App. Div.] Second Department, April, 1909. quiet enjoyment, heat, repairs, or keeping the premises in such condition that they might be comfortably and without annoyance used by the lessee as a dwelling. The nuisance complained of was not the result of acts of the landlords, unless it can be held that the giving of the later lease charged them with responsibility for the acts of the lessee. I do not think it had that effect. The cooking of food in the basement of the building, in consequence of which odors found their way into the apartments occupied by defendant, were not acts of the plaintiffs and did not arise from instrumentalities in their possession or operated by them. In that respect the case presented differs from the authorities cited, which involve gas and odors from a furnace in the basement of an apartment building owned and operated by the landlord for the benefit of all of his tenants (Tallman v. Murphy, 120 N. Y. 345), the entry of water through the cellar and foundation walls, causing dampness and malaria (Meserole v. Hoyt, 161 id. 59), odors arising from a sewer under the demised premises provided by the landlord for the use of himself and other tenants in the building and used by them (Sully v. Schmitt, 147 id. 248), and similar cases in which it was held that such acts constituted constructive eviction. These cases rest upon the affirmative acts of the landlord resulting in a nuisance, due in some measure to him, and are not controlling in a case where the alleged nuisance is confined wholly to acts of a tenant of another portion of the building, using instrumentalities owned and operated by himself, which the landlord does not control and with which he has nothing to do. (McKinny v. Browning, 126 App. Div. 370.) The plaintiffs did not covenant in the lease to furnish heat for the demised premises, and there is no proof that the rooms occupied by the defendant were arranged so that they could be heated from a furnace or other apparatus by plaintiffs. The proof is limited to testimony that there were radiators of imperfect design and construction in such apartments; that the rooms were cold in the winter season, and that the defendant and his wife complained to the plaintiffs and their agent that they did not get sufficient heat. This might all have been the result of the defective radiators, and the evidence has the effect only of showing that from some unexplained reason the temperature of the demised premises was not maintained so as to make them com Second Department, April, 1909. [Vol. 132. fortable as a residence for defendant's family during the winter months. The evidence does not establish a constructive eviction, and the judgment of the Municipal Court must be affirmed, with costs. WOODWARD, JENKS, GAYNOR and BURR, JJ., concurred. Judgment of the Municipal Court affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE W. BEdell, Appellant, v. JOSEPH H. FOSTER, Sheriff of the County of Nassau, Respondent. Second Department, April 30, 1909. Crime when imprisonment in county penitentiary authorized — indeterminate sentence — jurisdiction of minor crimes under indictment charging felony - habeas corpus. By virtue of section 699 of the Penal Code, when the term of imprisonment of a male convict for felony is fixed at one year or less, he may be committed to a county penitentiary instead of a State prison. The court is not required to sentence him to a State prison on an indeterminate sentence pursuant to section 687a of the Penal Code. The grand jury has jurisdiction of a felony although the indictment in a second count alleges the same facts as a misdemeanor; the court having gained jurisdiction of the major crime has jurisdiction of any other crimes arising out of the same facts. One sentenced to imprisonment is not entitled to release on habeas corpus where the record does not show the defects alleged to exist in the certificate of conviction. The authority for holding a criminal is the certified copy of the entry of the judgment of conviction. APPEAL by the relator, George W. Bedell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 8th day of January, 1909, dismissing writs of habeas corpus and certiorari. H. Willard Griffiths, for the appellant. Franklin A. Coles, for the respondent. App. Div.] RICH, J.: Second Department, April, 1909. Appellant is detained in the penitentiary of the county of New York under a sentence for one year upon a judgment of conviction for grand larceny in the second degree. He avers that he is imprisoned illegally in that the sentence pronounced against him is contrary to law; that the court was without jurisdiction to try him, and that the warrant or order under which he is imprisoned does not conform to the judgment of conviction. The first contention is based upon the assumption that it was obligatory upon the court to sentence him to imprisonment in a State prison under the provisions of section 687a of the Penal Code. This assumption is erroneous. Under the provisions of section 699 of the Penal Code authority is vested in the court, when the term of imprisonment of a male convict for felony is fixed at one year or less, to direct imprisonment in a county penitentiary instead of in a State prison, and section 687a applies only to a convict "sentenced to a State prison." The contention of want of jurisdiction is predicated upon the fact that the indictment contains two counts, the first charges grand larceny in the second degree; the second, after averring the same facts, charges the crime of willfully and unlawfully taking and carrying away the same property which the first count charged him with having stolen. The crime charged in the first count is a felony; in the second a misdemeanor. It is argued that in the absence of a certificate under the provisions of section 57 of the Code of Criminal Procedure the Supreme Court was without jurisdiction to inquire into the matter, and that the jurisdiction of the grand jury was limited by that of the court of which it is an appendage. This contention is without merit. The grand jury had jurisdiction of the felony charged, notwithstanding the same facts might constitute an additional and different crime. (Code Crim. Proc. § 279.) Having jurisdiction of the major crime, the court had jurisdiction of any crime arising out of the same facts. Under the third assignment of error it is contended that the minutes of the trial court show that the defendant was convicted of both crimes charged in the indictment, while the certificate of conviction recites grand larceny in the second degree. It is sufficient answer to this contention to say that this does not appear by the rec Second Department, April, 1909. [Vol. 132. ord before us. The authority for holding the defendant is the certified copy of the entry of the judgment of conviction. (People ex rel. Trainor v. Baker, 89 N. Y. 466; People ex rel. Dauchy v. Pitts, 118 App. Div. 457.) The order must be affirmed. WOODWARD, JENKS, GAYNOR and BURR, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. SHINNECOCK HILLS AND PECONIC BAY REALTY COMPANY, Appellant, v. FRANK E. ALDRICH and WILLIAM ALDRICH, Respondents. Second Department, April 30, 1909. Real property deed construed - provision excepting lands from conevidence showing title of defendant veyance trespass evidence – presumption of grant by long occupancy-adverse possession of salt meadows. Where a grantor excepts from the conveyance lands within the described boundaries, the exception in the case of an ambiguity is to be taken most favorably to the grantee. But if the exception be so vague that the lands cannot be identified nothing is excepted. Deeds are construed the same as other contracts, and the court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words used, their context and the surrounding circumstances. Action for trespass upon lands. The plaintiff claimed under a deed, including the lands in dispute. The instrument, however, excepted from the conveyance all such meadows and marshes within the boundaries as have "heretofore been allotted to and are now owned by particular individuals." The defendant claimed that the lands upon which he committed the alleged trespass had been allotted in 1654, though he was unable to trace a paper title to any of the allottees. On all the evidence, held, that the exception contained in the plaintiff's deed was not void for indefiniteness, and that the lands upon which the defendant is alleged to have trespassed had actually been allotted and were excepted from the conveyance. Evidence showing acts of ownership exercised as far back as the memory of man runs is sufficient to justify the presumption of a grant. Evidence held to establish the defendant's title by adverse possession. Adverse possession of salt meadows which are incapable of cultivation is established where the plaintiff and his predecessors for over twenty years made a App. Div.] Second Department, April, 1909. regular, open and notorious use of the lands by cutting the natural grass therefrom, that being the only use for purposes of husbandry of which the land was susceptible. APPEAL by the plaintiff, Shinnecock Hills and Peconic Bay Realty Company, from a judgment of the Supreme Court in favor of the defendants, bearing date the 21st day of November, 1907, and entered in the office of the clerk of the county of Suffolk upon the verdict of a jury rendered by direction of the court after a trial at the Suffolk Trial Term (as amended), and also from an order bearing date the 19th day of November, 1907, and entered in said clerk's office denying the plaintiff's motion for a new trial made upon the minutes. J. Edward Swanstrom [Conrad S. Keyes with him on the brief], for the appellant. Timothy M. Griffing [Thomas Young with him on the brief], for the respondents. MILLER, J.: This action was brought to enjoin a trespass, but it was tried upon the stipulation of the parties as an action at law for damages. At the close of the evidence both sides moved for the direction of a verdict and the defendants' motion was granted. The dispute is over the title of a strip of salt meadow and beach on the southerly side of Cold Spring Harbor in the town of Southampton, Suffolk county. The plaintiff is the owner of the uplands adjoining the strip in dispute. The plaintiff derives title from a deed made March 21, 1861, by the "Trustees of the Proprietors of the Common and undivided lands and marshes or meadows in the Town of Southampton "to Lewis Scott and others. It is conceded that the description in that deed includes the premises in dispute, but the deed contained an exception in the following words: "And excepting from this conveyance all such meadows and marshes within the aforesaid boundaries as have heretofore been allotted to and are now owned by particular individuals in severalty or otherwise, and also further excepting from this conveyance all land covered with water where the tide ebbs and flows within said bounds. It being the intention of this conveyance and it shall be so construed as to convey said |