Argued before GOODRICH, P. J., and BARTLETT, HATCH, and WOODWARD, JJ. Alfred A. Gardner (William J. Kelly, on brief), for appellant. GOODRICH, P. J. The action is for the recovery of damages resulting from negligence, and the only question presented by the ap pellant on the argument of this appeal related to the excessive amount awarded for damages. A motion for a new trial was made, and the justice who presided at the trial denied the same, delivering the following opinion: "I think the verdict for the plaintiff amply warranted by the evidence. The fact that the platform was made to slope to the Manhattan Beach tracks indicates conclusively that it was expected that passengers should cross the Manhattan Beach tracks at that point; but, if it were not for the disinclination of courts to interfere with the assessment of damages by juries, I should grant a new trial on the ground that the damages awarded were excessive. The only permanent injury claimed is a slight hernia, and the evidence to connect that injury with the accident is so flimsy and unsubstantial that it is not credible that the jury should have found that this injury was the result of the accident. The failure of the plaintiff to call her physician, without explanation, amounts practically to a confession that he could not testify in her favor as to the permanent injury claimed. As stated above, if it were not that I consider the weight of precedent against it, I should certainly grant a new trial unless plaintiff stipulated to reduce the verdict to $500.” The final sentence may be open to the construction that the learned justice stated that the weight of precedent was against the right of the trial court to set aside or to reduce a verdict at the trial term, and it is only for this reason that we take occasion to say that the residence of such a power in the court at trial term is inherent, and beyond question, and needs no citation of authority. We have had frequent occasion during the existence of the present appellate division of the supreme court to exercise the power of reducing verdicts which we considered excessive, but this power can never be used more satisfactorily than at the trial term, where the court has the opportunity, not only of seeing and hearing the parties and witnesses, but of judging of their behavior on the stand. Bannon v. McGrane, 45 N. Y. Super. Ct. 517. It is to be regretted that this power has not more frequently been resorted to in cases where it is so clear that such manifest injustice has been done that the appellate division has been constrained to review and reduce the amount of verdicts which have apparently been rendered under the influence of passion, prejudice, partiality, sympathy, or misconception. We have no hesitation in giving practical effect to the opinion of the learned justice at trial term, and reducing the amount of the verdict to $500, without further consideration of the evidence. Judgment and order reversed, and new trial granted, costs to abide the event, unless the plaintiff within 20 days stipulates to reduce the recovery of damages to $500, in which case the judgment, as modified, is unanimously affirmed, without costs. All concur. 51 N.Y.S.-8 (28 App. Div. 475.) and 85 New York State Reporter. SCHAFHAUS v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. April 19, 1898.) OPENING STREET-PROCEDURE. To rescind a resolution closing a street is virtually to adopt a resolution opening it; and, to make the recission effective, the same formalities must be observed as would be necessary to open a street in the same locality in the first instance. Action by Bertha Schafhaus against the city of New York. Submission of controversy on agreed statement of facts. Judgment for plaintiff. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ. Arthur Hurst, for plaintiff. Almet F. Jenks, for defendant. WILLARD BARTLETT, J. The object of this proceeding is to establish the plaintiff's right to the possession of certain premises which she occupies for purposes of floriculture, in the former town of Gravesend, now the Thirty-First ward of the borough of Brooklyn. There is no doubt that these premises are situated in Neptune avenue, as that street was duly opened by proceedings taken in 1885 and 1886. On December 12, 1892, however, the board of supervisors of Kings county adopted a resolution changing the line of Neptune avenue, which had the practical effect of moving that avenue 40 feet to the south of its original location, between West Sixth street and West Fifteenth street. This action closed the northerly half of Neptune avenue as originally laid out between the streets mentioned, and it is within the portion thus closed that the greenhouses and other structures of the plaintiff are located. The contention of the defendant is that this resolution closing the north half of a part of Neptune avenue was rendered ineffectual by the subsequent action of the board of supervisors, on May 1, 1893, before the plaintiff acquired title to the property in controversy, in adopting a resolution which in terms rescinded that adopted on December 12, 1892; and hence that the portion of the avenue occupied by the plaintiff's hothouses and appurtenances is to be regarded as though no proceedings had ever been taken to close it, and not only as having been a public street when the plaintiff purchased her property, but as being a public street to-day. The difficulty with this view is that the proceedings to close it were effectual in law, while the proceedings to reopen it were not. The authority of the board of supervisors to act in the matter was derived from chapter 289 of the Laws of 1892. The board was by that act empowered to authorize the laying out, opening, grading, construction, closing, and change of line of such a street as Neptune avenue or any part thereof; but its power in these respects could be exercised only on the petition of property owners of more than half the frontage on the street or avenue, or, in lieu thereof, upon the certificate of certain town officers that the improvement was in their judgment proper and necessary for the public interest. When the board of supervisors undertook to close the part of Neptune avenue in question, by the resolution of December 12, 1892, the various preliminary requirements of the statute in respect to this certificate were all complied with; and so, as I have said, the closing of that portion of the street was legally accomplished. When, however, we come to the rescinding resolution, we find that none of the conditions were observed which the act prescribes as essential to the exercise of authority on the part of the board of supervisors in the opening of a street. There was no consent of the property owners, nor was there any certificate of the town officers. But one or the other of these was as necessary to give validity to the rescinding resolution as it was to afford a legal basis for the resolution closing the north half of the avenue between West Sixth street and West Fifteenth street. To rescind a resolution closing a street is virtually to adopt a resolution opening it; and, to make the rescission effective, the same formalities must be observed as would be necessary to open a street in the same locality in the first instance. This view is in no wise in conflict with the proposition that the power to enact an ordinance or resolution ordinarily implies the power to repeal or rescind it. The board of supervisors did have the power to rescind the resolution of December 12, 1892, but only by complying with the conditions which were a statutory prerequisite to the adoption of the resolution. Upon the agreed statement of facts, the city of New York has no easement or other right in the premises occupied by the plaintiff, and she is entitled to an injunction restraining the municipal authorities from interfering in any manner with her possession. All concur. (28 App. Div. 478.) PEOPLE ex rel. WHITE г. CLINTON et al. (Supreme Court, Appellate Division. Second Department. April 19, 1898.) 1. CERTIORARI-REVIEW. Where the return to a writ of certiorari practically admits all the allegations of the petition, the facts thus alleged, as well as those set out in the return, may be considered by the court. 2. DEPUTY SHERIFF-FEES-LIABILITY OF TOWN. Fees earned by a deputy sheriff as a peace officer in criminal proceedings or criminal actions tried before a magistrate of the town where the offense is alleged to have been committed constitute a town charge, which it is the duty of the local board of auditors to audit. "Town Law," § 165; Code Cr. Proc. § 154. 3. SAME REVIEW ON CERTIORARI. While a determination of the board of auditors that such a claim is not a town charge is reviewable by certiorari, the court does not, in reversing it, pass upon the propriety or legality of the claim in respect to its particular items and amounts. Certiorari by the people, on the relation of William H. White, against William H. Clinton and others, auditors of the town of Cortlandt, county of Westchester, to review a determination disallowing the claim of relator which was presented to the said board of audit, and $5 New York State Reporter. on the ground that the items were not legal charges against such town. Reversed. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ. Nathan P. Bushnell, for relator. WILLARD BARTLETT, J. In disposing of this case the court may consider the facts which are stated in the petition, as well as those which are set out in the return, inasmuch as the return practically admits all the allegations of the petition. People v. Wurster, 149 N. Y. 549, 44 N. E. 298. The record, indeed, discloses a substantial agreement between the parties as to the facts, and leaves only a question of law for us to determine. That question is whether the fees of a deputy sheriff, acting as a peace officer in criminal actions tried before a magistrate of the town where the offense is alleged to have been committed, are a legal charge against such town. Fees of this character are clearly embraced within the language of section 165 of the town law, and must be regarded as a town charge, unless a peace officer is excepted from the operation of that section because he happens also to be a deputy sheriff. The relator is a deputy sheriff of the county of Westchester, and by virtue of his appointment as such is a peace officer, under the provisions of section 154 of the Code of Criminal Procedure, which declares that "a peace officer is a sheriff of a county, or his undersheriff or deputy, or a constable, marshal, police constable or policeman of a city, town or village." His claim against the town of Cortlandt is made up of fees for services rendered by him as a peace officer in criminal actions, or other criminal proceedings, begun or tried before a magistrate of the town, for offenses alleged to have been committed within the town. The refusal of the respondents to audit the claim was evidently based upon the proposition that, in performing these services, the relator acted simply as the representative of the sheriff, instead of in an independent capacity; and therefore that his fees, like those of the sheriff, his principal, should be deemed charges against the county, and not against the town. This view finds no support in authority, and is directly opposed to the opinion expressed by the court of appeals in Deyoe v. Woodworth, 144 N. Y. 448, 39 N. E. 375, where it is held that the fees of a deputy sheriff, as a peace officer, belong to him alone and are payable to him alone. In that case it was expressly stated that "the bills of the deputy were made out in his own name against the towns for fees in criminal cases payable to him as a peace officer, which in no manner belonged to the sheriff by law, and upon which the latter had no legal claim." The court also declared that the sheriff was in no wise liable for the acts of a deputy sheriff in his character as peace officer; for the authority of the latter does not proceed from the power bestowed by law upon the sheriff, but is directly conferred upon the deputy in his capacity as peace officer. To the same effect is the decision of the general term of the Third department in Deyoe v. Ewen, 70 Hun, 545, 24 N. Y. Supp. 372, in which the court pointed out that, although the defendant was a peace officer under section 154 of the Code of Criminal Procedure, because, and only because, he was a deputy sheriff, yet the fees received by him in criminal proceedings were received by him in payment of his duties as a peace officer, and were not to be regarded as in any sense the fees of a sheriff. Under these authorities, it is quite clear that any fees earned by the relator as a peace officer in criminal proceedings or criminal actions, tried before a magistrate of the town of Cortlandt, where the offense was alleged to have been committed in that town, constituted a town charge, which it was the duty of the respondents to audit, and that their determination to the contrary was erroneous. That determination is reviewable by certiorari. People v. Barnes, 44 Hun, 574. In reversing it, however, we do not pass upon the propriety or legality of the relator's claim, so far as the particular items and amounts are concerned, but merely hold that the respondents erred in deciding that fees of the character under consideration were not a charge against the town. Determination of respondents, that relator's fees as peace officer are not a charge against the town, reversed, with $10 costs and disbursements. All concur. (28 App. Div. 493.) ALVORD v. FLETCHER. (Supreme Court, Appellate Division, Second Department. April 19, 1898.) INJUNCTION-BUILDING RESTRICTIONS. Where two parcels of land are both subject to the same covenant, restricting the class of buildings to be erected thereon and their distance from the street, the fact that the owner of one of them is maintaining thereon a building which violates the covenant justifies the court in refusing him a preliminary injunction restraining the owner of the other parcel from committing a similar breach. Appeal from special term, Westchester county. From an order vacating a preliminary injunction, plaintiff appeals. firmed. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ. Milo J. White, for appellant. Frank M. Tichenor, for respondent. PER CURIAM. The purpose of this action was to prevent the erection of a chapel or meeting house on the defendant's land, in violation of a covenant to which the premises were subject, and which, among other things, prohibited the erection thereon of "any buildings, except substantial dwellings and the usual outbuildings to dwellings." A preliminary injunction was granted upon the complaint and an affidavit of the plaintiff's attorney. This injunetion was shortly afterwards vacated at special term upon affidavits in behalf of the defendant, which showed that the church proposed to be erected was merely a temporary building, to be used by a congregation in the city of Mt. Vernon until their permanent church edifice should be completed, which would probably be within 24 months, at the expiration of which period the temporary church |