and 100 New York State Reporter for, or as part of a public street, avenue, square or place forever, in like manner as the other public streets, avenues, squares and places in the said city are, and of right ought to be." Referring to lands taken under the above act, it was held in Drake v. Railroad Co., 7 Barb. 509: "The owners of property bounded upon streets in a city have rights in such streets, and an interest in the maintenance of them in their integrity; but such right and interest consist merely in the use, benefit, and enjoyment of them as public streets or highways for the legitimate uses and purposes of streets. They have no private or exclusive right to or property in the use or enjoyment of them. All other citizens have an equal right, with such owners, to the use of the public streets as such. The corporation of the city are the owners of the legal title to the soil of the streets." * * The commissioners, under the authority of the act of 1867, acquired title to this tract of land for the purposes of a park and drive, and not for the purpose of affording "the adjoining and neighboring property owners" any exclusive or greater dominion than that vested in the public. The power to erect the proposed monument is conferred upon defendants by section 1, c. 522, Laws 1893, which reads: "The mayor, aldermen and commonalty of the city of New York may erect at such place as the department of parks in the city of New York shall designate for that purpose, a suitable memorial arch or monument." It thus appears from the acts referred to that by the act of 1867 the department of parks were to construct and lay out a public park and drive. The mayor, aldermen, and commonalty of the city of New York were authorized by the act of 1893 to erect a memorial arch or monument in a place to be designated by the department of parks. In December, 1899, after correspondence with the officials of the park department, the commissioners in charge of the erection of this monument selected what they considered to be the most desirable site (the place in question). Defendants submit in their answer a report made by Mr. John De Wolf, landscape architect of the department of parks, to the president of the board of park commissioners, dated December 11, 1899, the concluding portion of which is as follows: "The monument will not obstruct the view as much as the trees, and no one has yet objected to their presence. It will add a more beautiful foreground to the view, and I feel that further study of the plans in contemplation will please all sincere and disinterested objectors, and secure their approval." The erection of such structures as the one proposed, and similar works of art, in the public squares, parks, and places in the villages, towns, and cities of the world, is a matter of general knowledge. We have in the city, in our parks, public squares and places, buildings, structures, and monuments, a few of which may be enumerated: The Grant monument in Riverside Park; the statue of Lafayette in Union Square; the Farragut monument in Madison Square; the Worth monument, nearly opposite the statue of Columbus, 59th street and 8th avenue; the Washington arch, the Washington equestrian statue in Union Square; the Museum of Natural History, Manhattan Square; the Metropolitan Museum of Art, in Central Park, facing 5th avenue; and several others. I have carefully examined the voluminous record submitted, but fail to find any contract or agreement to sustain plaintiff's contention. "An easement can be created only by a grant, express or implied, or by prescription, from which a grant is presumed." Jones, Easem. § 80. Again, at section 583, this distinguished writer says: "No action can be maintained for obstructing a view, except upon an express covenant giving a right to the view." Freedman, J., in Greene v. Railroad Co., 12 Abb. N. C. 137, held that: "He is bound to show an easement in the park or square, either by express grant or by dedication. In either case the burden of proof is upon him. He showed no express grant. Now, before the law will, in the absence of an express grant, protect a mere right to a prospect or air over land separated from the plaintiff's premises by an intervening street, which is all the plaintiff's claim as to the park or square amounts to, it must appear affirmatively that the prospect and the air were within the contemplation of the original parties as objects of the dedication." It may be that the residents of this immediate neighborhood are apprehensive that crowds of persons would be attracted to the spot, and their desired exclusiveness and privacy might be interfered with. Possibly they may entertain the opinion that the value of their property would be depreciated. But surely it cannot be claimed that their fears or apprehensions upon purely selfish grounds would be considered by at court, to the extent of prohibiting the erection in a public park of this beautifully designed arch, commemorative of patriotism, valor, and sacrifice. Motion to continue injunction pendente lite denied. Motion denied. (Supreme Court, Special Term, New York County. June, 1900.) 1. INSANE PERSONS - COMMITTEE FOR LUNATIC-RESIGNATION OF COMMITTEE. Code Civ. Proc. § 2342, provides that on the intermediate or other than annual account of the committee of an insane person notice of the application for such accounting shall be given in the manner in which and to the person to whom notice of application for the appointment of a committee of the person or property of an alleged lunatic shall be given by title 6, c. 17. Section 2323a provides that notice of such a petition shall be personally given to such person, and also to the husband and wife, if any, or, if none, to the next of kin, and to the officer in charge of the institution. Section 2325 requires that the court must, unless sufficient reasons for dispensing are set forth in the petition, require notice of the presentation of the petition to be given to one or more relatives of the person alleged to be incompetent. Held, that where a committee made application to be allowed to resign, and for the discharge of the committee, and for the release of its sureties on settlement of the account filed with the petition, and no notice was served upon the incompetent, or the officer of the institution in which she was confined, the court had no jurisdiction. 2. SAME-SPECIAL GUARDIAN. Code Civ. Proc. § 2342, provides that on an intermediate accounting for a lunatic the court shall have power, and it shall be its duty, to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceedings. Held, that where the committee for a lunatic applied to be allowed to resign, and for the release of its sureties, on the judicial settlement of the account filed with the petition, but no special guardian was appointed, the court was without jurisdiction. 3. SAME. and 100 New York State Reporter A committee for a lunatic made application to be allowed to resign, for its discharge, and the release of its sureties on settlement of an account, but the proceedings were defective in that no notice was served on the incompetent, or the person in charge of the institution where she was confined, and the proceedings were suspended. The attorney in the proceeding then instituted amendatory proceedings. Before motion in the amendatory proceedings was returnable the resigning and original petitioning committeeman obtained through another attorney an order directing the first attorney to show cause why the proceedings begun by him should not be discontinued. The original attorney obtained an order to the resigning committeeman to show cause why the former order to show cause obtained by the new attorney should not be vacated and set aside. The proceedings instituted by the second attorney were entirely regular, but these amendatory proceedings of the first attorney were not. It was alleged by the resigning committeeman, and not denied, that the first attorney had been fully paid for his services. Held, that the original attorney should be stayed from prosecuting either the original or amendatory proceedings, but that, being attorney for two of the committee other than the resigning committeeman, he might appear in their behalf in the proceedings. Application by the committee of Sarah E. McCusker, an incompetent, for an accounting and discharge. Rights of the parties determined, and ordered accordingly. Francis C. Devlin, for committee. FITZGERALD, J. There are presented to the court in this proceeding for decision four applications on opposing papers, all arising from the original application of one, the committee for a lunatic, to be allowed to resign, for the discharge of the committee, and for the release of their sureties upon the judicial settlement of the account filed with said petition. In that original proceeding, instituted by an attorney upon the written retainer of all of the committee, an order of reference was made to take and state the account of the committee, in which order the appearance of the incompetent by an attorney was recited. The matter coming on for hearing before the referee, it was discovered and certified by him that the court had no jurisdiction to make the order of reference, as the incompetent and the officer of the institution in which she is confined had not been served with notice of the application of the accounting, as required by section 2342 of the Code, read in connection with sections 2323a and 2325 thereof, and because no special guardian for the protec tion of the rights and interests of the incompetent in the proceeding had been appointed by the court, in accordance with section 2342. Accordingly, the proceedings before the referee were suspended. If there were any doubt in the minds of the parties that the opinion of the referee was correct, and his action proper, it would be settled by the language of the court of appeals in Re Blewitt, 131 N. Y. 541, 30 N. E. 587, in which the court says: "The cases must be very rare in which a notice may not be served on the alleged lunatic, and it seems to us the better practice would be to require service of notice upon the party (if within the jurisdiction) in all cases, in addition to notice to relatives and others, as required by section 2325 of the Code." And by the mandatory language of section 2342 of the Code making it the duty of the court to appoint a special guardian. The correctness of this view seems to have been acquiesced in by all parties, and with this conceded rule of practice we may start. The attorney who brought the original proceeding then applied to the court for an order appointing a special guardian of the incompetent, and an order of reference to take and state the committee's account; his motion being based upon a notice of the filing and presentation to the court of the committee's account, of the petition and resignation of the original committeeman, upon the affidavit of the attorney of the invalidity of the former proceeding, and upon proof of service of notice of the application, and of the papers on which it is founded, upon the incompetent, the officer in charge of the asylum, and the next of kin. Then, before the said motion was returnable, the resigning and original petitioning committee obtained through another attorney an order directed to the first attorney to show cause why the proceedings begun by him should not be discontinued, and why he should not be restrained from proceeding further, and staying all actions by him. The said order was granted on the affidavits of the said committeeman, reciting the former proceedings, and the invalidity thereof, the manner in which the attorney was retained by the committeeman, the delay and error of the said original attorney, his payment in full for services rendered by him; that the amended proceeding brought by the original attorney for the appointment of a special guardian and referee was without the said committeeman's knowledge, consent, or authority; that another attorney had been retained by him, and had brought a new proceeding, in strict accordance with the requirements of the statute, and upon due legal notice to all interested parties, for an order allowing the committee to make and state the account, for the judicial settlement of the same, and, upon said settlement, for an order allowing the petitioning committeeman to resign and release the sureties, and for the appointment of a special guardian for the incompetent. An examination of the papers upon which the new proceeding was brought by the new attorney shows that every requirement of the statute as to form of application and notice to parties has been strictly complied with. It is made upon a new resignation of the committeeman, and upon his new petition reciting his appointment and qualification, all of the facts as to the incompetent and her next of kin necessary to bring them within the jurisdiction of the court, a disagreement among the members of the committee to the detriment of the trust fund, and the institution and irregularity of the former proceedings. Then the original attorney obtained an order directed to the said resigning and petitioning committeeman to show cause why the former order to show cause and stay of proceedings obtained for the said committeeman by his new attorney should not be vacated and set aside. The said order was granted on the affidavit of the original attorney reciting the facts already referred to as to the institution and irregu larity of the former proceeding, the amended proceeding brought by him, the authorization to him by two of the committee to continue the proceedings. All of these applications, based upon notice of motion and 100 New York State Reporter and order to show cause as aforesaid, were made returnable at the one time, and are now before the court for decision. The complicated situation is evidently due to an unfortunate disagreement among the members of the committee, encouraged by that litigious spirit of their attorneys which is indicated by their frequent and unnecessary applications. Under such circumstances the paramount duty of the court while deciding the petty controversies between the parties and the attorneys is to see that the rights and interests of the incompetent do not suffer. In deciding all of these applications it is only necessary for the court to consider and determine the regularity and priority in law of the two new proceedings,-the one brought by the original attorney and the one brought by the new attorney of the resigning and petitioning committeeman. All of the questions raised upon the other applications are subordinate to and dependent upon this. A careful reading of all the papers, including the lengthy affidavits finally submitted, renders it evident that the application made by Mr. Stetzner by notice of motion, dated April 9, 1900, and returnable April 19, 1900, and upon petition of the resigning committeeman, verified April 9th, is the one upon which the court must proceed. All of the proceedings, including the accounting, arise from the resignation of said committeeman, and were instituted by his petition. The new application by his new attorney is expressly authorized by him; whereas the amended proceeding by the original attorney is without his knowledge, consent, and authority, and against his wishes. If the court would litigate the controversy between attorney and client, and hold the committeeman to his original retainer, it must be remembered that in this case the allegation by the committeeman that the attorney has been fully paid for his services has not been denied by the latter, and the committeeman would then have the undoubted right, which he evidently exercised in this case, of providing against the mistakes and delays which had occurred, by the retention of a new attorney of whose ability and integrity he had no question, and by the institution of new and proper proceedings. Again, the new application by the new attorney conforms strictly with the requireme ts of section 2342 that notice of application for accounting be given in the manner in which, and to the persons to whom, notice is required to be given by sections 2323a and 2325; whereas the amended proceeding does not strictly comply with this requirement, being an application for the appointment of a special guardian and referee to correct the former proceeding, of which the incompetent had no notice, and was not subject to the jurisdiction of the court therein. The new application by the new attorney for the resigning committeeman is made upon the required notice to all the parties specified in the Code; whereas the amended proceeding by the original attorney, though based upon the petition of one of the committeemen, is founded upon no notice to the others; and, though the appearance of the next of kin by attorney is admitted and recited, the papers show no proof of service of notice of the application upon said attorney. While such notice and proof may not have been strictly required by the Code, yet proper and regular practice invariably requires it. Again, the proceedings by the original at |