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be insufficient in law, because the lease specifically prescribes certain preliminary steps to be taken by the defendant before its right to cancel the lease and oust the plaintiff is perfected, and none of these preliminary steps has been taken, so far as it appears from this part of defendant's answer. For instance, the lease provides that, in case the party of the second part (the plaintiff) shall violate any of its covenants, it shall be lawful for the party of the first part, by resolution of the said board of docks, at its discretion, to declare the lease to have terminated, and forever thereafter to be null and void, and to serve a copy of the resolution on the party of the second part; that then and from thenceforth the lease shall come to an end, and the wharf revert to the party of the first part the same as if the lease had never been made, and that thereupon the party of the second part will peaceably surrender the wharfage to the party of the first part. Thus the defense is insufficient as such, (1) because of the absence of allegations of facts showing an unlawful use of the wharf in question, (2) because there is no allegation showing the adoption by the board of docks of a resolution terminating the lease, and (3) because there is no allegation of service of a copy of such a resolution upon the lessee as required by the lease. It follows, also, from the above considerations, that the use and maintenance by the plaintiff of dumps and ramps on the wharf would not give the defendant a cause of action against the plaintiff under this lease, and therefore the matter pleaded is not sufficient as a counterclaim. Nor is the contention sound that the fact pleaded in this defense should be allowed weight as a counter equity in favor of defendant. There is no equity in punishing the plaintiff for doing what it appears to have had a perfect right to do. As to this defense, I think the demurrer should be sustained.

A more complicated question is presented by the demurrer to the defense contained in paragraphs 15 and 16 of the answer. It is alleged in this defense that under chapter 152, p. 296, of the Laws of 1894, control of the water front, in which are located the bulkhead and pier referred to in the lease, was given to the department of docks and ferries for commercial purposes; that on May 17, 1901, pursuant to certain provisions of the Greater New York Charter for the adoption of a plan for the improvement of the water front of the city of New York, the board of docks determined upon the plan for the improvement of that section of the water front between Seventy-Seventh street and Eighty-First street which had been placed under the jurisdiction of the department of docks and ferries by the act of 1894; that after the determination of the board of docks upon the said plan it was, as provided in the charter, duly adopted by the commissioners of the sinking fund on the 20th day of June, 1901, and that, the plan having been thereafter returned to the office of the department of docks and ferries and filed therein, became, as provided by law, the sole plan or plans in accordance with which any improvement of the water front in that section or territory could be made; that, subsequently to the adoption of the plan, plaintiff and the defendant made and entered into the lease of July 22, 1901. Then follow allegations setting forth the various conditions referred to above, upon the happening of which the defendant has the right to terminate plaintiff's

interest under the lease, together with the allegation "that thereafter, and on or about the 3d day of December, 1902, the defendant, MacDougall Hawkes, commissioner of docks of the city of New York, determined that, for the purpose of proceeding with the work of building or rebuilding the wharves, piers, etc., within the section included. in the plan referred to, it was necessary to terminate the interest of the plaintiff in the wharfage and wharf property included in the lease, and thereupon caused to be served upon the plaintiff the notice of cancellation mentioned in the complaint, and that by reason thereof the interest of the plaintiff in the wharf property was terminated." For the purpose of the demurrer all the material allegations of fact in this defense are taken as true, and it is admitted by the answer that the plan of improvement referred to materially changes the bulkhead lines and pier lines of the district in question. The plaintiff contends that the plans were determined on and adopted without authority and in violation of law; that neither the Laws of 1894 (p. 296, c. 152) nor the charter of 1897 (Laws 1897, p. 1, c. 378) conferred any power upon the city authorities to adopt a plan of water-front improvement which materially changed the bulkhead lines and pier lines at the foot of West Seventy-Ninth street; and that therefore the attempted cancellation of its lease was illegal. It properly claims that the lease contemplated the adoption of legal plans as a condition of its cancellation, and that the defendant can base no rights on the adoption of plans in violation of law. If, therefore, it is true that the defendant had no authority under the Laws of 1894 and the charter of 1897 to adopt the plans referred to, the allegations of fact contained in the separate defense are necessarily insufficient in law upon their face to constitute a defense. It is contended by the defendant that these inquiries are not relevant on this demurrer. In the separate defense now under consideration the defendant alleges that certain facts exist by virtue of the Laws of 1894 and the Laws of 1897, and that these facts are a complete defense to plaintiff's demand for an injunction. In other words, it refers to these laws and the lease as the particular source of its right to take the steps which it has pleaded as entitling it to cancel plaintiff's lease. Now, an examination of these statutes thus made part of the defense may disclose that the proceedings taken by the defendant were not pursuant to, but in violation of, those very laws. If so, the defense must be insufficient in law on the face thereof, and the demurrer good. It is therefore pertinent to examine these statutes to ascertain whether the plans referred to were adopted "pursuant to any existing law," to quote the words of the lease. Under section I of chapter 152, p. 296, of the Laws of 1894, the water front on the Hudson river, from SeventySecond street to One Hundred and Twenty-Ninth street, with the exception of two parcels, is appropriated for public uses as an extension of Riverside Park. The two parcels excepted are set apart for public wharves. One of these parcels includes the pier at the foot of West Seventy-Ninth street, and is bounded on the east and west by lines established by chapter 288, p. 590, of the Laws of 1868. Under section 9, p. 306, of this act of 1894, the department of docks, in respect to these two parcels of land, is given "the same powers of

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control, maintenance, construction and jurisdiction which the said department has and now possesses under existing laws in respect to the water front or lands under water in other portions of said city, including the power to erect and maintain piers extending to the pier line as established by chapter two hundred and eighty-eight of the laws of eighteen hundred and sixty-eight." This provision did not increase the power of the dock department beyond what it possessed under existing laws, and it specifically recognized the act of 1868 as still in force. The "existing laws" referred to expressly provided that the dock board "shall not have the power to change the exterior lines of piers and bulkheads in the city of New York as now established by law." Laws 1873, p. 507, c. 335, § 88; Laws 1882, p. 199, c. 410, § 711. So far as the pier lines and bulkhead lines at the foot of West Seventy-Ninth street are concerned, they had been established by chapter 288, p. 590, of the Laws of 1868, and the act of 1894 conferred no power upon the dock board to change them, either when acting alone or with the approval of the sinking fund commissioners. Nor does the charter of 1897 confer this power, but, on the contrary, it contains the same prohibition against a change by the dock board of the pier lines and bulkhead lines, established by law (section 818, p. 291), except that, with the approval of the commissioners of the sinking fund, the board may change the pierhead lines and construct new piers in certain specified localities, which do not include West. Seventy-Ninth street (section 819, p. 291). The enumeration in the statute of these special exceptions, after the general prohibition, indicates an intention in the Legislature to preserve unchanged all other pier and bulkhead lines theretofore established by law. In the charter revision of 1901 we find there retained the same prohibition against changing pier lines with the same exception. Sections 817-819 Laws 1901, pp. 346, 347, c. 466. From an examination of the various statutes cited by counsel as defining the powers of the dock department, I am convinced that since the passage of the act of 1873 the dock department has never had the power, with or without the approval of the commissioners of the sinking fund, to change the bulkhead lines and pier lines at the foot of West Seventy-Ninth street as established by the act of 1868. It may be that this power existed under the act of 1870 (Laws 1870, p. 390, c. 137), as amended by the charter of 1871 (Laws 1871, p. 1235, c. 574); but if so, it was not exercised, and by the passage of the act of 1873, the power, if it ever existed, was taken away, and has not been restored since. Indeed, it is admitted by the defendant that no such power was exercised by the dock department down to May 17, 1901, and that the only plan ever determined upon by the city, and adopted by the commissioners of the sinking fund, for improving this pier and bulkhead, is the plan of May 17, 1901, which substantially changes the existing pier lines and bulkhead lines at this point (West Seventy-Ninth street). It may be claimed that the power to adopt the plan of May 17, 1901, is included in the power to alter and amend the plan adopted in 1871, as conferred by section 819, p. 291, of the charter of 1897. It is a full answer to this contention to point out that the plan of May 17, 1901, was not adopted as an alteration or amendment to the plan of 1871, which covered the territory

between the Battery and Grand street, on the East river, and the Battery and West Sixty-Second street, on the North river. See charter of 1897, p. 291, § 819. Furthermore, I think this power to alter and amend the plan of 1871 is limited to alterations and amendments within the limits of water front indicated on that plan, to wit, from West Sixty-Second street, on the North river, to the Battery, and thence to Grand street, on the East river. I am confirmed in this opinion by the fact that the same section (819) contains a special provision allowing a change of pier lines as far north as West Seventieth street, a part of the territory covered by the act of 1868. In view of the foregoing, I conclude that the plan of May 17, 1901, was unlawfully determined upon and adopted, and from that action the defendant can gain no right to cancel the plaintiff's lease, and the various steps pleaded as taken to accomplish that end were ineffective for that purpose; and therefore, although all the allegations of fact in this separate defense may be true, they would still be insufficient on their face as a defense to the cause of action set forth in the complaint. The demurrer to these defenses is therefore sustained, with costs.

Demurrer sustained, with costs.

(92 App. Div. 440.)

STEINBACH v. PRUDENTIAL INS. CO. OF AMERICA. (Supreme Court, Appellate Division, First Department.

March 18, 1904.)

1. AMENDMENT OF COMPLAINT AFTER SUCCESSFUL APPEAL BY DEFENDANTTERMS-AMOUNT OF COSTS.

In an action against an insurance company by the holder of a policy to reform it so as to make it payable to plaintiff, the company moved to dismiss because no one representing the assured was made a party. The denial of this motion was affirmed by the Supreme Court, but upon an appeal to the Court of Appeals was reversed, and a new trial granted, with costs to abide the event. Thereupon plaintiff moved to bring in a representative of the assured. Held, that the payment of $50 costs was adequate terms to be imposed on granting the motion.

Van Brunt, P. J., and Ingraham, J., dissenting.

Appeal from Special Term, New York County.

Action by Caroline Steinbach against the Prudential Insurance Company of America. From an order granting plaintiff's motion to amend the summons and complaint, defendant appeals. Modified.

See 70 N. Y. Supp. 809.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

William O. Campbell, for appellant.
Walter Large, for respondent.

PATTERSON, J. The plaintiff was the holder of a policy of insurance upon the life of one Max Fehrman, now deceased. That policy was made payable "unto the executors, administrators, or assigns" of the person named as the insured in the policy, that person being Max Fehrman. This action was brought to have the policy reformed by

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substituting for the words quoted the following: "unto Caroline Lampp [the plaintiff], her executors, administrators, or assigns." In the action as it was constituted, no one representing the interest of Fehrman was made a party. At the trial a motion was made to dismiss the complaint, for the reason that no one_representing the assured named in the policy was before the court. That motion was denied, and on appeal to this court the ruling of the trial court was sustained (70 N. Y. Supp. 809); but on appeal to the Court of Appeals (65 N. E. 281) that tribunal held that the representatives of Fehrman were necessary parties, and that without them the action could not be maintained. Therefore the judgment of the Special Term was reversed, and a new trial was granted, with costs to abide the event. Thereupon the plaintiff made the present motion to bring in the representative of Fehrman, which was granted on the payment of $10 costs.

The only matter to be considered now relates to the terms imposed for allowing the amendment; and we think they are altogether inadequate. By the decision of the Court of Appeals, costs are not absolutely given to the defendant. They are to abide the event. The defendant has litigated a question involved in the case from the time of the trial until the decision by the Court of Appeals, and upon that question it has been successful. Now, it is sought to change the case in the aspect in which it was disposed of by the Court of Appeals, and to deprive the defendant of the benefit of its appeals, simply upon the payment of $10. That the amount involved in the action is small cannot affect the right of the defendant to some indemnity for the expense it has been put to in prosecuting its several appeals. The order should therefore be modified by requiring, as a condition for granting the motion, the payment of $50. As thus modified, the order should be affirmed, without costs of this appeal.

HATCH and LAUGHLIN, JJ., concur.

INGRAHAM, J. (dissenting). I concur with Mr. Justice PATTERSON in allowing the amendment, but I do not think the terms upon which it is to be allowed are sufficient. The plaintiff was not entitled to any relief upon the cause of action alleged as determined by the Court of Appeals. The defendant, therefore, is now entitled to a dismissal of the complaint, which would cover costs of the action, including costs of the two appeals. If the plaintiff is now permitted to amend so as to obviate the objection that has been held to be fatal to any recovery, the defendant should certainly be allowed the costs of the action, including the costs of appeal, and I think that the payment of such costs should be the condition upon which the amendment is allowed.

VAN BRUNT, P. J. I dissent. It seems to me the height of injustice to impose only $50 costs as terms of amendment, when by such amendment there may be imposed on the defendant costs and disbursements for hundreds of dollars in respect to proceedings in which it has been successful.