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The subscriptions made by the individuals, and the funds received from the several enterprises so undertaken, beyond any cavil, were paid to the defendant, and received by her for the sole benefit of plaintiff corporation; and under her repeated admissions and declarations, in writing and otherwise, she is now estopped from claiming the fund as her own, or that the fund was in fact to be devoted to other purposes, which the proof does not sustain.

The cases cited by defendant's counsel, viz., Presbyterian Church v. Cooper, 112 N. Y. 517, 20 N. E. 352, 3 L. R. A. 468, 8 Am. St. Rep. 767, and Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325, do not uphold the defendant's contention, nor are they in point, since the funds were not the defendant's funds, nor were they a part of her voluntary contribution to the enterprise. The funds were accumulated through the enterprise and efforts of persons other than the defendant. The defendant was merely acting for and with them, taking charge of said moneys, not as her own. Nor is there any evidence before the court to show that she contributed anything toward said fund, except to join in the effort and enterprise suggested. A demand was duly made upon the defendant to turn over said fund to said plaintiff corporation, and this she refused to do. I am convinced that justice requires that the defendant shall respond to the equities in this action. Judgment is therefore ordered in favor of the plaintiff against the defendant in the sum of $1,000, together with the interest thereon from and after the time when said demand was made.

Judgment for plaintiff.

(42 Misc. Rep. 317.)

KING v. WARREN, Sheriff.

(Supreme Court, Special Term, Oswego County. December, 1903.) 1. ESTOPPEL-CLAIM OF EXEMPTIONS.

Where a judgment was obtained against the sureties on an undertaking for bail in a criminal action, the fact that a surety in the justification clause stated that his property was not exempt from execution does not estop him from claiming the benefit of an exemption conferred upon him

because the property was purchased with pension money. Action by James King against Albert Warren to restrain defendant from selling plaintiff's land under an execution. Judgment for plaintiff.

Cullen & Davis, for plaintiff.
Cullinan & Bartlett, for defendant.

WRIGHT, J. The plaintiff, with three others as sureties, executed with one William T. Mullen as principal an undertaking of bail in a criminal action to secure the release of said Mullen from prison, pending an appeal from a judgment of conviction for a felony, rendered in the Oswego county court. The judgment was affirmed, and the criminal absconded. An action on the undertaking was brought in the county court against the sureties, but not against the principal. The judgment in question for $1,528.04 was obtained against the and 120 New York State Reporter sureties, and the sheriff levied upon the plaintiff's farm, which was purchased with pension money.

86 N.Y.S.-39

The defendant sheriff urges that the plaintiff is estopped from seiting up the privilege, for the reason that in his justification clause in the undertaking of bail he stated, in substance, that the said farm was not exempt. The representation complained of does not in law constitute an estoppel depriving the plaintiff from claiming the benefit of the right of exemption conferred upon veterans of the wars of our country. Robinson v. Wiley, 15 N. Y. 489, opinion by Johnson, J.; Countryman v. Countryman (Sup.) 28 N. Y. Supp. 258. In Texas, in the absence of a contrary statutory provision as exists in this state, it has been held that a statement and misrepresentation in a deed of trust or in a mortgage that the land covered by it was not a homestead would not estop the grantors from afterward asserting it to be such. Crebbin v. Moseley (Tex. Civ. App.) 74 S. W. 815; Sheckles v. Lewis (Tex. Civ. App.) 75 S. W. 836. As remarked by Judge Williams in his opinion in the case of Countryman v. Countryman, supra: “The rule is that exemption statutes should be liberally construed in the favor of the party claiming the exemption. They rest upon public policy, looking to the protection of the soldier and his family against improvidence and misfortune.” Under this rule the misrepresentation complained of in this case should in equity have no greater force than would be given to an express waiver in the justification clause of the plaintiff's right of exemption, but a waiver in that form would be void as not conforming to the statutory requirements. Code Civ. Proc. § 1404; Rutt v. Howell, 50 Iowa, 535; Terrell v. Hurst, 76 Ala. 588; Sharp v. Am. Freehold Land Mtge. Co., 95 Ga. 415, 22 S. E. 633. It follows that the plaintiff is entitled to judgment.

Judgment for plaintiff.

(42 Misc. Rep. 270.)


(Supreme Court, Special Term, Kings County, December, 1903.)


Plaintiff sued the city of New York to recover for injury to his land by driven wells and pumps situated on land adjacent to his premises The city pleaded that for more than 20 years it had pumped millions of gallons daily from such land. Held not to set up a prescriptive right to

pump the land dry as a defense based on adverse user. 2. SAME-ACTION AGAINST CITY-DECLARATION-DEFENSES.

In an action to recover against a city for damages to plaintiff's land by pumping water from adjacent premises, plaintiff failed to allege, as re quired by Laws 1901, pp. 50, 114, c. 466, $8 149, 261, that he filed his claim with the comptroller, and that the latter had neglected or refused to make an adjustment or payment thereof for 30 days after presentation. Defendant pleaded that, before suit brought, a claim was presented to the comptroller, and that he required the plaintiff to be examined as to the justice of the claim, but that he refused to be examined. Held, that the way to take issue was by a denial, and that, therefore, a demurrer to such pleaded defense was good; but, as the complaint failed to state a cause of action, the demurrer must be overruled, as the answer was good enough for a bad complaint.


Where a defense does not contain new matter, it is "insufficient in law on the face thereof," under Code Civ. Proc. 88 494, 500.

Action by Diedrich G. George against the city of New York. Demurrer to defenses overruled.

Charles Coleman Miller, for plaintiff.
George E. Blackwell, for defendant.

GAYNOR, J. This is an action for damages alleged to be done to the plaintiff's land by the pumping of it dry by the defendant by means of driven wells and pumps on its land near by.

The answer pleads the following as a first defense: “That for more than twenty years prior to the commencement of this action defendant and its predecessor, the city of Brooklyn, has maintained, operated and used the pumping station described in the paragraph of the complaint marked 5, in the manner described in the paragraphs of the complaint marked 5, 6 and 7, to-wit: In supplying water to the extent of several millions of gallons daily to the city of Brooklyn and the city of New York and its inhabitants for household, business, manufacturing and other purposes, and that such maintenance, use and operation of said wells and pumping station for the period aforesaid has been without the consent of the plaintiff or his predecessor in title, and that the maintenance, use and operation of said pumping station and wells promoted the public interest, and has been open and notorious."

It is claimed that this is a plea of a right by prescription, based on an adverse user of more than 20 years, to absorb the water from the plaintiff's land by means of the wells and pumps alleged in the complaint, to an extent that dries up the plaintiff's land and injures it. But with all our looseness of pleading I do not see how it can be allowed to pass as such a plea. On its face it is only a plea that the defendant has for more than 20 years maintained and operated the said pumps and wells in supplying several millions of gallons of water daily to its inhabitants for household, business and manufacturing purposes, without the plaintiff's consent. The defendant had the right from the beginning to maintain and use the wells and pumps for that purpose; it does not need to establish a right by prescription thereto. There is no allegation of the taking of the plaintiff's water, or any plea of a prescriptive right to do so. Proof on the trial by the defendant that it had used its pumps for more than 20 years, and pumped several millions of gallons daily, under a claim of right, would not cast the burden on the plaintiff of showing that it was done in subordination to his title, as the rule is in such cases; on the contrary, such proof would only show that the defendant had done what it had the right to do on its own land, viz., sunk wells and pumped therefrom; it would not show that the plaintiff's water was being taken.

The plea, to be good, must allege the fact of the taking of the water from plaintiff's land, and whether all of it, or a less quantity, which must be stated; and then allege the facts of adverse user on which title by prescription is based. An adverse user of 2,000,000 of gallons a day could not make a prescriptive title to any more than that. The plea must fit the user.

and 120 New York State Reporter I do not see, however, that the allegation in the plea that the user was without the plaintiff's consent would destroy the plea if it were a good one. If it were by the plaintiff's consent, it would be by his license, and a prescriptive right could not arise thereunder; and the allegation is to negative the possibility of a license. It is an unnecessary allegation, however, and unscientific, for when the facts of an adverse user are shown, it is always for the plaintiff to show by proof of a license or otherwise that the user was subordinate to his title, instead of adverse. Hammond v. Zehner, 21 N. Y. 118.

The phraseology of a number of judicial opinions is that the user, in order to make out a prescriptive right, has to be acquiesced in by the servient owner during the prescribed period. Flora v. Carbean, 38 N. Y. III; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021; Eckerson v. Crippen, 110 N. Y. 585, 18 N. E. 443, 1 L. R. A. 487. This does not mean consented to, or assented to, or suffered without objection. On the contrary, objection and protest, instead of defeating the adverse claimant, would go to show that his user was hostile or adverse, which it has to be in order to be effectual. The phraseology is misleading; but all that can be meant by it is that the servient owner acquiesced to the extent of not bringing an action within the limited period. He may have protested constantly against the user, and never acquiesced in it, but if he let the period of 20 years go by without bringing his action, that is the fatal acquiescence which is meant.

The answer pleads the following as a fourth defense: "That heretofore and prior to the commencement of this action the plaintiff caused to be presented to the comptroller of the defendant, the city of New York, the claim upon which this action is founded; that thereafter and prior to the commencement of this action, the said comptroller duly required the plaintiff presenting such claim, to be sworn before him touching the same, and to answer orally as to any facts relative to the justness thereof, but that the plaintiff wholly refused to be sworn or to answer orally any facts relative to the justness of such claim."

Section 261 of the City Charter (Laws 1901, p. 114, C. 466) provides that no action shall be commenced against the city unless it shall appear by an allegation in the complaint that 30 days have elapsed since the claim upon which it is founded was presented to the comptroller of the city for adjustment, "and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”

The complaint only alleges that more than 30 days before the commencement of the action the claim was presented to the comptroller, “but no adjustment or payment of the same has been made.” This is no allegation that the comptroller “neglected or refused.” He may have been prevented by the plaintiff refusing to appear before him and be examined on oath concerning the claim, which he has to do if the comptroller requires it (page 50, § 149) in order to enable the comptroller to make the adjustment; in which case there would be no neglect or refusal by the comptroller. The complaint being bad on this head, it does not matter if the answer thereto be bad, for it is an old and familiar rule in considering the sufficiency of an answer on demurrer, and needing no citation of authority unless as a concession to that useless drudgery which seems in these times to be passing for erudition, that a bad answer is good enough for a bad complaint.

That the comptroller neglected or refused to adjust is an issue to be tendered by the complaint. If it contained that allegation, a denial would be the only way by which it could be put in issue, and I should sustain the demurrer to this fourth defense, for the matter it pleads is not matter for a defense, i. e., "new matter," i. e., matter which cannot be proved under a denial.

The "defense” is “insufficient in law on the face thereof” (Code Civ. Proc. § 494) because it sets up no “new matter,” and a "defense" can consist of nothing else (Code Civ. Proc. $ 500). A defense can never be a plea of matter which can be proved under a denial. On the contrary, it can only consist of matter which cannot be proved under a denial, i. e., “new matter," and matter embraced in the issue raised by a denial is not new. The burden of proof is on the defendant in respect of an issue tendered by a "defense," but on the plaintiff in respect of all issues raised on the complaint, and they can be raised only by a denial or denials. If a pleaded "defense” does not create an issue which puts the burden of proof on the defendant, then it is not a “defense” at all, and should be eliminated. But in view of some late judicial utterances, however inadvertent, the subject, however plain and logical, seems to be a hopeless one. Things are now being called “defenses” which tender no new issue at all, but only embrace matter put in issue by the denial or denials of the answer.

The demurrer is overruled as to each of said defenses, as the complaint does not state a cause of action.

(42 Misc. Rep. 238.)

GREEN ISLAND ICE CO. 7. NORTON. (Supreme Court, Special Term, Albany County. December, 1903.) 1. STATE CANAL-PROPERTY IN ICE.

Ice formed in a state canal basin, constructed upon and entirely sur

rounded by state land, belongs to the state. 2. SAME-EXCLUSIVE RIGHTS.

Where the superintendent of public works, under Laws 1894, c. 338, 8 23. subd. 13, authorizing him, in his discretion, to permit persons in the vicinity of the canal to cut and haul away ice for domestic use, gives a corporation permission to cut ice for the season on a designated part of a state canal basin, the corporation has an exclusive right to cut the same, as against an adjoining owner of land or a first appropriator of

the ice. 3. SAME-INJUNCTION.

Where a licensee had obtained from the state a right to cut ice on a state canal basin, and an adjoining owner interfered with such right, and the parties bad had litigation in regard to it in a former season, and violence had resulted, requiring the intervention of the sheriff, such adjoining owner would be temporarily restrained.

Action by the Green Island Ice Company against Daniel Norton to enjoin interference with certain land. Judgment for plaintiff.

The “Mohawk Basin,” so-called, is a part of the Erie and Champlain canal system of this state. It was formerly one of the branches or sprouts of the

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