and under the law the claimant presented the claim to the Court of Claims for determination. The case has been twice tried by that court. Upon the first trial the claimant was awarded $2,000 damages for the land appropriated. An appeal was taken from that judgment to this court, where the judgment was reversed upon the ground that the Court of Claims adopted an erroneous basis of value in fixing the damages. Hall v. State of New York, 72 App. Div. 361, 77 N. Y. Supp. 282.

One of the questions involved in the former appeal was whether the owners had acquired by prescription the right to erect a dam at the place in question, which would set the water of the stream back, and thereby overflow lands belonging to others, and it was decided that they had acquired such right, and that such a right was appurtenant to the lands and passed under a conveyance thereof. It was also decided that the claimant had not, by nonuser, lost such right, and that the evidence showed no intention to abandon it. The case has been again tried by the Court of Claims, and, notwithstanding the former decision of this court, upon evidence not essentially different from that on the former trial, but covering more completely the questions presented, that court has held that the claimant and his predecessors in title had acquired no prescriptive right to maintain a dam for the entire year, but for only eight months of the year, and that without the right to maintain the dam for the entire year the claimant had no merchantable water power which could be made the basis of damages. Nothing was, therefore, awarded him for the water power. This appears to be squarely in the face of the principle established by this court upon the former appeal, and which, until reversed, must stand as the law of the case.

Without attempting to review the evidence, it is sufficient to say that to our minds it shows clearly that for upwards of 50 years the predecessors in title of the claimant and those acting with them had maintained a dam at the place in question 91⁄2 feet high, which set the waters back upon the adjacent property of other owners at all times when it suited their convenience to do so. While the evidence does not show that the flooding had been absolutely continuous during all of that time, because of breaks and leakages in the dam, and because of letting the water out of the dam at certain times to float logs in the river below, it does show that these persons exercised the right to overflow the lands during that time at will. There is nothing in the evidence that these periodical cessations in the continuity of the flooding showed any intention of abandoning the right to flood whenever they desired. Nor did such cessation come from any act or interference of the owners of the uplands. The fact of flooding and of impounding the waters and of their use appear to have been dependent wholly upon the pleasure and will of the owners and of the person operating the dam by their leave. Under such circumstances there is no interruption in the continuity of the user or abandonment of the right to use. Nonuser does not affect the right to the easement unless the circumstances show an inference of abandonment. There must be an overt act indicating that the right is

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disturbed. Jones on Easements, § 189; Washburn on Easements (4th Ed.) 170-172.

It is said in 28 Am. & Eng. Enc. of Law (1st Ed.) p. 1009, that:

"The adverse use, in order to ripen into a prescriptive right, must be continuous during the whole period; but this does not mean that it must be constant, in the sense of daily use. When one uses the water whenever he sees fit without asking leave and without objection, the use is sufficiently continuous, and a grant may be presumed."

The same principle is held in numerous other authorities: Cornwell Mfg. Co. v. Swift, 89 Mich. 503, 50 N. W. 1001; Messenger's Appeal, 109 Pa. 290, 4 Atl. 162; Bodfish v. Bodfish, 105 Mass. 317; Land Co. v. Rogers, 83 Cal. 10, 23 Pac. 196, 17 Am. St. Rep. 209; Garrett v. Jackson, 20 Pa. 331.

While the questions of nonuser and of abandonment were not discussed at length in the opinion upon deciding the former appeal, yet they were involved therein the same as here, and necessarily entered into the decision there made, which was adverse to the contention of the state. The evidence upon those questions, while of much greater length on the last trial than on the first, is not materially different from that considered by the court upon the former appeal, where it was decided that the claimant had a prescriptive right to maintain his dam and to overflow the uplands. That decision must control the determination of this appeal. The inconsistency of the state is clearly shown in its insisting that the claimant has no prescriptive right, in order to reduce the compensation it should make to him, and then, after taking his property away from him for a public use, proceed at once to the erection of a dam at the place in question without any right whatever to do so other or different from that possessed by the claimant or his predecessors in title. At the time it took his property, the prescriptive right which the claimant had to maintain a dam there was a property right, for which he was entitled to receive just compensation. That has been denied him in the court below, and he has simply been awarded what his property was worth per acre for camp sites.

There was testimony that the dam, the reservoir made thereby, and the water power were valuable for storage of water for uses below on the river, for generating electricity, for sawmill and for other manufacturing purposes. Several witnesses as to value testified on behalf of the claimant. One expert witness, who had been a former state engineer and surveyor, valued the right to build a dam 91⁄2 feet high, and of the water power that would be produced by such a dam, at the time of the appropriation by the state, at the sum of $30,000. That estimate of value was, to a considerable extent, based upon the belief that there was a market in that vicinity for electricity that could be generated by such a water power. There is no very satisfactory evidence on behalf of the state, in this record, in denial of the fact that there was such a market. Upon another trial, however, it may appear more clearly just how much of a market is accessible there, and how much competition would be met in that neighborhood in the sale of electricity or of electric power. While we may have the power to modify a judgment by increasing the

award made by the Court of Claims upon findings of that court justifying such increase (Sayre v. The State of New York, 123 N. Y. 291, 25 N. E. 163), we do not think that in a case where there are no findings, and where the evidence might be materially changed upon another trial, we should do that.

The judgment should be reversed on the law, and on the facts, and a new trial granted in the Court of Claims, with costs of the appeal to the claimant. All concur.

(92 App. Div. 116.)

PEOPLE ex rel. NEW YORK REALTY CORPORATION v. MILLER,

State Comptroller.

(Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. CERTIORARI-RETURN-FRANCHISE TAX-ADJUSTMENT.

Under Laws 1896, p. 864, c. 908, § 196, providing that the Comptroller shall return on certiorari to review his determination, on the levy of a franchise tax, the accounts and all evidence before him on the application, and all the papers and proofs on the original statement of the account, and all proceedings thereon, a writ commanding the Comptroller to return the grounds of his refusal to revise a franchise tax imposed on relator is unauthorized.

2. SAME-DEFAULT-AMENDMENT-WAIVER.

In a proceeding to review by certiorari a determination of the Comptroller in refusing to revise a franchise tax, the Comptroller, by failing to appear on the return day of the motion for the writ, does not waive his right to move to amend the command by striking a provision directing him to return the grounds of his refusal, but the court should require him to excuse his default before hearing him on the motion.

3. SAME UNLAWFUL RELIEF.

Under Gen. Prac. Rule 37, providing, with respect to motions, that on default the relief asked may be granted unless the court shall otherwise direct, the court is not bound to grant unlawful relief, but it is incumbent on the opposite party, on receiving notice of a motion, to advise the court that the relief prayed was unlawful.

Appeal from Special Term, Albany County.

Certiorari by the people, on the relation of the New York Realty Corporation, against Nathan L. Miller, Comptroller of the State of New York, to review a determination in refusing to revise and adjust a franchise tax imposed on the relator. From an order denying the Comptroller's motion to amend the writ of certiorari, he appeals. Affirmed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

John Cunneen, Atty. Gen., and William H. Wood, Dep. Atty. Gen., for appellant.

Edward F. Clark, for respondent.

CHESTER, J. The order appealed from was made in a proceeding to review a determination of the Comptroller in refusing to revise and readjust a franchise tax imposed upon the relator. By it the appellant's motion to amend the writ of certiorari granted herein by striking from the command thereof the words, "and the grounds for your

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refusal to revise and readjust the same in the manner and as requested by said New York Realty Corporation," was denied. The motion for the writ was made upon notice to the Comptroller, who failed to appear upon the return day of the notice. The prayer for relief contained in the petition included a prayer that the Comptroller be directed to return the ground of his refusal to revise and readjust the tax, and that requirement was included in the writ as issued.

"

The tax law provides, with respect to the review of the determination of the Comptroller by certiorari, that "for the purpose of such review the Comptroller shall return on such certiorari the accounts and all the evidence before him on such application and all the papers and proofs upon the original statement of such account and all proceedings thereon." Laws 1896, p. 864, c. 908, § 196. The statute nowhere authorizes or requires the Comptroller to return the grounds of his refusal to revise or readjust the account for taxes. This court held, under section 252 of the tax law, in a case where a writ of certiorari commanded more than the statute required to be returned, that such command should be stricken out upon motion, as being unauthorized. People ex rel. Buffalo Gas Co. v. Commissioners, 55 App. Div. 186, 67 N. Y. Supp. 51. So, it was held by the old General Term in the First Department, that a board of assessors could not be required to return the methods by which they have arrived at a conclusion in determining the amount of damages sustained by property owners by reason of a change of grade pursuant to chapter 729, p. 1726, Laws 1872. People ex rel. Heiser v. Gilon (Sup.) 22 N. Y. Supp. 238. The same principle applies here, for this writ clearly requires the Comptroller to return more than the law, under which the proceedings to review were instituted, authorizes or requires him to return, and to that extent is unlawful.

The relator insists, however, that because the Comptroller did not appear upon the return day of the motion for the writ he has waived the right to move to amend it. It is true that the ordinary rule is that where a party makes a default in appearing the court may grant the relief prayed for. Indeed, rule 37 of the general rules of practice expressly so provides with respect to motions. But the same rule also provides that upon default the relief asked for may be granted "unless the court shall otherwise direct." The court, therefore, was not bound, in such a case, to grant the relief simply because it was asked for. Where a moving party in his papers asks the court to grant unlawful relief, it would not, even on default, grant such relief, if it had any knowledge or intimation that it was unlawful, but it would "otherwise direct," and would confine itself to the exercise of lawful pow

er.

It was fairly incumbent upon the appellant in this case, when he received the relator's notice of motion, to advise the court that the moving party was asking for more than it was lawfully entitled to, and thus save the court from being led by the other side into granting unlawful relief. The appellant not having done so, and not having made any attempt whatever to excuse his default, we think the court was justified, for these reasons, in denying his motion to amend the writ We think, however, that by simply failing to appear he did not waive his right to move to amend by striking out from the writ the provision

which the relator ought not to have asked the court to insert; but the appellant by his default having practically permitted, or at least not prevented, the insertion of such a provision, if the court is to enforce observance of the usual and orderly methods of practice it should first require him to excuse his default before hearing him upon his motion to strike out.

The order appealed from should be affirmed, with $10 costs and disbursements, with leave to the appellant to renew his motion to the Special Term on excusing his default. All concur.

(92 App. Div. 138.)

GALLAGHER v. GALLAGHER.

(Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. WITNESSES-CROSS-EXAMINATION-REFUSAL TO ANSWER.

Where a witness refused to answer a pertinent question on cross-examination, his testimony in chief should be stricken out.

Appeal from Trial Term, Ulster County.

Action by Catherine Gallagher against James H. Gallagher. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Brinnier & Searing, for appellant.

John E. Hardenbergh (Charles Irwin, of counsel), for respondent.

HOUGHTON, J. The plaintiff brought action for a separation, and the defendant, by counterclaim, alleged adultery on the part of the plaintiff, and asked an absolute divorce. The plaintiff's complaint was dismissed by the court, and the affirmative relief granted.

On the trial the defendant called as a witness the co-respondent, and proved by him facts from which the only legitimate inference was that the plaintiff had committed adultery with him, as alleged. On cross-examination the plaintiff asked of the witness the direct question whether he did have intercourse with the plaintiff at the time testified to by him. The witness declined to answer. The plaintiff pressed the question, and requested the court to direct the witness to answer, which the court did; the witness still refusing. The request that the witness be compelled to answer was repeated, and an exception taken to the refusal of the court to do so, to which the court replied that he had not refused, and directed that the examination proceed. The witness still declining to answer, the plaintiff moved that his direct testimony upon the point involved be stricken from the record, which motion was denied, and an exception taken. We think this was error for which the decree must be reversed. The court should either have compelled the witness to answer, or should have stricken from the record his evidence upon that subject. A party has the right to cross-examine a witness produced against him by his adversary, and to have an answer to pertinent questions relating to testimony given on direct examination. The penalty for a denial of this right is the rejection of the testimony given in chief.