spective of the statute. This phrase was not effective to relieve the state from its duty to provide the site for the work. If it were so intended appropriate language could have been used. Our view is that neither this phrase, nor the legal obligation on the town to build the structure, if that obligation be conceded for the purpose of argument, relieved the state from its duty. The claimant had no relations with the town. The state, on the contrary, had ample opportunity to protect itself. It could have refrained from executing the contract until it had received the proper guaranties. The risk of the town's omission was on it, and not on the claimant. In addition, the state executed the contract, not only without assurances, but with full knowledge of the town's refusal, of which claimant was ignorant, and then compelled the claimant to begin the work. In Lane Brothers Co. v. State of New York, 11 State Dept. Rep. 117, the contract provided: "It is expected that the masonry abutments and superstructure necessary to carry the railroads over the canal prism together with so much of the excavation and backfilling as may be necessary therefor will be carried out by the railroad companies." The companies refused to do the work, the state failed to do it, the contractor thereby was denied the site for his operations and impeded, and Judge Haight, official referee, said: "It consequently follows that the State within a reasonable time was obligated to provide the contractor with the sites of the railroad companies, in order that it might perform its contract in excavating the prism of the canal thereunder. This the State has failed to do and, therefore, it became liable to the claimant for a breach of contract for the damage it has sustained by reason of such failure.

"Under the provisions of the contract, as I have already shown, the State expected that the railroad companies would construct the bridges over the canal,

but this the companies failed to do. It, therefore, becomes the duty of the State to either construct the bridges or let contracts therefor."

A somewhat similar proposition was involved in Schunnemunk Construction Co. v. State of New York, 116 Misc. Rep. 770. In that case the county failed to acquire the necessary rights of way before construction began, as required by statute. The contractor thus was denied the site for his work and his progress delayed. We held the state liable, saying: "The issue is whether the state has violated the contract, by interfering with and interrupting the claimant in its performance of its obligation. Such interference between individuals or corporations confers a right of action. (Mansfield v. N. Y. Cent., etc., R. Co., 102 N. Y. 205; Del Genovese v. Third Ave. R. R. Co., 13 App. Div. 412; affd., 162 N. Y. 614.)

*

*

"We are not unmindful of the statutory provisions. above referred to, but the claimant had no power or function in that connection. It was the duty of the county to procure the right of way, and of the state to satisfy itself in that respect before directing the claimant to proceed. This was a matter between the state and the county, and the state could use its own means to assure, protect and inform itself, before ordering claimant to begin work. No question of ignorance of law as an excuse is involved here."

The only remaining question is one of fact. The absence of the culvert very seriously delayed and damaged the claimant. It was not reasonably possible, or practicable, for the claimant to move its shovel around the ravine in the winter of 1915-1916. That inquiry is of little importance, anyway. The claimant was entirely justified in keeping the shovel on the east side of the ravine, in position to resume work when the culvert was completed, relying as it did, and had a right to, upon the repeated assurances of the state

that it soon would be in place. Claimant was not obliged to assume their assurances to be worthless and to expend the considerable sum and effort required to make the detour. We find, however, part of the damages for delay, for which recovery is sought, was not the result of the state's breach of the contract, but was the fault of the claimant. An award is made in the sum of $23,893.25, being the damages suffered by the claimant solely because of the state's default.

ACKERSON, P. J., concurs.

Ordered accordingly.

INDEX.

ABATEMENT.

Of legacies. See Wills.

ACCOMPLICE.

See Criminal Procedure.

ACCOUNTING.

Testamentary trustee· ·Apportionment of extraordinary stock
dividends between life tenant and remaindermen Tests to be
applied Non-impairment of corpus of trust fund by accumulation
of entire surplus from which dividends payable - Payment of stock
dividend to life tenant. Matter of John E. Roberts, 794.

ACTIONS.

When consolidation not ordered.

See City Court of New York; Wills.

ADEQUATE REMEDY AT LAW.
See Contracts.

ADVERSE POSSESSION.

Action to

Tenants in common Dower - Guardian in socage.
determine claim to real property - Widow's possession held not to
be adverse to her husband's heirs. The legal presumption is that
the possession of one of several tenants in common is that of all.
One of several tenants in common may acquire title against the
co-tenant by adverse possession, but in order to do so, the posses-
sion must be such as to constitute an exclusion or ouster of the
co-tenants evidenced by an open, notorious and adverse occupation
under a claim of right. A widow entitled to dower is during the
minority of her infant children entitled as their guardian in socage
to the possession of premises in which the children have an un-
divided interest. Where a widow originally became possessed of
real estate of which her husband died seized rightfully as dowress
and guardian in socage and not adverse to her deceased husband's
heirs at law, such occupancy will be deemed subordinate to their
lawful claims unless there was a definite, open and unquestionable
change of position. Evidence in an action to determine a claim to
real property of which the husband of plaintiff's testatrix, many
years ago, died seized, considered, and held, that there being a
failure to prove an occupancy of the premises by plaintiff's testatrix
who devised the same, under a claim of title adverse to that of her
stepson and daughters, defendants were entitled to judgment. Ken-
nedy v. Smith, 237.

See Eminent Domain.

AGENCY.

See Principal and Agent.

AGREEMENT.

To adopt week work system in place of piece work, etc.
See Contracts.

ALIMONY.

See Contempt; Husband and Wife.

ARREST.

See Provisional Remedies.

ATTACHMENT.

See Contracts.

AUTOMOBILES.

See Contracts.

BAIL.

See Criminal Procedure.

BAILMENT.

Conversion-Involuntary bailee exercising dominion over article
bailed - Stockbrokers liable for delivery to wrong person of bond
sent by mistake.— An involuntary bailee, so long as the lack of
volition continues, is not in duty bound to care for or guard the
subject of the bailment and cannot be held, in respect to custody,
for what would even be the grossest negligence in the case of a
voluntary bailment. Where, however, an involuntary bailee does
exercise any dominion over the thing so bailed, he becomes as
responsible as if he were a voluntary bailee and is absolutely liable
in conversion for delivery of the subject of the bailment to the
wrong person. Plaintiffs, a firm of stock exchange brokers, in order
to fill an order for the sale and delivery of a fully negotiable bond
of a certain railroad company to the defendants who are engaged
in the same line of business, ordered the bond from a third bond
house which by mistake sent to plaintiffs a bond of another railroad
company, which the plaintiffs also by mistake sent to the defendants
in the following manner: Said bond and a slip briefly describing
a bond of the first railroad company were enclosed in an envelope
and taken to defendants' place of business by one of the messenger
boys in the employ of plaintiffs, who dropped the envelope into a
slot above a closed window of opaque glass, where deliveries were
wont to be made and left. Immediately thereafter, a member of
defendants' firm opened the window and an unidentified boy, not
plaintiffs' messenger, stepped up and in answer to the direction to
make the statement on the slip agree with the bond, said: “All
right," took the bond and left. Upon affirming a judgment in favor
of plaintiffs for the conversion of the bond, held, that defendants
upon the delivery of the bond to them became involuntary bailees
thereof and when they undertook to re-deliver the same, they acted
as greatly at their peril as if they had been voluntary bailees.
Defendants could have protected themselves by telephoning to the
plaintiffs that the wrong bond had been delivered or they could have
sent the bond back to plaintiffs by one of their own messengers.
Where an action is tried as one for conversion a judgment in favor
of plaintiff can be sustained, if at all, only upon that theory.
Cowen v. Pressprich, 663.