Y. 225; Swords v. Edgar, 59 N. Y. 39; Wasmer v. Railroad Co., 80 N. Y. 212.

The court instructed the jury that no recovery could be had against this defendant unless it knew, or ought to have known, or bad notice, before the 1st of May, 1885, that the wall was in a dangerous condition. In view of this charge and of the evidence of opportunity to acquire notice, the refusal to charge that the notice given by the policeman after that date was immaterial could not be expected to prejudice the defendant. We have examined all the other exceptions, and find none require a reversal. Judgment affirmed, with costs. All concur.

BENSON v. TOWNSEND et al.1

(Supreme Court, General Term, Second Department. September, 1889.)

1. TRIAL-REQUEST TO DIRECT VERDICT.

When a party asks the direction of the verdict in his favor, and on a denial requests the submission of only one fact to the jury, he submits the determination of all other facts involved to the court.

2. SAME-SUBMISSION TO JURY.

The refusal of a request to submit a single question of fact to a jury is not erroneous, unless a finding of that fact in the party's favor would conclusively determine his right to a verdict.

8. DEED-DESCRIPTION-LAND ON TIDE-Water.

*

**

The owner of land on a bay conveyed an acre at the end of the tract nearest the bay, described as follows: "Beginning * * by the beach, running * along the beach to," etc. In the general description of the tract it was bounded "easterly by the said beach. " The grantee was given the privilege of a road from the middle of the front of the lot to the bay, and also half the drift coming on shore in front of the lot, and all the other privileges of the beach were reserved by the grantor, who bound himself not to build any house in front of the lot. The courses and distances would not carry the boundary to high-water mark. Held, that the beach did not pass by the deed.

4. ACTION TO QUIET TITLE-DISMISSAL.

In an action to determine the right to land, when plaintiff fails to prove possession or title, his complaint should be dismissed, and a general verdict should not be found in favor of defendant, unless he has established his own title.

Appeal from circuit court, Richmond county.

Action by Constantine W. Benson against Henry D. Townsend and others. Judgment was rendered for defendants, and plaintiff appeals.

McFarland, Boardman & Platt, for appellant. George J. Greenfield, Winson & Marsh, and George S. Scofield, for respondents.

CULLEN, J. This is an action, brought under the statute, to determine claims to real property. The complaint alleged possession in the plaintiff and his grantors of the premises described in the complaint for more than three years. The answers of the defendants put in issue the possession of the plaintiff or his grantors, and set up title in themselves. At the close of the plaintiff's case the defendants asked for a dismissal of the complaint upon the ground that the plaintiff had failed to prove an actual possession of the land in controversy. This application was denied. At the close of the evidence both parties moved for a direction of the verdict. The defendants' request was granted, and a verdict directed in their favor. The plaintiff then asked to go to the jury on the question whether in 1807 there was a strip of upland between the lot of Perrine (plaintiff's remote grantor) and the waters of the bay. This request was denied. Judgment was entered upon the verdict, and from that judgment this appeal was taken.

As the plaintiff asked a direction of the verdict in his own favor, and upon a denial requested the submission of only one fact to the jury, it submitted the determination of all questions involved save that one to the court. Kirtz

1Modifying 4 N. Y. Supp. 860.

v. Peck, 113 N. Y. 222, 21 N. E. Rep. 130. It is therefore only necessary for us upon this appeal to decide-First, whether the evidence adduced on the trial would have justified a verdict for the defendants; and, second, whether a finding of the disputed question of fact in plaintiff's favor would have conclusively determined his right to the verdict. The lands in dispute are a narrow tract of shore or beach lands between the bluff and the waters of the New York bay and a tract of land under water adjacent to and in front of such strip. The common source of the title of both parties is concededly Margaretta Cripps and Elisha, her husband. Prior to the year 1795 these persons owned a farm, which included the premises in question, extending down to high-water mark. In 1805, Cripps and his wife conveyed to Cornelius Perrine one acre of land. It is through this conveyance that the plaintiff traces his title, and it is as to its construction that the principal question in this case arises. This deed conveys a plot "beginning at the north corner of a smokehouse now standing by the beach, running north, 55° west, 2 chains 75 links, along the beach, to the line between the lands and salt meadows of said Cripps and Cornelius Corsen;" thence by various courses to the place of beginning; "bounded northerly by the meadow of Cornelius Corsen, southerly and westerly by other land of said Cripps, and easterly by the beach." After this description and the ordinary covenants as to title, follows this covenant: "And it is further covenanted and agreed by and between the parties to these presents that it may and shall be lawful to and for the said party of the second part to have the privilege of a road from the middle of the front of said acre lot of 20 feet broad down to the bay or water, to take off or put on whatever he sees fit, without incumbering the road or shore; and also to allow the said party of the second part, his heirs and assigns, one-half the profit arising from the drift that comes on the shore in front of said lot, and to pass and repass to get the said drift, and no other right of the beach or shore; and the said party of the first part, for himself, his heirs and assigns, doth further covenant that they will not build any house in front of said lot. All other privileges of said beach and shore the said party of the first part doth reserve to himself and to his heirs and assigns." The plaintiff contends that this description carried the grant to high-water mark on the bay. The judge at circuit held to the contrary. We think that ruling was correct. We think it not possible to distinguish in principle this case from that of People v. Jones, 112 N. Y. 597, 20 N. E. Rep. 577. The question in the case cited, as in the present one, was whether the grant extended to the water or not. In the description then before the court the boundary ran to the beach, and thence in a line at right angles to the previous course. In this deed the boundary begins by the beach, and runs along the beach. This description, it must be conceded, much better supports a claim to extend to high-water mark than that in the other case. But the decisive point on the interpretation of the deed was held by the court of appeals to be the grant of the easement in the beach, which was deemed inconsistent with a previous grant of the beach. In this respect the deed before us is far stronger than that in People v. Jones. The grantor gives a road 20 feet wide over the beach to the bay, and half of the drift that may be cast on the shore. He covenants not to build in front of the granted premises, and expressly reserves all other privileges of the beach or shore to himself. This is plainly inconsistent with the claim that the grant extended to the water. The evidence shows that a bluff rises some distance from the high-water mark; this distance varying from time to time as the water makes inroads on the shore or recedes. Such a strip between a bluff and the water is commonly called the "beach." That term in the deed can therefore be well satisfied by giving it its ordinary, instead of its technical, legal interpretation, when it is palpable that such was the signification intended. This construction is further supported by the fact that exact dimensions of the plot were given, and that the dimensions of the plot as occupied

under the grant do not extend to the water. Though the plaintiff failed to show title, this would not authorize the verdict in favor of the defendants, for, the plaintiff's possession being proved, the defendants were bound to show a paramount title.

The examination of the deed to Perrine has shown that there remained in Cripps, after that conveyance, a strip of land between the acre lot and the waters of the bay. The defendants trace their title by a regular chain from Cripps, and if they have shown succession to all that was held and possessed by the Crippses, their title is established. The plaintiff assails but one link in that chain. After the death of Cripps and wife their heirs brought proceedings for the partition of their property, and a sale was held. It is contended that the deed on such sale did not convey the lands in dispute. The petition by which the proceedings were instituted avers that the parties are tenants in common of a certain farm in Southfield, whereof Elisha Cripps died seised, "bounded easterly by the bay or narrows, southerly by land of John Seguine, westerly by land of Richard Silve, and northerly by land of Cornelius Perrine and Cornelius Corsen, containing twenty-five acres, more or less." The commissioners reported that they had been appointed to make partition of "the farm of which Elisha Cripps died seised," and that partition could not be made without prejudice to the interests of the parties. On this an order for sale was made. The deed from the commissioners recites the petition for the partition of "the farm of which Elisha Cripps and Margaretta, his wife, died seised, bounded," etc.; the proceedings thereon; the sale and the confirmation; and then grants and conveys the right and title of the parties to the proceedings "to the premises last above described." Plaintiff claims that this description excludes the strip between the Perrine lot and the bay. We think not. The lands sold were the farm of which the Crippses died seised. This should be construed to pass the whole farm, unless the boundaries subsequently mentioned necessarily exclude any part of it. The boundaries named are subject to criticism as to technical accuracy in either view that may be taken as to the extent of the grant. But the inaccuracy is greater if we suppose the beach strip to be excluded. In such case the ordinary and natural way would be to bound the premises on the east by lands of Perrine and the bay. But the sole easterly boundary given is the bay or narrows. This boundary is correct if the beach strip is included, but incorrect if it be excluded. The boundaries named, therefore, do not tend to limit the previous general description of the farm of which the Crippses died seised. Hence we think the defendants established their title to the upland.

We do not see how the question on which the plaintiff asked to go to the jury would have affected the result at which we have arrived. If in 1807 the upland in front of the Perrine lot had entirely disappeared, when it was again restored the title of the former owner would attach. Mulry v. Norton, 100 N. Y. 424, 3 N. E. Rep. 581. Complaint is made as to the boundaries of the upland given in the judgment. There was no request to submit this question to the jury. The boundaries are those fixed by the map of the water grant to plaintiff's grantor, and their correctness is established by the evidence of the surveyor, Mr. Root.

The

The verdict directed was a general one in favor of the defendants. judgment entered thereon was not only for the recovery of upland, but declared that the grant from the state of the land under water was void. Assuming that the grant to Cook was void in such a sense that it might be attacked collaterally, as we believe to be the law, still the defendants were not in a position to attack it. In an action of this character, if the plaintiff fails to prove possession, the defendants may have the complaint dismissed; but to have a judgment in their favor they must prove their own title. The want of title in the plaintiff is not sufficient for that purpose. The defendants, having obtained no grant from the state of the lands under water, have no

title to such lands. The title still remains in the state. The provisions of the judgment in this respect were unauthorized. The direction of a general verdict in favor of the defendants was probably erroneous for the same reasons. But no question of the kind seems to have been raised on the trial. After the refusal of the request for the direction of a general verdict in his favor, no request was made by plaintiff for a direction as to the land under water. We also think that the plaintiff had failed to prove such possession of the land under water as would warrant the maintenance of the action, and that the complaint should have been dismissed as to such lands. As no exception raises the exact point as to defendants' lack of title to the land under water, we do not feel compelled to reverse the judgment and order a new trial upon that ground. The rights of all parties will be preserved by reversing the portion of the judgment relative to the lands under water, and dismissing the complaint as to such lands. The remainder of the judgment should be affirmed, without costs of this appeal to either party.

In re Town BOARD OF LLOYD.

(Supreme Court, Special Term, Albany County. October 15, 1889.) TOWNS-TOWN BOARD-MANDAMUS.

Under Laws N. Y. 1869, c. 855, amended by Laws 1874, c. 260, providing that the town board shall meet on the first Monday of September, to determine what amount, if any, shall be borrowed on the credit of the town, and for what roads or bridges such amount shall be borrowed or appropriated, an adjournment of the board without determining the amount is equivalent to a refusal-which is within their discretion to borrow any amount, and they cannot be compelled by mandamus to meet and come to a formal conclusion.

On application for a peremptory mandamus.

D. W. Ostrander, for petitioners. A. D. Lent, for town board. S. G. Carpenter, for highway commissioner.

LEARNED, P. J. On the application of Daniel J. Donaldson and others to the commissioner of highways, in January, 1889, for the laying out of a new highway, such proceedings were had that such new highway was laid out by the order of the commissioner in February, 1889, and subsequently the owners of the land through which the road was to run released the same. Whether the proceedings were in all respects regular I need not say at present.

At a meeting of the town board, July 27, 1889, the commissioner of highways was authorized to advertise for proposals for building the road. On the first Monday (the 2d) of September, 1889, there was a meeting of the town board, viz., the supervisor, the town-clerk, four justices, and the commissioner of highways. The bids for building the highway were opened by the commissioner of highways at the meeting. One of the residents of the town urged that the board make an appropriation to build said road. One of the board opposed, claiming that the former proceedings were void, and that the board could not legally vote the funds. The meeting then adjourned, without taking any action. The original applicants for the laying out of the road now apply for a peremptory mandamus to require the town board to convene and determine what amount, if any, shall be borrowed on the credit of said town to build said road. This motion came on to be heard on the last Tuesday of September. The full examination of the case was not completed by the court until after the 7th of October.

The motion is made to compel action under chapter 855, Laws 1869, as amended by chapter 260, Laws 1874. The first section requires the town officers aforesaid-sometimes called the "town board"-to meet on the first Monday of September, to determine what amount, if any, shall be borrowed on the credit of the town for the purposes mentioned in that section, and for what roads or bridges such amount shall be borrowed or appropriated. The

previous part of the section authorizes the boards of supervisors to authorize the supervisor of any town, with the consent of the commissioner of highways, justices, and town-clerk, to borrow on the credit of the town such money as they may deem necessary, among other things, to build a road. Another provision of the section is that the board may adjourn, but no meeting shall be held subsequent to the first Monday of October. This provision would seem to prevent the court from granting the writ, since that day has passed. But I think there are other objections. The board is not required to borrow any money. They are to determine what amount, if any, shall be borrowed. Now, it is true that there are certain cases where the court will by mandamus compel a board to act, without directing how it should act. And it is probably in this view that this motion is made. The petitioners desire that the board should act in some way, and not merely neglect to act. When, however, the statute permits the board to determine what amount, if any, shall be borrowed, and the board does not determine to borrow any, this appears to be a refusal to borrow. And this refusal is within their discretion. They may think it advisable that the town should not borrow, but that any needed money should be raised by tax. Borrowing money is not the only, nor is it the best, way of making public improvements. I do not think that the statute requires the town board to borrow the money needed, even if they are of the opinion that the road has been legally laid out. The general rule is that towns should pay by tax in every year the proper expenses incurred, or to be incurred, within the year. And while the provisions of this statute may be occasionally useful where an unusually large expenditure is required, the court cannot compel the town board, against its own judg. ment, to run the town into a bonded debt. Chapter 615, Laws 1857, seems to give the commissioner of highways the opportunity to bring before the town-meeting the necessity of a larger sum of money. Should the town raise the money, the need of a loan will not exist. Of course I express no opinion as to the desirableness of the proposed highway, or as to the regularity and legality of the proceedings to open it. The motion for a peremptory mandamus is denied, with $10 costs.

PORTER v. SEWALL SAFETY CAR-HEATING CO.

AMERICAN LIGHTING Co. v. Same.

(Supreme Court, Special Term, New York County. August 5, 1889.)

FOREIGN CORPORATIONS-SERVICE OF PROCESS.

Under Code Civil Proc. N. Y. § 432, subd. 3, providing that in the absence of the principal officers of a foreign corporation service may be made on a managing agent "within the state," service on the general manager of a foreign corporation, while within the state temporarily, and not performing the duties of his office, is sufficient. At chambers. On motion to set aside service of summons. John S. Moulton, for plaintiffs. James McKeen, for defendant.

O'BRIEN, J. The service of the summons in both of the above-entitled actions was made upon the vice-president and manager of a foreign corporation, while he was visiting at Saratoga, which it is claimed is void under section 432 of the Code, for the reason that he was not temporarily or permanently performing the functions of vice-president or general manager within the state. The contention presented is to be determined by the construction or meaning of the words "within the state,” as found at the end of subdivision 3 of said section. The first subdivision of section 432 of the Code, relating to service upon a foreign corporation, provides that it must be made by delivering a copy thereof, within the state, to the president, treasurer, or secretary. If such officer cannot be found, and the corporation has property within the state, or the cause of action arose therein, service must be made by delivering