2 Rev. St. p. 136, pt. 2, c. 7, tit. 2, § 5, which was in force when this mortgage was given and until 1897, when this statute was replaced by section 25 of the personal property law (chapter 417, p. 511, Laws 1897). The new statute excludes chattel mortgages from the section. The burden of proof, therefore, as to fraud was upon the plaintiff. In order to establish the validity of the mortgage under which he claimed title, he must establish good faith and the absence of fraudulent intent. Evidence was given by the parties respectively bearing upon this question, and the jury found with the plaintiff that there was no fraud in the inception of the mortgage.

The principal question presented here is whether, considering that the burden of proof was upon the plaintiff, the finding of the jury was supported by the evidence, or was contrary to the evidence within the well-established rules applicable to such questions. The particular