and 100 New York State Reporter thrown upon plaintiff's neighboring premises, causing him damages which were assessed upon the trial at $83.96. .This condition and trouble continued down to the time when this action was commenced. Two days after its commencement (August 19, 1899), defendant shut down its plant for a period of about six weeks, and endeavored to so remedy the defects in its machinery as to prevent the discharge of the obnoxious dust. For about ten days after it opened up the second time there was more or less difficulty of the same kind, but within that time defendant succeeded in so improving its machinery and the operation thereof as to substantially cure the difficulty; and from that time down to the trial of this action, in February, 1900, there had been practically no more trouble or ground for complaint, and there is no reason to apprehend that the trouble will recur. While plaintiff's complaint is broader than that, the only fault found with defendant upon the trial was over the emission of this dust. The first question is whether the acts complained of as they occurred from the time the defendant commenced operations, in July, down to August 19th, two days after this suit was started, constituted a nuisance. I think they did. Defendant's contention that they did not is based mainly, if not entirely, upon the proposition that it used due diligence and skill in setting up its machinery and in endeavoring to obviate the trouble, and that the latter was of such a temporary character as not to constitute a nuisance. The case does not, however, seem to me to come within the principles advanced in Booth v. Railroad Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, cited and especially relied upon by defendant to sustain its position. In the case cited, the trouble complained of arose from a jarring caused by the use of blasting powder. No matter or material of any kind was thrown upon plaintiff's premises. It was assumed that the results complained of in that case, as well as those assumed in other cases stated in the opinion not to constitute a nuisance, were necessarily incidental to the reasonable performance of acts which in turn were well within the reasonable use of the property of the person performing them. If he was to be permitted to enjoy his property, he must be permitted to perform the acts complained of. And, if he was to be permitted to perform such acts, the obnoxious results could not be obviated. It was plainly intimated in the Booth Case that, if there had been any practical way in which to avoid the damages which resulted to plaintiff, it would have been the duty of the defendant to do so. In the case at bar the difficulty had continued for about six weeks, and at the time of the commencement of the action it was reasonable to assume that it would continue. It was entirely practical to remedy it. This has been demonstrated by subsequent events. Yet, apparently, it was necessary for plaintiff to institute this action in order to compel defendant to make the necessary changes to cure the trouble. The case, therefore, seems to be one of a defective machine or machinery improperly used to the damage of another, and a resulting nuisance, which is not avoided even by the use of due diligence upon the part of the owner to obviate the trouble. Yocum v. Hotel St. George Co., 18 Abb. N. C. 340; Pach v. Geoffroy, 67 Hun, 401, 22 N. Y. Supp. 275; Campbell v. Seaman, 63 N. Y. 568; McKeon V. See, 51 N. Y. 300; Bohan v. Gaslight Co., 122 N. Y. 18, 25 N. E. 246. The nuisance having been abated at the time of the trial, there is no occasion for any judgment permanently restraining its commission. Leonard v. Hotel Majestic Co., 17 Misc. Rep. 229, 40 N. Y. Supp. 1044. This being so, it is urged that the court has no power to award damages for injuries sustained while the nuisance existed, and should dismiss the action; and there is cited in support of that contention the case of Rosenheimer v. Gaslight Co., 39 App. Div. 482, 57 N. Y. Supp. 330. In that case, however, the court simply held hypothetically that if the facts had not, in the first place, warranted an appeal by plaintiff for an injunction, they would not have warranted a court of equity in assuming jurisdiction at all; that it would not have assumed jurisdiction simply for the purpose of awarding pecuniary damages, and in the absence of a proper case for equitable relief. This case is different from that. If I am correct in the views above expressed, plaintiff at the time this action was commenced had a right to appeal to this court to restrain a nuisance, and to ask damages for injuries already sustained. Since that commencement, and before the trial, defendant has voluntarily abated the nuisance, and removed any necessity for equitable relief. Plaintiff's damages, sustained before the nuisance was so abated, however, have not been paid; and there is no reason why this court should not award them to him in this case, rather than remit the parties to another litigation. To do the latter would not be in accordance with the well-settled and liberally applied principle that a court of equity, having once obtained jurisdiction of a controversy, will endeavor to settle the rights of the parties therein so far as practicable, giving such judgment as may be appropriate. Judgment is therefore ordered for the plaintiff, with costs. Judgment for plaintiff, with costs. (31 Misc. Rep. 634.) KENYON v. WALSH et al. (Supreme Court, Special Term, Onondaga County. May, 1900.) MECHANIC'S LIEN-CONTRACTOR'S ORDER-FAILURE TO FILE-PRIORITY. An owner of real property owed a contractor $786 for building a house. On June 2d he accepted, and after August 30th paid, an order for $375 drawn by the contractor, and given third parties, for material used in the house. This order was never filed with the county clerk. On August 30th plaintiff, who furnished lumber for the house, filed a mechanic's lien for $675 due him from the contractor, and thereafter sued to foreclose the lien. Held, under Laws 1897, c. 418, § 15, providing that no order for the payment of money due for material used in the improvement of real property, drawn by a contractor on the owner, shall be valid until a copy is filed with the clerk of the county where the property is situated, that the owner was not entitled to a credit for the $375 on the amount due the contractor, before payment of the plaintiff's lien. Action by George C. Kenyon against John F. Walsh and another to foreclose a mechanic's lien. Judgment for plaintiff. W. G. Tracey, for plaintiff. G. W. Driscoll, for defendant Walsh. and 100 New York State Reporter HISCOCK, J. This is an action to foreclose a mechanic's lien. Walsh was the owner of a lot, and made a contract with Lawler to put a building thereon. The latter defaulted on his contract, and the former completed it. It was conceded upon the trial, or found by the court, that the owner was entitled to credit against the amount unpaid on the contract: For work and materials in finishing it up. He had paid upon the contract, outside of the order hereinafter mentioned Total ... The original contract price was. Leaving a balance of... $ 256 76 42 00 1,375 00 $1,673 76 2,460 00 $ 786 24 -Over which the dispute arises between plaintiff and the owner. Plaintiff furnished to the contractor, for use in building the house, between May 10, 1899, and August 30, 1899, lumber, etc., of the value of $875.71, upon which he has been paid the sum of $200. Upon the last date he filed his lien for the unpaid balance which he is now seeking to foreclose and have paid out of the aforesaid balance of $786.24. The contractor made a contract with Keiffer Bros., to furnish him with hardware to be, and which actually was, used in building said building. To procure the same, he gave them an order for $375 on the defendant owner, who on or about June 2d, accepted, and after August 30th paid, the same. Plaintiff never knew of this order until the date upon which he filed his lien. This order was never filed in the county clerk's office, and the question is whether the owner can have credit for the amounts paid by him thereon against the aforesaid balance before plaintiff's lien is paid. I do not see how he can. Section 15, c. 418, Laws 1897 (Lien Law), provides: "No assignment of a contract for the performance of labor or the furnishing of materials for the improvement of real property, or of the money, or any part thereof due or to become due therefor, nor any order drawn by a contractor or subcontractor upon the owner of such real property for the payment of such money shall be valid, until the contract or a statement containing the substance thereof and such assignment or a copy of each or a copy of such order, be filed in the office of the county clerk of the county wherein the real property improved or to be improved is situated, and such contract, assignment or order shall have effect and be enforceable from the time of such filing. Such clerk shall enter the facts relating to such assignment or order in the 'lien docket,' or in another book provided by him for such purpose." No case has been cited to my attention by the counsel upon either side construing this section. Its language, however, is so broad and plain as not to appear to need much interpretation. By its terms it is applicable to and covers an order such as that involved in this That being so, the results which flow from a failure to file the order are fixed and definite. It is not valid against the plaintiff's lien. case. Judgment, therefore, is ordered for the foreclosure of his lien, and for the payment of his claim, with interest, out of the unpaid balance above stated. He is also allowed his taxable costs, in addition to taxable disbursements, to the amount of $50. Ordered accordingly. (31 Misc. Rep. 619.) MONOHAN v. NEW YORK CENT. & H. R. R. CO. THOMAN v. SAME. (Supreme Court, Special Term, Onondaga County. May, 1900.) 1. RAILROAD ON STREET-LICENSE FROM CITY-ABUTTING OWNER-POSSESSION -WHEN ADVERSE. Defendant and its predecessors in interest for a long time had occupied with tracks the city street on which plaintiff's lot was situated, plaintiff owning the fee to the middle of the street. No compensation was ever made to plaintiff for the use of the street, nor was the right to such use ever acquired from plaintiff. Defendant's entry on the street was under a license from the city, and there was no evidence that any claim was ever made of any rights in the street, except under such license. Held, that such occupation was not adverse to the plaintiff. 2. SAME. Possession of the street having been under the license, and not adverse to plaintiff in its inception, in absence of proof there was no presumption, after 20 years, that the character of the possession was changed. Actions by Bridget Monohan and by Rosa Thoman against the New York Central & Hudson River Railroad Company. Motion for judgment after special verdict. Judgment for plaintiffs. E. C. Wright, for plaintiffs. L. L. Waters, for defendant. HISCOCK, J. These actions are similar in their nature, and in the evidence submitted therein. In each case plaintiff is the owner in fee of a lot upon Canal street, in Syracuse, extending to the center of the street. The defendant, or its predecessors, with a main and switch track, is, and for a long time has been, occupying part of that half of the street to which plaintiff holds the title. It has never made any compensation for or acquired, as against plaintiff (unless by adverse possession, hereinafter discussed), the right to such use. These actions are brought to restrain defendant from using the street, and to recover damages, etc. The actions are similar to others that have heretofore been brought by owners of property upon the same street against defendant or its predecessors in interest for similar relief. Upon the trial the amount of damages and compensation was fixed to which each plaintiff would be entitled if allowed to recover at all, and all other questions were disposed of in accordance with the rule established in preceding cases, save one which is now here, and will now be discussed. Upon the trial defendant amended its answer in each case by setting up that it and its predecessors had acquired against plaintiffs a title by adverse possession to that portion of the street occupied by it. The main track operated by the defendant has been laid and operated where it is for over 20 years. There was some dispute as to whether the switch track was laid more than 20 years ago, or only about 14 years ago. Upon this question, I am of the opinion that the latter date is more apt to be the correct one. It is admitted by the pleadings and otherwise that the main track was laid in 1871 by the Syracuse & Chenango Valley Railroad, under a resolution and license and 100 New York State Reporter adopted and granted by the common council of Syracuse, and that de fendant, by various devolutions of interests, is the successor to and in place of said railroad company. It does not appear under just what circumstances the switch track or siding was laid, but, under the view adopted as to the date when that was first laid, this is not very material upon the question now being discussed. It is expressly admitted by defendant that its predecessor "did construct its road as allowed by said license." There is no evidence upon which to find that defendant or its predecessors ever made any claim to the street occupied by it, or to the right to be therein, except under and in accordance with the license granted to it by the city of Syracuse. There is no evidence of any acts by defendant or its predecessors amounting to a claim of title and possession adverse to plaintiffs, unless the same is to be presumed from mere occupation. In my opinion, the presumptions and inferences to be drawn from the facts in these cases are against defendant's contention that it has established a right of way over plaintiffs' lands by adverse possession. The only claim of a right to be and operate tracks in this street has been based upon and under the aforesaid license. That did not purport to, as it could not legally, give any rights against plaintiffs or their grantors. Neither defendant nor its predecessors have ever made any claim, as against plaintiffs, of title thereunder or otherwise, except by mere occupation. It is one of the essentials to the establishment of a title by adverse possession that the person holding possession should do so in open hostility to the rights of the true owner. Heller v. Cohen, 154 N. Y. 299, 311, 48 N. E. 527. This certainly involves a knowledge or belief by the party holding possession that some one else may have a title to the property, and an intent upon the part of the former to assert a possession and rights in hostility thereto. When defendant's predecessor went into possession of this street, it treated with the city of Syracuse, as the only one having an interest in or control over this public street. It is scarcely to be presumed (as a matter of law, at least) that it intended to commit a trespass. It may have been ignorant of plaintiffs' title to the center of the street, or may have assumed that the city had such control over its streets as to have power to grant a license to do what it did do. At least I think it is a fair inference and presumption to hold against it that, having obtained this license, it went into possession under it, and it alone; that it laid its tracks in the streets upon the theory and claim that the resolution fully authorized it so to do; that it did not intend to force itself into and take possession of the street in hostility to the rights of any one; that its claim and possession in the street are to be regarded as under and co-extensive with the license and not in hostility to, but subordinate to, rights not covered thereby. As a general rule, to establish title by adverse possession it must be shown that the person holding possession did so in open hostility to the rights of the true owner. The presumption is that the possession is in subordination to the actual title. Mere undisturbed possession for 20 years is not sufficient. Heller v. Cohen, 154 N. Y. 299, 311, 48 N. E. 527; Doherty v. Matsell, 119 N. Y. 646, 23 N. F94. To constitute a possession adverse to the true owner, there be a claim of |