after that he cut nothing until the logs in question were cut. These were cut westerly of the line as run in 1851. So that if that is to be deemed the correct easterly line of Sutton and the defendant, then the plaintiff is not the owner of the logs. Vos It is quite apparent from the record before us that the parties in 1851 were not in the act of locating the line as run in the contract. There was no doubt where that went. But Sutton claimed that the line in the contract did not give him all the land he wanted, did not take him far enough up on the hill. Thereupon a change was made by parol which if carried out would give Sutton about six acres more and place his line at or near the top of the hill. It was not, therefore, a case of locating a disputed boundary, but a parol agreement to sell further land and designating the line. It was void by the statute of frauds, burgh v. Teator, 32 N. Y., 568. In that case it is said: "that parol agreements to change or establish boundary lines, when there is no dispute or uncertainty, are within the statute of frauds, which require a writing to pass title, thus distinguishing between cases where the line is disputed or uncertain and those which are not so, the former being binding upon the parties, the latter not.' In the present case no such possession was taken as would furnish a basis for adverse possession. Code Civ. Pro., § 370, et seq. It was not enclosed or improved or cultivated, and was not founded on a written instrument, as the contract did not cover it. Pope v. Hanmer, 74 N. Y., 240. When the deed came to be given and accepted in 1873, the description in the contract was followed, thus apparently disregarding and abandoning any parol agreement that may have been made to the contrary. We think the court did not err in declining to submit the question of practical location to the jury. Assuming it was so located, it did not give title to Sutton or the defendant. There is no question of estoppel in the case. The defendant offered to show by a witness that in the year 1847 he heard a conversation between Micah White and Sutton, whereby it was agreed that the boundary line between the lot occupied by Sutton and the lot known as the Gregory lot should be on the height of ground as it run up to the north line of lot No. 4. This being objected to was excluded. If the views above stated in regard to similar and stronger evidence on the subject of practical location are correct, then it follows that this ruling was correct. It is further suggested that the plaintiff had not such a possession of the real estate as would authorize him to maintain replevin for the logs. Having the title, he had constructive possession and that was sufficient, Johnson v. Elwood, 53 N. Y., 433, in view of the fact that the acts of defendant were not of such a character as to furnish a basis for adverse possession. There is no other question that calls for consideration. HARDIN, P. J., concurs; MARTIN, J., not sitting. MICHAEL WOODS, App'lt, v. BRIDGET KERNAN, Resp't. (Supreme Court, General Term, Fourth Department, Filed July 1, 1890.) 1. SUMMARY PROCEEDINGS-REVERSAL. Plaintiff appealed from a judgment in summary proceedings, entered on his default, dispossessing him on the ground that his lease had expired. The appellate court decided that no error of law existed for reversal, but that the default might be opened on payment of costs, and judgment was entered providing that on payment of costs the final order be reversed and new t ial granted and on such new trial defendant succeeded. Held, that this was a reversal within the meaning of § 2263 of the Code, which allows the recovery of damages by the person dispossessed. 2. SAME-ACTION BY TENANT FOR DAMAGES. Failure of the tenant to re-enter after restitution does not deprive him of the right to recover for any loss suffered up to that time. 3. SAME. In an action to recover damages for being unlawfully dispossessed the tenant is not restricted to the injury to his goods in the removal, but is entitled to recover the value of the use of the premises over and above the rent, including the value of the crops and fruit thereon. APPEAL from a judgment entered in Onondaga county on the 25th day of July, 1889, upon the verdict of a jury, Onondaga circuit, May, 1889, in favor of the plaintiff for fifteen dollars, and from an order denying a motion made by the plaintiff upon the minutes for a new trial. The verdict being less than fifty dollars, the defendant recovered costs. ant. W. Gilbert, for app'lt; Goodelle & Nottingham, for resp't. MERWIN, J.-This action was brought by the plaintiff to recover damages for being unlawfully dispossessed from certain premises in the city of Syracuse rented by plaintiff from defendOn the 2d August, 1888, this defendant, claiming that the tenancy expired on the 1st August, 1888, instituted summary proceedings for the removal of the plaintiff. A precept was obtained from a justice of the peace returnable at 4 P. M. of the same day. This was duly served at 1:30 P. M. The present plaintiff, being the defendant in that proceeding, did not appear, and judgment by default was rendered against him and a warrant issued to dispossess him. Under this warrant the defendant therein was dispossessed on the 7th August. He appealed to the county court, his appeal being based, first, upon errors of law, and, secondly, upon affidavits presented for excusing his default and showing a defense, and asking for a new trial before the same or another justice. The matter was duly heard in the county court and it was there decided that no error of law existed for the reversal of the judgment, but that the default might be opened upon the payment of ten dollars costs. Accordingly, on the 15th January, 1889, judgment was entered providing that upon payment of said costs "then the final order awarding possession of said premises to the plaintiff be and the same is hereby in all things reversed and a new trial directed before S. F. Belknap, a justice of the peace, in Syracuse, at his office, on 22d January, 1889, at two o'clock in the afternoon, and restitution of the premises described in the petition is hereby ordered and awarded to appellant." The costs were paid and the case came to trial as directed, and on the 28th January judgment was given in favor of the defendant therein, dismissing the petition, with costs, thus determining that at the time of the commencement of the proceedings, on 2d August, 1888, the landlord was not entitled to possession. The claim of the tenant was that his tenancy did not expire until May 1, 1889. The tenant did not re-enter, but commenced this action on March 1, 1889. In the trial under review, it was shown on the part of the plaintiff that his household goods were considerably damaged at the time of their removal by the officer with the aid of the defendant or her agent. It was also shown that there was then in the garden on the premises a crop of potatoes and of corn of some value, and also pear trees upon which there was fruit in considerable quantity, and evidence was given as to their value. At the close of the plaintiff's case, it was held by the court that the recovery must be limited to the actual injury by the acts of the defendant to the personal property of the plaintiff, and that plaintiff could not recover damages occasioned by the removal, nor for the loss of the possession of the property, nor for any fruit growing on the premises or any of the garden crops. The plaintiff duly excepted. It was assumed that before the order was made for restitution, the crops and the fruit had been used or disposed of by the defendant. The theory of the court seems to have been that the plaintiff by reason of his default was estopped from claiming any damages occasioned by the removal. Assume that this may be so, so far as any inconvenience may have arisen by the act of removal, or any expense may have been incurred in the removal of his goods after the dispossession or in obtaining another dwelling, I fail to see how it should apply to any loss the plaintiff may have sustained in being deprived unlawfully of the use of the property and in being prevented from gathering crops that he was entitled to have. If the use of the premises, including the crops and fruit that he might have gathered, from the time he was put out to the time restitution was ordered, was of material value over and above the rent he would have been obliged to pay, I see no good reason why the defendant should have the benefit of it. No point was made as to the rule of damages in such a case. The ruling denied any right of recovery at all on that basis. It was not claimed that the plaintiff was in default in the payment of rent. But it is suggested that there was no reversal within the meaning of § 2263 of the Code of Civil Procedure, which provides for the recovery of damages by the person dispossessed. There was in form a reversal, the adjudication was wiped out, and it was afterwards in fact finally determined that the landlord was wrong. In Hayden v. Florence Sewing Machine Co., 54 N. Y., 221, it was held that the ground of reversal in such a proceeding was immaterial. Nor did the failure of the plaintiff to re-enter deprive him of the right to recover for any loss that he had suffered up to the time that restitution was ordered. I think the court erred in restricting the right of recovery to the injuries to the goods in the removal. The plaintiff was also entitled to recover for his loss in the use of the premises from the time he was dispossessed to the time restitution was ordered, and as elements in the loss the value of the crops and fruit should have been considered. By reason of the error above stated, there should be a new trial. Judgment and order reversed on the exceptions and new trial ordered, costs to abide the event. HARDIN, P. J., and MARTIN, J., concur. JOSEPH B. HARVEY, App'lt, v. THE NEW YORK CENTRAL & HUDSON RIVER R. R. Co., Resp't. (Supreme Court, General Term, Fourth Department, Filed July 1, 1890.) 1. MASTER AND SERVANT-NEGLIGENCE. Plaintiff, a conductor, was injured by collision with a fugitive freight car in defendant's yard. The brake on the car was defective, but defendant's employees testified that they left the car on a side track without attempting to set the brake or block the wheels, either of which was permitted by the rules of the company. Held, that the injury was occasioned solely by the fault of the co-employees, for which defendant was not liable, and that under the circumstances there could be no presumption that if the brake had been in order the employees would have set it. 2. SAME. It appearing that unless there was something unusual the yard master or his assistant did not take part in the shifting of cars, and that there was a full force on hand for the work, the absence of the assistant could not be said to have contributed to the injury. APPEAL from an order entered in Onondaga county November 7, 1889, granting a motion on the minutes for a new trial. The action is based on negligence, and is bought to recover damages sustained by plaintiff from a collision on the 26th August, 1885, in the Rochester yard of defendant between a train upon which plaintiff was the conductor and a fugitive freight car. The case was tried at the Onondaga circuit, April, 1889, and a verdict rendered for plaintiff for $10,000. Thereupon a motion was made by the defendant upon the minutes for a new trial, and the order appealed from was granted. It is stated in the order that it is granted "upon the grounds that said verdict is and was contrary to the law and to the evidence, and because the defendant is not shown guilty of any act of negligence causing the plaintiff's injury." William Kennedy and George F. Hine, for app'lt; Hiscock, Doheny & Hiscock, for resp't. MERWIN, J.-There is in this case evidence tending to show that the car that collided with the train upon which plaintiff was conductor belonged to defendant, and that the brake upon it was in defective condition. The main question upon this appeal is whether such defective condition was the cause, or one of the producing causes of the acN. Y. STATE REP., VOL. XXXII. 103 cident. This car and another one with it had been standing in the defendant's yard for some hours upon a side track where the grade descended eastward. The train of plaintiff was being made up upon another side track. After the plaintiff's train was completed, and as it was proceeding out of the yard soon after midnight upon its trip eastward, the two cars came down upon their track and the first one collided with the caboose of plaintiff's train at the point of intersection of the two tracks. What started the two cars does not appear. On the part of the plaintiff there was evidence that the brakes were out of order, but no evidence whether or not they were set or whether there had been any attempt to set them. On the part of the defendant there was evidence that these cars were brought into the yard the evening before and had been placed on the track where they were by the employees of the defendant who there had the management of such cars, and had been left without setting or attempting to set the brakes or blocking the wheels. It was the duty of these employees, under the rules of the company, to have done one or the other. If they had performed their duty the accident would probably not have happened. They were co-employees of plaintiff, and their neglect is not chargeable to the defendant. It was concerning an act pertaining only to the duty of an operative, and the master is not liable to a fellow servant for the improper performance of such an act. Crispin v. Babbitt, 81 N. Y., 516. It seems difficult to avoid the conclusion that the accident was occasioned solely by the fault of the co-employees. This subject is quite fully and satisfactorily discussed by Mr. Justice Kennedy in the opinion delivered by him on granting the order appealed from, and it need not be further considered here. But it is argued on behalf of the plaintiff that the jury had the right to assume that if the brake had been in order the employee would have set it, and thus prevented the accident. This is only on the basis that it might be presumed that the employee would do his duty. The duty was to set the brake or block the wheel. The presumption would be as strong for the one as for the other. If either had been done the accident would probably have been averted. The fact that the car was in motion rebuts the presump tion in both aspects, and serves to corroborate the testimony on the part of the defendant, from the employees themselves, that they left the cars without attempting to set the brake or block the wheels. They thought it was not necessary. There is therefore no room for the inference that the accident would not have happened had the brake been in order. That being so, the condition of the brake cannot be said to be a contributing cause. The case of Lilly v. N. Y. C. & H. R. R. R. Co., 107 N. Y., 566; 12 N. Y. State Rep., 468, is pressed upon our attention. There the presumption was indulged in that the brakes if in order would have been set, and so the accident have been averted. This, however, was for the reason that there was evidence that it was usual and customary to set brakes upon a car situated as the one there in question was. The evidence in this case is different. Here it is shown to have been the custom sometimes to use blocks, and |