*

used, to some extent. For example, in the permissive part of the fifth clause it states, "But this section does not apply to the employment of any child as a musician in any concert or in a theatrical exhibition;" the word "musician" qualifying both the subsequent clauses of the sentence. But, when they de sire to separate the different classes of doings, they use the proper signs. For example, when they desire to separate singing from dancing, they place a semicolon between the two phrases, and, when they desire to separate playing upon a musical instrument from appearing in a theatrical exhibition, they put a semicolon between them, in order to show that they are independent phrases, having no relation, the one to the other. But in the fifth clause, when they come to determine the cases in which the child may be exempt from the general prohibition contained in the previous part of the section, they specify the name and character of the performance which it was the intention of the legislature to exempt, viz. "as a singer or musician in a church, school or academy; or in teaching or learning the science and practice of music; or as a musician,”—where? "In any concert, or in a theatrical exhibition." This seems to show clearly what was the intention of the legislature, and that the whole permissive part of subdivision 5 related to the musical question, and nothing else; and therefore the word "musician," in the phrase under consideration, qualified both concert and theatrical exhibition. The order should be affirmed, with costs.

O'BRIEN, J., concurs.

(70 Hun, 243.)

In re STEVENS.

(Supreme Court, General Term, First Department.

June 20, 1803.)

Application by Benjamin D. Stevens for writs of habeas corpus and certiorari. From an order dismissing the writs on demurrers to the returns of the warden and police magistrate, and remanding the applicant to the custody of the warden, the applicant appeals. Affirmed.

Benjamin D. Stevens, the appellant, who is manager of a theatrical troupe. publicly exhibited in the Broadway Theater, in the city of New York, on September 5, 1892, a little girl named Lillian Kline, aged five years, in sing ing and dancing, in a play called "Wang," performed therein. He was ar rested September 7, 1892, upon a warrant issued by a police justice of said city, at the instance of the New York Society for the Prevention of Cruelty to Children, charged with a misdemeanor, in violating section 292 of the Penal Code, which prohibits the exhibition of a child under the age of 16 years in singing or dancing. Upon the examination which thereupon took place, the facts alleged were proven, but he claimed to have a consent in writing from the mayor of the city of New York, legalizing the exhibition. He was duly committed by the magistrate to await the action of the grand jury. Immediately writs of habeas corpus and certiorari were issued by this court. The warden returned the body of the appellant, in custody, with the commitment. The magistrate returned the complaint, warrant of arrest, and testimony taken on the examination. Special demurrers were then interposed to each return, and a hearing had before Mr. Justice BEACH, who

dismissed the writs, and remanded the prisoner, upon the grounds stated in his opinion. From the orders of dismissal, the present appeal is taken. Argued before VAN BRUNT, P. J., and O'BRIEN and LAWRENCE, JJ. Lucien Oudin, for appellant.

De Lancey Nicoll, Dist. Atty., and Elbridge T. Gerry, for respondents.

LAWRENCE, J. We think that the construction given to chapter 309 of the Laws of 1892, amending section 292 of the Penal Code, by the learned justice before whom the writs of habeas corpus and certiorari were brought at the special term, was correct; and, adopting his opinion' as our own, an affirmance of the orders appealed from is directed, and the prisoner remanded. All concur.

f

GARLAND et al. v. VAN RENSSELAER et al.

(Supreme Court, General Term, Second Department. July 28, 1893.)

1. MECHANICS' LIENS-LOTS SOLD ON CONTRACT.

Laws 1885, c. 342, § 1, provides that any person performing labor or furnishing material in the erection of a building, with the consent of the owner, may have a lien on the building and lot. Section 5 provides that, where the owner has agreed to sell and convey the premises, he shall remain the "owner," within the meaning of the lien law, till the deed has been delivered and recorded. Held, that one who, by agreement with the purchaser in an executory contract to sell land, and with the consent of the vendor, erects a house on the land, has a lien on the house and lot as against the vendor.

2. SAME-RELEASE-BOND OF OWNER-ACTION ON- -PARTIES.

In an action on a bond given by the owner under section 24 of the lien law to release the premises from liens, conditioned for the payment of any judgment that might be rendered against the premises in any proceeding to enforce the lien, while the bondsmen are not necessary parties, the purchaser of the lot is a necessary party, for the purpose of establishing the lien.

Appeal from special term, Westchester county.

Action by Horace W. Garland and another against Cortlandt S. Van Rensselaer and the Commonwealth Security & Improvement Company. From a judgment for plaintiffs against defendant Van Rensselaer, entered on an order overruling his demurrer to the complaint, on the ground that it showed no cause of action as against him, he appeals. Affirmed.

The complaint alleged that defendant Van Rensselaer, at all the times mentioned therein, was seised in fee simple and possessed of certain land in the county of Westchester; that prior to October 1, 1891, he entered into a contract with the defendant the Commonwealth Security & Improvement Company, whereby he agreed to sell the land to said company, and, pursuant thereto, the company entered into possession of the premises; that thereafter, prior to November 28, 1891, while the company was in the lawful possession of the premises under said contract, and before the performance and completion of the same, plaintiffs, at the request of the company, and with the knowledge and consent of Van Rensselaer, erected on the premises a building, and furnished the labor and material therefor; that the company agreed to pay plaintiffs $150 for the construction of the building, and the building was reasonably worth that sum; that within 90 days after completion of the

For the opinion of Mr. Justice BEACH, here referred to, see People v. Grant, 24 N. Y. Supp. 776, with which this case and four others were heard at special term, all being disposed of by the same opinion.

building, on January 12, 1892, while the company was in possession of the premises under the contract of sale, plaintiffs filed in the office of the clerk of the county of Westchester the notice required by law to effect a lien, and that this notice was referred to and made part of the complaint as if set forth; that plaintiffs, while the company was in possession of the premises, under the contract of sale, served the notice of lien on both defendants on January 14 and 15, 1892; that thereafter the company relinquished to Van Rensselaer all its rights and interest in the premises, together with the building erected thereon by plaintiffs; that thereupon Van Rensselaer resumed possession of the premises, subject to plaintiffs' lien; that Van Rensselaer, on February 26, 1892. executed, and caused to be filed in the office of the clerk of the county of Westchester, his bond, bearing date February 26, 1892, in the sum of $500, with two sureties, conditioned for the payment of any judgment that might be rendered against the premises in any proceedings to enforce the lien, and that thereupon, after service of the same on plaintiffs, and on the approval and filing of the bond, an order of court was made and entered in the office of the clerk of Westchester county, March 8, 1892, wherein and whereby it was ordered that the lien be discharged, and directing the clerk of the county to cancel the same of record, and the bond and order were referred to and made part of the complaint, as if fully set forth; that no part of said sum had been paid, though demanded; and that there was due and owing from defendants to plaintiffs $150, wherefore plaintiffs demanded judgment against defendants for $150, with interest and costs. Argued before BARNARD, P. J., and PRATT, J.

Howard Allison, (Isaac N. Miller, of counsel,) for appellant. E. B. & C. P. Cowles, (Charles P. Cowles and Justus A. B. Cowles, of counsel,) for respondents.

BARNARD, P. J. Under the lien law (chapter 342, Laws 1885)1 the plaintiffs had a lien on the land in question. The defendant Van Rensselaer contracted to sell the same to the defendant the Commonwealth Security Company. The security company built a small house on the land, with lumber obtained of the plaintiffs, with the knowledge and consent of Van Rensselaer. By the fifth section of the lien act, Van Rensselaer was to be deemed the owner until the deed was actually delivered. By the twentyfourth section of the act, the owner, by filing a bond with surety, can procure an order discharging the lien. Such a bond was given and approved by the court, and an order entered that the lien be discharged and canceled of record. The bond and order an made part of the complaint by an allegation to that effect, and not by the actual annexation of a copy thereof to the complain' It does not appear who signed the bond besides Van Rensselaer. Van Rensselaer alone demurs. His demurrer was properly overruled. He could only be made liable by proof that a lien actually

'Laws 1885, c. 342, § 1, provides that any person who shall perform any labor or services, or furnish any materials which have been used, or which are to be used, in erecting, altering, and repairing any house, building, or building lot, with the consent of the owner, may have a lien on the house and lot.

Section 5 provides, in cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall be deemed to be the "owner," within the intent and meaning of this act, until the deed has been actually delivered and recorded, conveying said premises pursuant to such agreement.

existed on his property. That made the defendant company a necessary party. It was not necessary that the plaintiffs should make the sureties to the bond parties. be sued alone upon it. Code, § 454.

The principal debtor can The order overruling the

demurrer and the interlocutory judgment upon it must therefore be affirmed, with costs.

GARLAND et al. v. VAN RENSSELAER et al.

(Supreme Court, General Term, Second Department. July 28, 1893.)

1. DECISION-WHAT CONSTITUTES-FILING.

The entry of an order for judgment in favor of plaintiff on the overruling of a demurrer to a complaint, with leave to answer on payment of costs, is a sufficient compliance with Code Civil Proc. § 1010, providing that, on a trial by the court, its decision must be filed within a certain time after final adjournment of the term.

2. SAME-DIRECTING FINAL JUDGMENT.

An order that a demurrer be overruled, and that plaintiff have judgment thereon, with leave to defendant to answer on payment of costs, is a final order for judgment if the terms are not accepted, and therefore complies with Code Civil Proc. § 1021, providing that the decision of the court on the trial of a demurrer must direct the final or interlocutory judgment to be entered thereon.

Appeal from special term, Westchester county.

Action by Horace W. Garland and another against Cortlandt S. Van Rensselaer and another. From an order denying a motion to vacate a judgment entered on an order overruling a demurrer of Van Rensselaer to the complaint, he appeals. Affirmed.

Argued before BARNARD, P. J., and PRATT, J.

Howard Allison, (Isaac N. Miller, of counsel,) for appellant.

E. B. & C. P. Cowles, (Charles P. Cowles and Justus A. B. Cowles, of counsel,) for respondents.

BARNARD, P. J. The defendant Van Rensselaer demurred to the complaint of the plaintiffs. The demurrer was overruled, and judgment ordered in favor of the plaintiffs therein, with leave to the defendant to answer within 20 days, upon the payment of $20 costs. The order was entered on the 28th of January, 1893, and a copy, with notice of the entry thereof, was served on the attorney for the defendant on the 3d of February, 1893. The costs were not paid, and no answer was served within the time. The plaintiff entered judgment upon the demurrer in his favor, March 1, 1893. The demurring defendant made a motion to set aside this judg ment as irregular, in that no decision had been made and filed under sections 1010 and 1021 of the Code.1 The order for judg

1

1 Section 1010 provides that, "upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed in the clerk's office within twenty days after the final adjournment of the term where the issue was tried."

Section 1021 provides that "the decision of the court upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon."

ment was a sufficient decision under section 1010 of the Code. Eaton v. Wells, 82 N. Y. 576; Wood v. Lary, 124 N. Y. 83, 26 N. E. Rep. 338. The order for judgment was final if the terms were not accepted, and the judgment was regular, under section 1021, for that reason. The order should be affirmed, with costs and disbursements.

EQUITABLE LIFE ASSUR. SOC. v. BRENNAN.

(Supreme Court, Special Term, New York County. January, 1893.)

1. COVENANTS-RESTRICTING USE OF LAND.

The owner of a parcel of land in a city conveyed portions of it to various persons, with covenants restricting the use of the portions conveyed. Afterwards he conveyed the residue of the parcel to defendant's grantor, subject to the same restrictive covenants. Held, that the covenants in the last deed were for the benefit of the prior vendees. 2. SAME-CHANGE IN USE OF PREMISES.

Where land abutting on a street occupied by railroad tracks was conveyed subject to certain restrictions as to its use by the grantees, a subsequent increase in the number of trains passing through the street, and switching them near the land conveyed, is not a change in the use of the street such as will prevent equity from enforcing the covenant, but it is a mere aggravation in the use contemplated by the parties.

3. EQUITY-JURISDICTION-AWARD OF DAMAGES.

In an action to restrain the erection of a stable on defendant's lot adjoining that of plaintiff in violation of a restriction placed on both lots by a former owner, where it appears that defendant's stable has been com pleted, and that the building on plaintiff's lot is an apartment house, and not his home, an injunction will be granted, to be avoided on payment of the damages caused to plaintiff's property.

Action by the Equitable Life Assurance Society against Brennan to restrain the use of defendant's premises as stables. Judg. ment for plaintiff.

Before MICHAEL H. CARDOZO, Esq., Referee.

Lord, Day & Lord, (Lucius H. Beers, of counsel,) for plaintiff. Guggenheimer & Untermyer, (Moses Weinman, of counsel,) for defendant.

CARDOZO, R. Prior to April 15, 1881, the trustees of St. Patrick's Cathedral were the owners of the block of land in the city of New York, bounded westerly by Madison avenue, easterly by Fourth (or Park) avenue, northerly by Fifty-First street, and southerly by Fiftieth street. One J. Augustus Page contracted to buy from the trustees this block of land, and in his contract of sale agreed that the westerly half of the block should be restricted as therein provided. By deed bearing date April 15, 1881, the trustees conveyed to Henry Villard, with the consent of said Page, that portion of the block which fronts on Madison avenue, being 200 feet and 10 inches in front on said avenue, and 125 feet in depth on Fiftieth and Fifty-First streets. In this deed the following covenant, pursuant to the terms of said contract, was inserted: