directed judgment in favor of the defendants, with costs against the plaintiff. I do not see how this judgment can be upheld. The covenant has been violated, and this suffices to entitle the plaintiff to nominal damages, at least. I agree that the injury is very slight, in view of the right possessed by the defendant Allison to build out the porch, and that there was no case for a mandatory injunction. A judgment awarding nominal damages in favor of the plaintiff, however, was necessary in order to preserve her rights under the covenant, and enable her to prevent other possible breaches thereof in the future; such as might occur, for example, if the respondent removed the porch, and yet attempted to maintain the projecting gable. While the general rule is well established that a new trial will not be granted to a plaintiff where, upon the entire case, it appears that he is entitled to nominal damages only, it is equally well settled that this rule does not apply where an allowance of nominal damages is necessary to protect a property interest of the plaintiff. 1 Sedg. Dam. (8th Ed.) § 109; Herrick v. Stover, 5 Wend. 580; Ely v. Parsons, 55 Conn. 83, 101, 10 Atl. 499; Moore v. Railroad Co., 4 Misc. Rep. 132, 23 N. Y. Supp. 863. While, upon the evidence in this record, I should have been quite content with a disposition of the case limiting the plaintiff's recovery to a nominal sum only, it is so clear that she was entitled to that relief for the adequate protection of her property rights under the covenant that I think we are bound to grant a new trial.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur.

(54 App. Div. 83.)

WHAN et al. v. STEINGOTTER.

(Supreme Court, Appellate Division, Second Department. October 5, 1900.) BOUNDARIES-PRACTICAL LOCATION OF LOT.

Where a lot was conveyed by a deed conveying a frontage of 40 feet, and houses of 20 feet frontage were built thereon, and a house and lot described as 20 feet in width was sold and conveyed to plaintiff, who entered into possession, there was a practical location of the property conveyed, which established the boundaries of the lot, although the boundaries had not been established 20 years; and the plaintiff could not recover a strip of land 2 inches wide adjacent thereto, of which he did not have visible possession, by showing a mistake in the standard of measurements by which his lot was located.

Appeal from trial term, Kings county.

Ejectment by Sarah Whan and another against Phillip Steingotter. From a judgment in favor of the defendant, the plaintiffs appeal. Afirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

John T. Canavan, for appellants.

Robert H. Roy, for respondent.

GOODRICH, P. J. The action is in ejectment for a strip of land 2 inches wide and 100 feet in depth, lying on the northwesterly side

66 N.Y.S.-19

and 100 New York State Reporter

of Putnam avenue, between Bushwick avenue and Broadway, in the borough of Brooklyn. The block in question was a part of the old Suydam farm, upon the partition of which the block was conveyed to Abraham Suydam, in 1880. The description in this partition deed stated the length of the block to be 550 feet. The actual length, according to the legal standard of measurement, was 550 feet 5 inches. In 1887, Suydam conveyed to Brower a portion of the premises, extending from Bushwick avenue 450 feet southwesterly along Putnam avenue. In 1888 Brower conveyed to Walker premises 40 by 100 feet on the northwesterly side of Putnam avenue, beginning 130 feet southwesterly from Bushwick avenue, upon which Walker erected two houses, each 20 feet in width. In 1889 Walker conveyed to the plaintiff William Whan the northerly lot, described as beginning 130 feet southwesterly from the corner of Putnam and Bushwick avenues, and 20 feet in width; and Whan subsequently conveyed an undivided half interest to the plaintiff Sarah. In 1893, Brower, formerly the owner of the 450 feet on Putnam avenue, conveyed to the defendant an irregular plot at the corner of Bushwick and Putnam avenues, the easterly line of which ran along Putnam avenue a distance of 130 feet from the corner, and thence northwesterly 100 feet, parallel to Bushwick avenue. The northeasterly line of the plaintiffs' house as erected is in fact 130 feet 2 inches southwest of Bushwick avenue, while the defendant has title, according to the description in his deed, to 130 feet. The intermediate two-inch strip is the subject of this litigation. The court held that the plaintiffs had no cause of action, and dismissed the complaint. From the judgment entered thereon the plaintiffs appeal.

After the defendant obtained his conveyance, he commenced to erect upon the premises a brick building, using as the southwesterly boundary a line 130 feet 2 inches from the corner. Immediately upon the commencement of the work a dispute arose between the parties as to ownership of the strip, the plaintiffs claiming to own the twoinch strip north of their northerly wall over some part of which some of their clapboards and other parts of their northerly wall extended. The defendant claimed that, although his deed conveyed a lot 130 feet along Putnam avenue, he took under it 130 feet and 2 inches. If this were a controversy between the defendant's grantor and the defendant, such a contention would have weight, but the rights of the plaintiffs and the defendant must stand upon a different plane. When the plaintiff William took his deed, the house was already constructed, and was 20 feet wide. There had been a practical loca tion of the 20 feet which the deed purported to convey. The plaintiffs, having accepted and being possessed of a house and lot 20 feet in width, suffer no injustice by the decision of the trial term. It is true that the mere existence of a boundary line must continue 20 years before such existence alone will make out a practical location in law, and that a mere acquiescence by the owner of land in the possession of another for less than 20 years under claim of title does not deprive the owner of his land, or estop him from asserting his title. Hinkley v. Crouse, 125 N. Y. 730, 26 N. E. 452, and cases cited.

But that does not affect the case at bar. The possession of the plaintiffs was of the house and lot as erected, and there is nothing in such possession which covers the two-inch strip in question, of which there was no visible occupation. It is, perhaps, wise to add, as matter of explanation, that the difficulty arises from the fact stated on the trial by the plaintiffs' counsel, and not disputed by the defendant's counsel, that there was some difference between the standard of measurement used at the time of the partition deed to Suydam and that in use at the time of the plaintiffs' and defendant's deeds, the variation being about 1 inch in 100 feet, in excess of the present standard. It was also stated that buildings have been erected on the entire block, from Bushwick avenue to Broadway. All of these houses have permanent locations, and each owner has the number of lineal feet required in his deed. A judgment for the plaintiffs might give rise to litigation as to the titles of these various lots, and we should hesitate to come to any conclusion having that effect, unless justice requires us to do so. We can discover no such necessity. Certainly the plaintiffs have their 20 feet, and suffer no injustice. The judg ment must be affirmed.

Judgment affirmed, with costs. All concur.

(54 App. Div. 72.)

GALE v. NEW YORK HAY CO.

(Supreme Court, Appellate Division, Second Department. October 5, 1900.) 1. REFEREES-SUFFICIENCY OF EVIDENCE.

Where there is a conflict in the evidence before a referee, but his findings are supported thereby, they will not be disturbed.

2 PRINCIPAL AND AGENT ACCOUNTS.

The retention by a principal for a number of years of the accounts rendered by an agent, without objection thereto, when the accounts contained statements of facts peculiarly within the knowledge of the agent, and not known by principal until shortly before action brought, does not constitute an acquiescence which will prevent the principal maintaining an action for a difference in his favor.

Appeal from judgment on report of referee.

Action by Clifford J. Gale against the New York Hay Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Hugo Hirsh, for appellant.

John C. Judge, for respondent.

HIRSCHBERG, J. This case was decided correctly by the learned referee. The plaintiff, a resident of Ohio, had shipped hay to the defendant, to be sold on commission, and the action was to recover a balance arising from the claim that the sums alleged in defendant's accounts as the selling price were misstated. The transactions cov

ered a period of years. It was undisputed that the defendant, in the various statements or accounts of sales which it rendered to the

and 100 New York State Reporter

plaintiff from time to time, set forth a figure as the price at which the hay was sold by it, which did not represent the actual selling price, but that from such price a deduction was made for storage, demurrage, and other like charges, not disclosed, and the balance only appeared in the statements as the selling price. On the part of the plaintiff it was contended that the hay had been shipped pursuant to an understanding that one dollar per ton only should be charged by the defendant, and that no deduction should be made excepting for freight. On behalf of the defendant, the deductions complained of were justified by the assertion of a custom of the trade. On both questions the case presented a conflict of testimony, but the conclusions reached by the referee are adequately supported, and no ruling warrants interference with the result.

The defendant insists, however, that the many accounts sales rendered to plaintiff, and retained by him for years without objection, became an account stated, in which the plaintiff must be deemed to have acquiesced. In support of this contention, numerous cases are cited, the latest being that of Stern v. Ladew, 47 App. Div. 331, 62 N. Y. Supp. 267, decided by this court in January, 1900. Most, if not all, the cases, like the one named, are controversies between vendor and vendee, and they are based upon the general principle that, if an account has been kept so long that the party receiving it has had ample opportunity to examine it and to object to it if it is wrong, his silence will be regarded as an acquiescence in its accuracy. The principle can have no application to dealings between principal and agent, where the agent misstates an account in a respect peculiarly within his own knowledge, and which misstatement cannot be discovered by an inspection of the account or by any other means possessed by the principal. The plaintiff never knew until shortly before the action that the defendant had deducted the charges for storage, etc., from the price at which the hay was sold, and therefore could not be deemed to have acquiesced in what he did not know, and could not have discovered save by chance. The judgment should be affirmed. Judgment affirmed, with costs. All concur.

(54 App. Div. 74.)

BENNETT v. EASTCHESTER GASLIGHT CO.

(Supreme Court, Appellate Division, Second Department. October 5, 1900.) 1. GAS-DUTY TO SUPPLY-PAYMENT OF ARREARS-PENALTY-ACTION.

Transportation Corporation Law, c. 566, § 65, provides that, if a gaslight company shall refuse to supply an applicant with gas for the space of 10 days after an application therefor, such corporation shall forfeit to the applicant $10, and $5 for every day thereafter during which such neglect shall continue, notwithstanding there may be compensation in arrears for gas furnished to a former occupant. In an action for the penalty, plaintiff testified that he made application for gas at his office, but defendant demanded as a condition that plaintiff deposit $5, and pay a disputed bill of a prior occupant; that plaintiff tendered the $5, but refused to pay the bill. Defendant's witnesses testified that nothing was said and no demand made concerning the payment of the bill. Held sufficient to sustain a verdict that payment of the disputed bill was exacted by defendant.

2. SAME-APPLICATION-SUFFICIENCY.

Where defendant had previously supplied gas to the office occupied by plaintiff, and knew the nature of service required, an application by plaintiff requiring defendant to furnish him "with gas for lighting said office as heretofore supplied, by a return of the meter to said office as the same was placed on the 1st of the present month," was sufficient, under Transportation Corporation Law, c. 566, § 65, subjecting gas companies to a penalty for refusal to supply gas after application therefor.

8. SAME FINDING OF JURY-APPEAL AND ERROR.

Where, in an action against defendant company for refusal to supply plaintiff with gas, defendant insisted on having submitted to the jury a question which was improper, it could not subsequently complain of the finding of the jury thereon.

Appeal from trial term, Westchester county.

Action by Frank A. Bennett against Eastchester Gaslight Company to recover the statutory penalty for failure to supply plaintiff's office with gas. From a judgment of the supreme court in favor of plaintiff and an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

John M. Bowers (W. H. Van Benschotem, on the brief), for appellant.

Roger M. Sherman, for respondent.

HIRSCHBERG, J. The action is brought against a gas company to recover the penalty imposed by section 65 of the transportation corporation law (chapter 566, Laws 1890) for a failure to supply the plaintiff with gas at his office, room No. 2, in the Post Office Building, at Mt. Vernon, N. Y. The plaintiff's occupancy of the office began about January 31, 1897. On the 5th day of February he attempted to light the gas, and discovered that there was no flow. It appeared on the trial that the meter had been removed a few days previously by the defendant at the request of the prior occupant of the office. On the 6th day of February the plaintiff called at the office of the defendant, and applied to the manager to have the meter restored to the office, and to have gas supplied for his use. Subsequently, on the same day, he served on the defendant a written application to the same effect. There is no dispute that the defendant failed and refused to restore the meter and to supply the gas, but there is a serious dispute as to the reasons assigned for such failure and refusal at the time the plaintiff made his application. It appears that the defendant had a disputed claim against the plaintiff for a small sum for gas alleged to have been supplied to the plaintiff at his residence some years before. The plaintiff testified that, when he asked for gas to be furnished at his office, the manager demanded as precedent conditions that he deposit the sum of $5, and also that he pay this disputed bill. He further testified that he then tendered the $5, but refused to pay the bill. The defendant's witnesses testified, on the other hand, that the only condition named was the deposit of $5, which the plaintiff neither tendered nor offered to pay, and that no demand was made for payment of the disputed bill. The learned trial justice submitted to the jury the issue of fact thus raised, in