In the order the affidavits mentioned in the notice are enumerated as having been read and used, and that the motion was made thereon, and upon all the proceedings had and taken in this action. The motion was denied, the order, near its close, containing the following language: "Ordered that an extra allowance to plaintiff herein be, and the same is hereby, denied. In case motion for a new trial is made or appeal taken by defendants, then in that case the first motion may be renewed." Plaintiff appeals. Affirmed. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. T. B. & L. M. Merchant, for appellant. Carver, Deyo & Jenkins, for respondents. HARDIN, P. J. In Burke v. Candee, 63 Barb. 552, it was held, viz.: "An additional allowance is made by way of an indemnity to the party succeeding in the litigation." That case was referred to with approval in Gooding v. Brown, 21 Wkly. Dig. 47; Tolman v. Railroad Co., 31 Hun, 403; and Delcomyn v. Chamberlain, 48 How. Prac. 413. Section 3253 of the Code provides that in an action which is "difficult and extraordinary," where a defense has been interposed, the court may, in its discretion, award to any party "a sum not exceeding five per centum upon the sum recovered, or claimed, or the value of the subject matter involved." The affidavits produced upon the motion tend to indicate that the case was difficult and extraordinary. In Morrison v. Agate, 9 Wkly. Dig. 286, it was said that the determination of the question as to whether an action should be regarded as difficult and extraordinary, within the meaning of the Code, involves so many considerations which are addressed to the discretion of the judge that the appellate court rarely interferes. The doctrine of that case was approved by this court in Tolman v. Railroad Co., 31 Hun, 403. In the latter case an order had been made for an extra allowance, and the court observed, "To reverse the order, we should be obliged to say that the discretion of the trial judge was improperly exercised." In the case in hand we are not inclined to say that the discretion of the special term was improperly exercised, as the appeal book does not contain "all the proceedings had and taken in this action." It may be that the order in question was based upon a knowledge possessed by the court "of all the proceedings had and taken in this action," and that such knowledge is not revealed fully to us by the appeal book. This feature of the case is rendered probable by the circumstance that the judge who presided at the special term presided at the circuit where the issues of fact were tried, and the trial thereof was presided over by him during the whole of a week of the circuit. We are not prepared to attribute to the judge the views imputed to him found in the affidavits in the appeal book. The circumstances of the trial may have induced him to insert in the order the clause, "In case motion for a new trial is made or appeal taken by defendants, then and in that case this mo tion may be renewed." Inasmuch as no motion for a new trial has been made or appeal taken by the defendants, the privilege given by the clause just quoted is unavailing to the plaintiff. Some force and effect may have been given to the affidavits read by the defendants relating to the intimations theretofore made by the court in respect to the nature and character of the action, which affidavits the plaintiff had no opportunity to answer at the time the motion was heard. Possibly, upon other and further affidavits, the plaintiff may be able to obtain leave to renew the motion, and, having done so, to secure a further determination by the special term of the question whether, under all the circumstances surrounding the question as to the propriety of an extra allowance, the discretion of the court should be exercised in favor of the plaintiff. Rule 44 of the general rules of practice of the supreme court provides that "applications for an additional allowance can only be made to the court before which the trial is had." We think, upon the papers before us, we ought not to pass conclusively upon the question whether the plaintiff is entitled to an extra allowance, as that question cannot well be solved, except upon a mature consideration of "all the proceedings had and taken" in the action, and upon all the affidavits presented by either party relating thereto. We therefore affirm the order, without costs, and without prejudice to the plaintiff's application at special term for leave to renew its motion. Order affirmed, without costs, and without prejudice to an application by the plaintiff for leave to renew its motion for an extra allowance. All concur. (86 Hun, 461.) HIGGINS v. DAKIN. (Supreme Court, General Term, Fourth Department. May 4, 1895.) 1. LABELS-TRADE UNIONS-PENALTY FOR USING. In an action to recover the penalty for wrongfully using a union label (Laws 1893, c. 219), one M. testified that he bought from defendant cigars which purported to have the label attached; that he had a conversation with defendant about union-made cigars; that the cigars were delivered by H., for whom witness supposed defendant was acting as agent; and that, to the best of witness' recollection, he asked defendant if the goods were union-made, to which defendant replied that they were, but that he could not say that defendant exhibited a label to him. Held, that the evidence was not sufficient to sustain a judgment for plaintiff. 2. EVIDENCE-UNDERSTANDING OF WITNESS. Evidence as to what the witness "understood and believed" from a conversation is not admissible. Appeal from Otsego county court. Action by Thomas P. Higgins against E. M. Dakin for wrongfully using a label. From a judgment of the county court affirming a judgment of the justice court in favor of plaintiff for the sum of $200, besides costs, defendant appeals. Reversed. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. Gibbs & Wilbur, for appellant. W. J. Palmer and Tracy Becker, for respondent. HARDIN, P. J. The plaintiff, in his complaint, alleges that he was a member of a union association of workingmen duly incorporated under and in pursuance of the laws of the state of New York under the corporate name of the Cigar Makers' International Union of America. That the said union or association of workingmen has adopted a certain label or device, intended by them to designate the product of the labors of members of such union, and that copies thereof had been filed with the secretary of state as required by law. The complaint further alleges that on the 15th of August, 1893, at the town of Oneonta "the above-named defendant wrongfully did use, sell, and expose for sale certain counterfeit or colorable imitations of the said label or device so adopted by said union or association of workingmen," contrary to the provisions of chapter 219 of the Laws of 1893; and that by reason thereof the defendant is indebted to the plaintiff in the penalty of the sum of $200. The answer contained a general denial. Chapter 219 of the Laws of 1893 provides, viz.: "Any person who shall hereafter use, manufacture, display or keep for sale any counterfeit or colorable imitation of any label, mark, name, brand or device adopted by any union or association of workingmen or women, and intended by them to designate the products of the labor of members of such union or association of workingmen or women, and copies of which have been filed in the office of the secretary of state, as provided by chapter three hundred and eighty-five of the Laws of eighteen hundred and eighty-nine, shall be subject to a penalty of two hundred dollars. Under the plaintiff's complaint, the question to be determined was, did the defendant "use, sell, and expose for sale certain counterfeit or colorable imitations of the said label or device so adopted by said union"? The evidence given by the plaintiff to establish an affirmative solution of the question was given by Thomas Marsh, who testified that on the 15th of August, at his store, he purchased of the defendant 250 "5th Avenue" and 250 "Agnes Booth" cigars. The witness further testified: "We spoke about union-made cigars; that 5th Ave.' were union-made cigars; and gave him an order for 250 as union-made cigars. The 'Agnes Booth,' I get it job lot. They were to be shipped to me. Subsequently I received the goods. [Package shown witness.] They were contained in package similar to this shown me, and purported to have attached union label on box on each pack. The 250 5th Ave.'s' were put up in packages of 50 each (5 packages)." In the course of the witness' cross-examination he said: "I bought the goods from Heert & Co., and from them I received these cigars. I knew at time the cigars I was purchasing; I was purchasing them made, and I purchased them as union-made. He did not deliver me any cigars. I knew at time the cigars I was purchasing; I was purchasing them of Heert & Co. Heert & Co. afterwards sent the cigars to me, and I paid Heert & Co. for the cigars. I cannot say that defendant displayed union label to me. I do not remember that defendant ever delivered package with union label on. I supposed he was acting as agent. 'Agnes Booth' has no label on. To my best recollection, I asked Dakin if the '5th Ave.' cigars were union-made, and he said 'Yes, they would have the blue label on.' I cannot say that defendant exhibited blue label to me." The witness, continuing, said: "Defendant never delivered a box of cigars to me with union label on." At a later stage of the case the witness testified: "The best of my recollection is that I did ask Dakin if the 5th Avenue' cigars were union-made, and he replied they were, and they would have the blue label on. To the best of my knowledge, recollection, and belief, there was something said about the cigars having the blue label on by Dakin at the time I purchased them." After this evidence was given, the defendant moved for a nonsuit, which was denied. We think the evidence was insufficient to establish that the defendant manufactured, displayed, kept for sale, or used "any counterfeit or colorable imitation of any label." A fair consideration of his testimony requires that that part which makes in favor of the defendant should be considered as well as that which might be construed as being adverse to him. There is no evidence to indicate that the defendant did not send forward an order for goods to be shipped to the purchaser with just the label he represented, or that he forwarded an order for goods not union-made. Inasmuch as this is an action to recover for a penalty, evidence should be required of the plaintiff to establish that the defendant himself has clearly violated the statute which gives a right to a recovery. Plank-Road Co. v. Parkill, 50 Barb. 601. The case in hand is quite unlike People v. Adams, 3 Denio, 190. If this action had been brought against Heert & Co., the case cited would be more in point. 2. The trial court erred in overruling objections to questions put to Marsh in the following language: "Q. State, at time you purchased these cigars, whether or not you understood and believed they were union-made cigars, and that the label attached to pack was the genuine label of the Cigar Makers' Union." Wilder v. Peabody, 21 Hun, 376; In re New York, W. S. & B. Ry. Co., 33 Hun, 234, and cases there cited. The foregoing views lead to a reversal. Judgment of the county court affirming a justice's judgment reversed, with costs, and the judgment of the justice's court reversed, with costs. All concur. (86 Hun, 424.) EDSALL v. HOWELL. (Supreme Court, General Term, Fourth Department. May 4, 1895.) 1. HIGHWAYS-PLANTING SHADE TREES-ABUTTING OWNERS. Laws 1863, c. 93, providing that persons owning land fronting on any highway may plant shade trees along the roadside within a certain distance from the outward line of the highway, authorizes abutting owners to plant trees in the highway, without reference to the ownership of the fee. Martin, J., dissenting. 2. SAME TITLE TO FEE. Where a deed describes the premises conveyed as "on" a certain street, it will be presumed that the title to the middle of the street passed to the grantee. Martin, J., dissenting. 3. MEASURE OF DAMAGES-CUTTING SHADE TREES. The measure of damages for cutting a shade tree is the difference be tween the value of the land before the tree was cut and afterwards. Appeal from circuit court, Tioga county. Action by Benjamin F. Edsall against John L. Howell for destroy. ing a shade tree. From a judgment entered on a verdict in favor of plaintiff for $50 damages, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed. * The plaintiff's complaint alleges that the defendant, in January, 1893, "was and had been the owner of a certain shade tree, viz. a maple tree, standing in and upon a certain strip of land in the town of Nichols, in the county of Tioga, N. Y.; the said strip of land being a public highway of the said town, and the said tree standing in front of certain premises or lands owned by the plaintiff during all the times above referred to, and which said lands and premises were fronting on the said highway. * * The defendant without permission or license of plaintiff, the owner, or of any proper officer or person, but willfully, wrongfully, and unlawfully entered in and upon the said highway and in front of the plaintiff's said premises, and then and there willfully, wrongfully, unnecessarily cut, sawed, girdled, despoiled, injured, and destroyed the said tree, to plaintiff's actual damage of the sum of $65.00." Defendant in his answer stated "that the maple tree mentioned in the plaintiff's complaint is situate upon the border of a highway, the freehold or fee title of which is in defendant, and defendant was seized of the same, and that defendant had reasonable grounds to suppose that he was the owner of and seized of said maple tree, and whatever defendant did in the premises was done supposing and believing that he was the owner thereof." Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. HARDIN, P. J. March 30, 1867, John L. Howell, the defendant, made application to the commissioner of highways of the town of Nichols, in writing, to lay out a highway in the town according to a line indicated by a survey and a map, in which application it was stated that the highway "will pass through the improved lands of Peter Joslin, Oliver A. Barstow, and John L. Howell, the subscriber." It was stated in the application, viz.: "Each and every one of such owners consenting to the laying out of such highway; and I, the said John L. Howell, do hereby consent to the opening and laying out of said highway in so far as the same crosses over or enters upon the land or any lands owned by me; and I do dedicate to the people of the state of New York the use of so much of my said lands as is included within the bounds of said highway for the purposes of public travel; and I do hereby release to the said people all my claims to damages by reason of the opening or laying out of such highway, and authorize the said commissioner to lay out and work the same." Subjoined to that application was the consent, signed by Peter Joslin and Oliver A. Barstow "The ones having the legal title to the lands hereinafter alluded to; and the latter, being interested therein as made in a written contract of sale therefor, do hereby consent to the opening and laying out of the highways which are described and mapped out in the survey and order hereto annexed, in so far as the same crosses over or enters upon any land owned by us or either of us, or in which we or either of us are or is interested; and we do hereby dedicate to the people of the state of New York the use of such portions of our said land as is included within the bounds of said highway for the purpose of public travel (page 43); and we do hereby further release to the people of the state of New York all our and each of our claims to damages by reason of the laying out and opening of such highway, or enters our said lands by the said order hereto annexed, and authorize the commissioner to open and work the same." Upon receiving the several papers so signed, the commissioner of highways made an order that a public highway be, "and the same |