Supreme Court, December, 1919. [Vol. 109. WHITMYER, J. The action is for specific performance. Defendant is a municipal corporation, a village, in the town of Massena, St. Lawrence county, N. Y. On June 5, 1918, plaintiff signed a writing by which he agreed to sell about two acres of his wife's lands, situate in the town of Norfolk, in said county, and a right of way thereto from the highway, to defendant, for use as a public dumping ground. The purchase price was to be the sum of $500 and was to be paid at the time of the delivery, which was not fixed, of a warranty deed thereof, free from liens. Defendant did not sign. The village attorney prepared the writing and the village president brought it to plaintiff for his signature. After he signed, the president took it and delivered it to the village clerk at the next regular meeting of the board of trustees of the village and it has been in the possession of the clerk ever since. The morning after plaintiff signed, the village president directed the licensed truckmen of the village to carry their refuse to and to dump same upon the land and he showed one or more of them where to dump. They did so and they continued to do so for about four weeks and during that time dumped about 200 loads. Within a few days after they commenced, an adjoining owner complained to the village board. As a consequence, the trustees refused to take the land and one of them attempted to effect a settlement, but plaintiff insisted upon performance and tendered a deed, signed by his wife and by himself. He then commenced this action. The Village Law, section 89, subdivision 23, provides that the board of trustees of a village “may, whenever in its judgment the interests of the village require it, purchase or acquire by condemnation proceedings lands for the establishment of a public dump or dumping ground in any such village, and may prohibit the use of any other lands within the village for Misc.] Court of Claims, December, 1919. such purpose. 99 The section defines and at the same time limits the powers of a village board. It authorizes only the purchase of lands" in the village" for the establishment of a public dump and the power to purchase outside of the village for that purpose may not be implied. Riley v. Rochester, 9 N. Y. 64; Deyo v. Newburgh, 138 App. Div. 465; 3 Dillon Mun. Corp. (5th ed.) § 980; 28 Cyc. 604. Being prohibited from purchasing and, therefore, from contracting to purchase land outside of the village for the purpose stated, specific performance may not be enforced. Judgment accordingly. SYLVESTER B. TRIPP, Claimant, v. STATE OF NEW YORK. (State of New York, Court of Claims, December, 1919.) Claims against the state for improper deposit of spoil on lands deeds - claim dismissed. A grant and conveyance to the state and its contractors of the right to enter upon claimant's lands and deposit thereon material excavated from the Hudson river, by which grant claimant released and discharged the grantees of and from any and all liability and damage and claims therefor, or for compensation growing directly or indirectly out of the use or occupancy of said lands for the purposes for which they were conveyed, or out of the deposit thereon of spoil or materials excavated in the course of the construction of the Barge canal terminal, was made upon condition that the top surface of the spoil deposited should not extend above the natural elevation of the ground contiguous with the line of the deposited material and that the spoil, when deposited, should be leveled off and trimmed to substantially even and continuous planes. Held, that the grantees were not required to so fill and grade claimant's land as that when completed there would be a natural slope from the highway to the river. Court of Claims, December, 1919. [Vol. 109. While the work was going on, the claimant, who lived on adjacent land, made no complaint to any state authority that the work was being left in an unfinished state, and though in the spring following the completion of the work he did complain that the fill was not smoothed off to his satisfaction the engineer for the state testified that the fill was substantially smooth, even and level. Held, that the claim should be dismissed upon the merits. CLAIM for improper deposit of spoil on land. Frank H. Cronkhite, for claimant. Edward M. Brown, deputy attorney-general, for state. SMITH, J. I think the evidence in this case fairly shows a substantial compliance by the state with the conditions upon which the state and its contractors were permitted by claimant to deposit spoil on his land, as expressed in the release dated August 6, 1918. That instrument in terms granted and conveyed to the state and its contractors the right to enter upon the claimant's lands and to deposit thereon dirt and other materials to be excavated from the Hudson river and released and discharged the state and its contractors of and from any and all liability and damages and claims for damages or compensation growing directly or indirectly out of the use or occupancy of said lands for the purposes aforesaid or out of the deposit thereon of spoil or materials excavated in the course of the construction of the barge canal terminal. The grant and release is stated to be given upon the following terms and conditions, viz.: "1. That the top surface of the spoil to be deposited as aforesaid shall not extend above elevation of the natural ground contiguous with the limit line of the deposited material. Misc.] Court of Claims, December, 1919. "2. That the spoil when deposited shall be leveled and trimmed to substantially even and continuous planes." Claimant contends that the language above quoted required the state and its contractors to so fill and grade claimant's land as that when completed there would be a gradual slope from the highway to the water surface of the river, and it is conceded that this has not been done. This contention of claimant cannot be sustained. No condition is imposed by the release for filling to any particular elevation at any part of claimant's property or for any particular slope. There is no evidence that the spoil at any point extends above the elevation of the natural ground contiguous with it and it does appear that the spoil as deposited lies in substantially even and continuous planes and substantially level. The state and its contractors were not required to make a lawn upon this spoil area. The lands upon which the spoil was to be placed were lowlands frequently overflowed by the waters of the river. It was manifestly to the advantage of claimant to have them filled in and raised up so as to make them available for some practical use. Claimant consented that this be done by the state's contractors by dredging from the river soil and other material with the character of which he was familiar. The filling has been accomplished and the surface of the lands raised to an elevation of about thirteen feet above low water level. It would seem that this must necessarily have made his lands more valuable. Claimant lived on lands adjacent to the parcel in question while the work was going on and made no complaint to any state authority that the work was being left in an unfinished state until the spring following the completion of the work. He now complains that the fill was not smoothed off to his satisfaction and County Court, Kings County, December, 1919. [Vol. 109. speaks of "holes" and "hummocks " but the cross section drawing made by the engineer for the state indicates that the fill is substantially smooth, even and level, and the engineer has testified that that is the condition in which the fill was left. We so find upon all the evidence. The claim should be dismissed upon the merits. ACKERSON, P. J., concurs. Claim dismissed. THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. STEPHEN G. HOVELL, Appellant. (County Court, Kings County, December, 1919.) Appeal city ordinances - power of the board of aldermen of the city of New York to prescribe punishment for breach of ordinance — evidence — misdemeanor - criminal law Greater New York charter — Code of Ordinances, chap. 3, art. 3, §§ 60-62. an The board of aldermen of the city of New York has power, under the Greater New York charter, to pass an ordinance (Code of Ordinances, chap. 3, art. 3, §§ 60-62) which in effect defines, as a misdemeanor, the maintaining and operating of a carousel without a license, and prescribes a fine or imprisonment for a violation thereof. Where upon a trial for the violation of said ordinance there was no evidence that the defendant operated the carousel in question other than the assumption by his counsel for the purposes of argument or in his opening, the conviction of defendant must be reversed and a new trial ordered. APPEAL from a judgment of conviction in a City Magistrate's Court. Albert A. Hovell (Hovell, McChesney & Clarkson, of counsel), for appellant. |