posed by the legislature for the rights of the public. Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984. I cannot find that riparian rights extend beyond this. The fee of the lands under water is in the state, er, in this case, in the town. Here the defendant has used the lands under water substantially as a shipyard, differing from ordinary shipyards in that in the latter vessels are constructed, while here they are dismantled or broken up. In my opinion, this is an exclusive appropriation of the fee itself, not merely the exercise of an easement. It leaves nothing in the owner of the soil. It is not necessary that the defendant's act should interfere with navigation. It is sufficient that it is a burden imposed upon the plaintiff's land beyond that the law grants him. There are three rights here,-the right of defendant as a riparian owner, the right of the public to navigation, the right of the plaintiff as owner of the waters and lands under them. The use the defendant seeks to make of the lands under water is nowise similar to the erection of a pier or landing place, and is therefore illegal, as against the owner of the fee. There should be judgment for plaintiff for an injunction as prayed for, with six cents damages and costs. (32 Misc. Rep. 376.) CHASE v. TRAITEL MARBLE CO. (Supreme Court, Special Term, New York County. August, 1900.) LANDLORD AND TENANT-LEASE-CONTRACT FOR STEAM POWER-CONSTRUCTION-INJUNCTION. Under a lease of premises, with use of steam power for the operation of certain machines therein specified, the lessor will not be entitled to enjoin the use of power by the tenant for the operation of other machines in lieu of those enumerated in the lease, where the substituted machines consume substantially no greater quantity of power than those contracted for, nor have any different effect upon the building. Action by George Chase against the Traitel Marble Company to enjoin the use of steam power by defendant for operation of certain machines. Motion to continue injunction pendente lite denied. Hieronimus A. Herold, for the motion. Geopel & Raegener (Norbert Heinsheimer, of counsel), opposed. GIEGERICH, J. It by no means clearly appears that the plaintiff has a cause of action based upon the defendant's acts as disclosed. The continuance of the injunction would, I fear, be greatly to the prejudice of the defendant, in view of the fact that the operation of the machinery, alleged to be an invasion of plaintiff's rights, has been open and continuous for the past six months, and important contracts to do work have been made by the defendant in reliance upon the continued operation of the machinery as at present in use. Indeed, so far is the plaintiff from making out a cause of action to the extent required by the rule laid down in Warsaw Waterworks Co. v. Village of Warsaw, 4 App. Div. 509, 40 N. Y. Supp. 28, to entitle him to the relief sought, that it may be said that a good defense is established by the answering affidavits. While these concede that steam power is and 100 New York State Reporter being taken from the shaft and used for operating some machines not enumerated in the lease, they also state (which statement is not contro- verted) that certain machines so enumerated in the lease are not operated, and that the machines substituted in their place consume substantially no greater quantity of power than they would if in use. That a contract for power sufficient to propel a particular amount of machinery relates to the quantity of power, and does not restrict its use to the precise machinery specified, is established by high authority in this state. Cromwell v. Selden, 3 N. Y. 253; Mudge v. Salisbury, 110 N. Y. 413, 18 N. E. 249, and Hall v. Railway Co., 148 N. Y. 432, 42 N. E. 1056, and cases there cited. That the defendant has kept substantially within its contract rights, as thus interpreted, is not denied by the plaintiff. It ought, perhaps, to be added that no claim is made that the running of the substituted machines has any greater or different effect upon the building of the plaintiff than would the running of the machines enumerated but not operated, the complaint (Supreme Court, Special Term, Onondaga County. May, 1900.) 1. CONTRACTS OF SALE WITH BUILDING LOAN-FAILURE TO FILE-PENALTY- Laws 1897, c. 418, § 21, provides that contracts for sale of land with a building loan must be in writing, and filed with the county clerk, and that, if not filed, the interest of each party to the contract is subject to lien, notice of which shall be thereafter filed. Plaintiff agreed to sell S., one of the defendants, land, on which S. agreed to build; plaintiff to make a build- ing loan, and deed not pass till purchase price and loan were paid or secured. The contract was in writing, but was not filed. Defendant M. furnished materials for the building. Held, that plaintiff's interest in the land was subject to M.'s lien, irrespective of M.'s knowledge or ignorance 2. SAME-NOTICE OF LIEN-CONTENTS. Laws 1897, c. 418, § 9, prescribes that a lienor shall include in his notice Action by Nathan J. Packard against Barnett Sugarman and others Plaintiff seeks to foreclose a mortgage for $950 and interest upon premises of which the title and possession are held by the defendant Sereiber. The de- ble out of, plaintiff's interest as mortgagee. No claim upon or under said mechanic's lien is made against Screiber, who is conceded to have purchased the premises for value before the lien was filed, and without notice thereof. Plaintiff's mortgage was executed and recorded before McChesney's llen was filed. The claim that the latter should be paid out of the mortgagee's interest is based on section 21 of the act in relation to liens, etc. (chapter 418, Laws 1897), in reference to contracts for the sale of lands with building loans. Samuel Packard, for plaintiff. David F. Costello, for defendant Screiber. F. N. White, for defendant McChesney. HISCOCK, J. August 6, 1899, plaintiff and his brother, who were co-partners, made a contract in writing to sell to the defendant Sugarman the premises in question for $800. The contract contained the following clauses: "Second party [Sugarman] hereby agrees to build upon said lot aforesaid a house, according to the plans and specifications hereto agreed upon between these parties. * * Said first parties hereby agree to loan to said second party from time to time, in the course of the construction of said building, an amount not to exceed the sum of $1,200, which money is to be used only in the construction of said building. Said second party agrees to pay said first parties the sums so advanced by Oct. 1, 1899; and, if not paid on that day, the amount so loaned is to bear interest at the rate of six per cent. per annum. Said deed not to be delivered until the amount loaned and purchase price of lot is paid to first party, or sufficient security satisfactory to first party given in lieu thereof." This contract was never filed in the clerk's office of the county where the premises were situated, but the defendant McChesney saw it August 30th. After the execution of this contract, Sugarman entered into possession of the premises covered thereby, and commenced the erection of a house, as therein provided; and McChesney sold and delivered to him materials to be used in the construction thereof on and prior to September 12th, amounting to $277.04. It is this amount for which he seeks to enforce his lien, waiving upon the trial any claim for materials supplied after that date. Upon the date last mentioned (September 12th) further proceedings under the contract for sale were terminated by the Packards executing to Sugarman a deed of the premises in question, and taking back, in the name of the plaintiff, the mortgage involved in this action, for $950, of which $800 was purchase price, and $150 moneys advanced under the clause of the contract already quoted. Upon October 2d, Sugarman executed the conveyance of said premises already referred to, to defendant Screiber, and it was duly recorded the next day. October 6th McChesney filed his lien herein urged. His notice thereof was directed to Screiber and Sugarman, "owners and persons in interest." It recited, in substance, that he had a lien against Screiber, as "owner of the real property" therein described, for "lumber and building materials furnished by said Geo. H. McChesney to Barnett Sugarman." And, what is especially urged by plaintiff, it contained no notice of any claim against plaintiff, nor any reference in any form to him, or any claim or interest of his in said premises. Upon these principal facts, the question is raised whether, in effect, McChesney can have his mechanic's lien paid out of plaintiff's mort and 100 New York State Reporter gage interest in said premises, under section 21 of the lien law, already referred to. No good reason is called to my attention why the contract of sale between Packard and Sugarman should not be treated as a contract for the sale of land, with a building loan, within the provisions of said section. Assuming that it is to be so regarded, the interest of said plaintiff thereunder, as against the mechanic's lien, became subject to the liabilities therein prescribed by reason of the failure to file such contract in the clerk's office. It does not avoid such liability to say that the material man knew of its provisions, although not filed. The statute absolutely and unconditionally prescribes the penalty which shall follow the failure to file such a paper. It does not prescribe, for instance, that the liability shall follow, in case of nonfiling, in favor of a material man who shall deliver materials in good faith, and without notice of it. It is next urged, in behalf of the lienor, that the execution by the vendor under the contract of sale to the vendee of a deed of said premises, and the execution by the latter back to the former of the mortgage in question, all before the date contemplated in the contract, but amounted to a modification of the latter, within the terms of section 21, and that therefore such acts do not affect or impair his rights to have a lien against plaintiff. I will assume herein that this is so,that any right which McChesney had to file a lien against plaintiff's interest in said premises, upon September 12th would not be cut off by the execution of said deed and mortgage. Accepting a view in favor of the lien, upon these questions, I come now, however, to a point which, in my judgment, stands in the way of its enforcement against plaintiff. Section 21 contemplates the enforcement of a lien, under the contingencies therein prescribed, against the interest which a person has under his contract of sale. It prescribes that "the interest of each party to such contract in the real property affected thereby is subject to the lien," etc. And, again, in providing that a modification of such a contract shall not impair the rights of a person who has furnished materials, it says that such rights or interest "shall be determined by the original contract." The interest of plaintiff, under said contract, against which McChesney could have enforced his lien, was that of an owner of real estate which he had contracted to sell to another. He was undoubtedly an "owner," within the definition of that term laid down in section 2 of the lien law. The legal title to real estate does not pass, under a contract for the sale thereof, to the vendee thereunder, so as to be subject to levy and sale under execution. It must, therefore, remain in the vendor. Code, § 1253; Higgins v. McConnell, 130 N. Y. 482, 29 N. E. 978. Independent of this statutory rule, however, the definition of the word "owner" given in the statute under review is so broad as to leave no doubt that it was intended to cover thereby a person like plaintiff, holding the legal record title to real estate, although a contract for the sale thereof had been given. This being so, if McChesney desired to enforce a lien, by virtue of section 21, against plaintiff's interest in said premises, the interest against which he must have proceeded was that held by plaintiff as "owner" under the contract of sale. And, if he desired to do this, it was his duty in his notice to state plaintiff's name as the owner of real property against whose interest therein a lien was claimed. Lien Law, § 9. This he did not do, and because of such failure his notice was fatally defective, and he cannot have any lien. De Klyn v. Simpson, 34 App. Div. 436, 447, 54 N. Y. Supp. 345. The apparent theory of the defendant McChesney, by his notice and answer, was that his lien was a lien upon the interest in said premises of Sugarman and Screiber which was prior to the plaintiff's mortgage. This theory, however, became untenable, and it was admitted by him that, before notice of his lien was filed, Sugarman conveyed all of his title in the premises to Screiber for value, and without notice of, and not subject to, defendant's claim. It then became necessary that defendant's lien should be collected, if at all, out of the sum which Screiber was bound to pay upon plaintiff's mortgage, and hence the claim of a lien upon plaintiff's mortgage interest in said premises already discussed. Findings and judgment may be prepared directing a foreclosure of plaintiff's mortgage, with costs; such costs down to and including defendant McChesney's answer to be collected out of the property, and, from that point on, from said defendant; defendant Screiber to have taxable costs up to $50 against said defendant McChesney. Order accordingly. (31 Misc. Rep. 631.) MOON v. NATIONAL WALL-PLASTER CO. OF AMERICA. (Supreme Court, Special Term, Onondaga County, May, 1900.) 1. NUISANCE-DAMAGES-ABATEMENT. Where defendant built a factory, and put in defective machinery, which threw large quantities of dust on plaintiff's property, plaintiff was enti tled to recover damages for the nuisance caused thereby, though defendant remedied the defect as soon as possible. 2. SAME-EQUITY-JURISDICTION-AWARDING DAMAGES. Plaintiff, having sued in equity to abate a nuisance and to recover damages caused thereby, was entitled to recover damages in the equity suit, though the nuisance was voluntarily abated immediately after the action was commenced, and the necessity for equitable relief thereby removed, since equity, having once obtained jurisdiction, had power to determine the controversy. Suit by Albert Moon against the National Wall-Plaster Company of America to enjoin a nuisance, and to recover damages caused thereby. Judgment for plaintiff. E. E. Dean, for plaintiff. C. M. Elliott, for defendant. HISCOCK, J. Defendant constructed a factory, and put therein machinery for the purpose of calcining gypsum rock and manufacturing wall plaster. This plant was located in a not thickly-populated part of the country district, not far from Syracuse. The machinery was extensive, and more or less novel in its character. Operation with it was commenced about July 9th, and, owing to some defects therein, from time to time large quantities of dust were emitted and 66 N.Y.S.-3 |