and 121 New York State Reporter

Meyer purchased 500 shares of stock, and the defendants agreed "that if, at the end of one year from this date, the said Meyer shall desire to sell the said shares at the price paid for the same by him, we will purchase the same and pay to him the amount paid by him on the same with interest." It was held that it was incumbent upon Meyer, in order to sustain an action brought to recover the amount paid for such stock, with interest, to prove that on the 4th day of April, 1874, he offered or tendered a transfer of such shares to the parties agreeing to purchase the same. The court said: "That was a condition precedent, according to the terms of the agreement upon which the right to recover this money depended." In the opinion of the late Judge Daniels, which was concurred in by Van Brunt, P. J., and Brady, J., many authorities are cited in support of the proposition.

In Page v. Shainwald, 169 N. Y. 246, 62 N. E. 356, 57 L. R. A. 173, the effect of a similar contract was considered, the agreement on the part of the defendant in that case being:

"I hereby agree, if requested so to do by you on the first day of January, 1897, within ten days thereafter to pay to you the amount paid by you upon said subscription," etc.

It was held that, as the plaintiff failed to tender his stock and make the request on the day named, he could not recover, although he did so three days after, and notwithstanding the day named in the contract was a legal holiday. To the same effect is Hakes v. Peck, *40 N. Y. 505; McNutt v. Clark, 7 Johns. 465.

This is a case where an obligor agrees to do something "at the end of" a certain time, in case the obligee so elects. It is not for a jury to say that such election may be made at a different time than that specified in the contract, or at any time within five years thereafter.

We think the cases referred to in the prevailing opinion have no bearing upon the question in controversy.

Pierson et al. v. Crooks et. al., 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831, was an action to recover under an executory contract for the sale and delivery of goods of a specified quality, and it was simply held that the purchaser had a reasonable time in which to determine whether or not the goods were of such quality. In that case the court said:

"It stands upon the most obvious justice and equity that the seller should be apprised promptly if there is any objection, and the vendee intends to reject the goods, so that he may retake possession or resell the goods, and save himself, as far as practicable, from loss; but the vendee has a reasonable time for examination and to give notice, and what is a reasonable time is usually a question of fact, and not of law, to be determined by the jury upon all the circumstances, including as well the situation and liability of injury to the vendor from delay, as the convenience and necessities of the vendee."

The case of Grabfelder v. Vosburgh (decided at the last term of this court) 85 N. Y. Supp. 633, also referred to in the prevailing opinion, we think, has no application to the question involved in this case. There the plaintiff sold a new brand of whisky to the defendant upon the express condition that, if the defendant could not sell it-no time being fixed-he would not be required to pay for it, and that the plaintiff would take it back; and it was simply held that it was for the jury

to say, under all the circumstances, whether the defendant kept the goods for such length of time as to be deemed to have ratified the sale, or whether he offered to return the same within a reasonable time. All cases of that class are decided upon the theory that there was an implied contract that the vendee should have a reasonable time for inspection. If the contract of sale, however, provides that the inspection shall be made on or before a certain day, and the goods returned to the vendor if found unsatisfactory, it would not be claimed that a jury might be permitted to say that it was only reasonable that the vendee should have a longer time in which to make such inspection, and thus be relieved from paying for the goods.

We think it should be held that the facts disclosed by the evidence in the case at bar failed to establish a cause of action in plaintiff's favor, as against the defendant, and that the motion for a nonsuit should have been granted.

STOVER, J., concurs.

(42 Misc. Rep. 440.)

SHERMAN LIME CO. v. VILLAGE OF GLENS FALLS.

(Supreme Court, Special Term, Warren County. January, 1904.)

1. DEDICATION-EVIDENCE-SEWERAGE PRIVILEGES.

Where owners of land, containing a ledge in which there was a natural fissure running underground to a river, for 10 years allowed a village to construct an outlet for a sewer system over their lands to the fissure, and erect a brick building to make the proper connections, they have dedicated to that extent their lands to the public use.

2. INJUNCTION-NUISANCE.

Owners of lands dedicated to the use of a village the right to construct a sewage system to a natural fissure in a ledge of rocks, flowing underground to a river. Thereafter, because of increased sewage, the village constructed an overflow pipe to conduct the surplus to the river by an open ditch in said lands, which at times overflowed. Held to entitle the owner of the lands to an injunction restraining the further discharge of sewage upon his lands otherwise than in the manner allowed by the original system, and only in connection with the fissure.

Action by the Sherman Lime Company against the Village of Glens Falls to require defendant to remove sewage from lands of plaintiff, and to enjoin a future discharge thereof. Judgment for plaintiff.

Potter & Kellogg, for plaintiff.

Wm. M. Cameron (F. A. Rowe and C. R. Patterson, of counsel), for defendant.

SPENCER, J. The plaintiff is the owner of a strip of land in the village of Glens Falls, lying between the Hudson river and Warren street, containing an extensive ledge of valuable lime rock, which the plaintiff has used and is still using in the manufacture of lime. There is a fissure in the rock about a thousand feet from the river bank, running from the surface underground to some point in the bed of the river. This fissure, for a long time, has been used as a sinkhole to carry away surface water and to drain certain dry docks situated in the neighborhood.

and 121 New York State Reporter

In the years 1891 and 1892 the defendant, by its board of sewer commissioners, planned and constructed a system of sewers for the use of the public in said village. Darwin W. Sherman, the principal owner of the property in question, was chairman of said board, and took an active part in its proceedings. At his suggestion, and with the knowledge and concurrence of the other owners of the property, the outlet line of the sewer system was constructed from a point on Warren street across said property to and into the opening of said fissure, where a substantial and permanent building of brick was erected for the purpose of connecting the sewer pipes with said fissure. The village sewage thus found its way through the pipes into the fissure and thereby into the river. Since that time the defendant has, from year to year, increased its sewer system by adding to the area drained thereby, and has thus continually added to the amount of sewage necessary to be disposed of through the fissure. In the year 1897 the fissure, either by becoming clogged or by being too small for the increased flow of sewage, or both, failed to carry off all the sewage gathered by the system, and the same overflowed and spread over plaintiff's lands. In order to regulate this, the defendant constructed an overflow pipe at or near the brick structure, by which such surplus was conducted across the lands of the plaintiff in an open ditch to the river. From that time to the present more or less sewage has continued to run through the overflow pipe and along the ditch, but on occasions these are inadequate and the sewage spreads over the adjacent lands. The plaintiff contends that all that the defendant has done in respect to the discharge of its sewage by means of the fissure and over its lands has been done under a license which has expired by revocation, and this action is brought to recover damages for the injury to said premises caused by the overflow of the sewage, and for judgment directing the defendant to remove its sewer pipes and sewage from said premises, and for an injunction restraining their further use.

As to the institution of the sewer system and the appropriation and use of the fissure as an outlet to such system, I cannot agree with the plaintiff's contention. I am of the opinion that there was a dedication by the owners of the property to a public use. It appears without dispute that the sewage system was constructed with a view to the use of the fissure as its outlet, and everything points to the conclusion that its occupation for that purpose was intended to be permanent. I think, therefore, that the defendant has a right to occupy and maintain its sewer from Warren street across the premises of the plaintiff to the opening of the fissure, and to use said fissure for the purpose of carrying away such sewage to the extent of its capacity. The fissure is simply a natural extension of the artificial sewer, and constitutes a part of the system originally planned and constructed.

But I think there was no dedication of the plaintiff's premises to any other or further use. The dedication of the fissure and the right to lay the sewer pipes to connect therewith did not contemplate any use of the premises beyond the capacity of the fissure as a continuation of the sewer. The construction of the overflow pipe came about in a different way. Its necessity was not contemplated at the time the owners of the property dedicated the use of the fissure and land for

sewer pipes to the public use. Its necessity resulted from the enlargement of the defendant's sewer system, demanding an outlet of larger capacity, or because the fissure had been allowed to become clogged or its usefulness as an outlet impaired. The dedication went no further than the use of the fissure to the extent to which it might be employed, and did not include the right to otherwise use the plaintiff's premises for an outlet in case the fissure, for any reason, became insufficient. The allowance by the plaintiff of the construction of the overflow pipe was, to a very great extent, imposed upon it by the exigencies of the situation and the necessities of the defendant, and was not a voluntary and intentional dedication of its property to the public use. When by the growth of the defendant's sewer system it became necessary to provide for an increased outlet, the defendant was bound to look elsewhere, and could not by virtue of its necessities impose upon the plaintiff the obligation to enlarge its dedication. I am therefore of the opinion that the defendant has no right to maintain the overflow pipe or to discharge by that means, or in any other manner, its surplus sewage upon the premises of the plaintiff, and that the maintenance of such overflow pipe, since notice to discontinue the same was given, has been in violation of the plaintiff's rights. The same rule applies to any use of the plaintiff's premises, except the use of said fissure and the pipes leading thereto, and reasonable opportunity to repair and maintain the same from time to time as planned and constructed.

As to the question of damage, the testimony is very conflicting. The plaintiff contends that its limestone is exceedingly porous, and that sewage matter has been absorbed by it to such an extent as to destroy its usefulness for the purpose of manufacturing lime. I think much of this claim rests upon the sheerest speculation. It is simply beyond belief that limestone can, to any extent, be permanently injured by the flow of sewage over it. Any deposits which may result therefrom may be removed by very simple and inexpensive methods. There can be no doubt that the plaintiff has been discommoded and suffered loss from the presence of sewage flowing over the quarry, and that it will be put to expense in removing the deposits. As to all such loss and expense it should be fully compensated, but I am strongly of the opinion that when such deposits are removed the stone will be as serviceable as ever. I have carefully examined the views of the several witnesses in respect to the injury, and have come to the conclusion that the sum of $1,000 will fully compensate the plaintiff for the loss which it has thus far sustained.

The plaintiff may have judgment for the removal of the overflow. pipe, and for damages caused by the loss and injury to its premises in the sum stated, together with an injunction restraining the defendant from further discharging its sewage upon the premises of the plaintiff, other than by the use of the fissure and sewer pipes leading thereto, to which reference has been made.

Let findings of fact and conclusions of law be prepared in accordance with the above, the same to be settled upon notice, when parties will be heard as to the time the injunction order should take effect. Costs to plaintiff. Judgment accordingly.

87 N.Y.S.-7

(42 Misc. Rep. 436.)

and 121 New York State Reporter

WEEKS v. CITY OF NEW YORK et al.

(Supreme Court, Special Term, New York County. January, 1904.)

1. EQUITABLE ASSIGNMENTS-PRIORITIES.

A city contractor, after partial performance, defaulted, and was paid by the city for what he had done. Thereafter, with the consent of the city, he assigned the contract to a surety, who completed it, and received a certificate of the payment due. Thereafter such surety, with the consent of the city, assigned his claim to one who assigned it to plaintiff. Before anything had been earned on the original contract, the contractor, with the consent of the city, assigned to a firm, which furnished neither labor nor material under the contract, a sum alleged to be a first lien on the final payment to secure a past-due debt. Held, that the rights of the plaintiff in an action against the city to recover his claim out of the balance due by the city to the surety were superior to the assignment of the firm, though subsequent in point of time.

Action by Frederick D. Weeks against the city of New York and others. Judgment for plaintiff and for defendant Paladino.

Weeks Brothers, for Frederick D. Weeks.

George L. Rives, Corp. Counsel, for city of New York.

Jacob Marks, for surety companies.

Kellogg & Rose, for Luther L. Kellogg.

Baggott & Ryall, for Peters, Calhoun & Co.

Frederic Swift, for City Trust Co.

Hermann Lindheimer, for Paladino.

Abraham Nelson, for Muertzhagen, administrator.

DAVIS, J. On January 16, 1895, one Domenico Lordi entered into a contract with the city of New York for the furnishing, delivering, and laying of water mains from shaft No. 25, new aqueduct, to the pumping station at Highbridge, in the city of New York, and at the same time gave a bond to secure the faithful performance of the contract in the penal sum of $20,000, with sureties, one of whom was the defendant Michael Paladino. The contractor Lordi began work under the contract in January, 1896, and stopped work and abandoned the contract in October, 1896. At the time of the abandonment of the contract Lordi had performed work amounting to the value of $6,990, on account of which he had been paid $6,291, 10 per cent. having been retained under the provisions of the contract until the work should be completed. In April, 1897, no work having been done under the contract since its abandonment by Lordi in 1896, the commissioner of public works served a notice upon Lordi, declaring the contract abandoned, and that the work was unnecessarily delayed, and that it would be readvertised and relet. Thereupon Lordi, in June, 1897, with the written consent of the commissioner of public works and of the other sureties, assigned the contract to Paladino, one of his sureties on the bond given for the faithful performance of the contract. Paladino immediately began work under the contract, and completed it in January, 1898. In March, 1898, the inspector in charge of the work, the assistant engineer, chief engineer, and commissioner of water supply (who, under the Greater New York Charter, had taken the place of the commissioner of public works) certified that the work had been satisfac