able on appeal. (2) Under Laws of New York, 1883, chapter 205, section 10, authorizing an appeal to the Court of Appeals only from a final award of the board of claims, an appeal will not lie from the order of the board of claims denying a rebearing on such claims, as they were heard and the award was made by the canal appraisers and not by the board of claims. Dec. 17, 1889. Chaphe v. State. Opinion by Earl, J.

ASSUMPSIT-SUFFICIENCY OF EVIDENCE. -In an action for the proceeds of goods of plaintiffs sold by defendants, there was no direct evidence that defendauts had received such proceeds at the time the action was commenced. It appeared that the goods were sold August 16, and that defendants so reported to plaintiffs by letter on August 19, without stating that they had been paid for, and without remitting, giving as an excuse that plaintiffs owed them more than the goods amounted to, and defendants made a credit on their books to one of the plaintiffs before the action was begun, which was on October 6. One of the defendants testified that they did not receive the proceeds until after the action was begun. There was no evidence that plaintiffs relied on, or were misled by, defendants' letter. Held, that the questions whether defendants had received the proceeds before the action was begun, or were estopped to deny it, were for the jury; and it was immaterial that, as defendants were not authorized to sell on credit, the presumption was that the sale was for cash, as such presumption was not conclusive. Second Division, Jan. 14, 1890. Rosenberg v. Block. Opinion by Vann, J. Reversing 54 Super. Ct. 537.

BANK-CHECKS-TRANSFER.- (1) Where a certified check, which was obtained by fraud from a bank, is cashed in good faith by a firm, and the payee, by mistake on both his part and that of the firm, fails to indorse it, the firm holds subject to all original defenses, and the bank is not liable; nor does a subsequent indorsement by the payee, made after the firm received notice of the fraud, entitle the firm to recover. Harrop v. Fisher, 30 L. J., C. P. 283; Whistler v. Forster, 14 C. B. (N. S.) 248; Savage v. King, 17 Me. 301; Clark v. Callison, 7 Ill. App. 263; Haskell v. Mitchell, 53 Me. 468; Clark v. Whitaker, 50 N. H. 474; Calder v. Billington, 15 Me. 398; Bank v. Taylor, 100 Mass. 18; Gilbert v. Sharp, 2 Lans. 412; Hedges v. Sealy, 9 Barb. 214-218; Bank v. Raymond, 3 Wend. 69; Raynor v. Hoagland, 39 Super. Ct. 11; Muller v. Pondir, 55 N. Y. 325; Freund v. Bank, 76 id. 352; Trust Co. v. Bank, 101 U. S. 68; Osgood v. Artt, 17 Fed. Rep. 575. It would seem that having taken title by assignment for such was the legal effect of the transaction, by reason of which the defense of the bank against Brown became effectual as a defense against a recovery on the check in the hands of the plaintiffs as well - Brown and Bingham & Co. could not by any subsequent agreement or act so change the legal character of the transfer as to affect the equities and rights which had accrued to the bank; that the subsequent act of indorsement could not relate back so as to destroy the intervening rights and remedies of a third party. This position is supported by authority. Harrop v. Fisher, Whistler v. Forster, Savage v. King, Haskell v. Mitchell, Clark v. Whitaker, Clark v. Callison, Bank v. Taylor, Gilbert v. Sharp, cited supra. Watkins v. Maule, 2 Jac. & W. 243, and Hughes v. Nelson, 29 N. J. Eq. 547, are cited by the plaintiff in opposition to the view we have expressed. In Watkins v. Maule the holder of a note obtained without indorsement collected it from the makers. Subsequently the makers complained that the note was only given as a guaranty to the payee, who had become bankrupt. Thereupon the holder refunded the money and took up the note, upon the express agreement that the makers would

pay any amount which the holders should fail to make out of the bankrupt payee's property. The makers were held liable for the deficiency. Hughes v. Nelson did not involve the precise question here presented. The views expressed however are in conflict with some of the cases cited; but we regard it, in such respect, as against the weight of authority. Freund v. Bank, supra, does not aid the plaintiff. In that case it was held that the certification by the bank of a check in the hands of a holder who had purchased it for value from the payee, but which had not been indorsed by him, rendered the bank liable to such holder for the amount thereof. By accepting the check the bank took, as it had the right to do, the risk of the title which the holder claimed to have acquired from the payee. In such case the bank enters into contract with the holder by which it accepts the check and promises to pay it to the holder, notwithstanding it lacks the indorsement provided for; and it was ac cordingly held that it was liable upon such acceptance upon the same principles that control the liabilities of other acceptors of commercial paper. Lynch v. Bank, 107 N. Y. 183. (2) The bank is not estopped to deny liability on the check from the fact that it was certified. It is well settled that the maker or acceptor of a negotiable instrument is not estopped from contesting its validity because of representations contained in the instrument. In such cases an estoppel can only be founded upon some separate and distinct writing or statement. Clark v. Sisson, 22 N. Y. 312; Bush v. Lathrop, id. 535; Moore v. Bank, 55 id. 41; Fairbanks v. Sargent, 104 id. 108; Bank v. Railroad Co., 13 id. 638. Second Division, Jan. 14, 1890. Goshen Nat. Bank v. Bingham; Bingham et al. v. Goshen Nat. Bank. Opinion by Parker, J. Affirming 44 Hun, 622.

CONTRACT-ANNULMENT OF CONSIDERATION. -(1) The parties to a contract annulled it by an agreement reciting that it had been "superseded by agreements and arrangements made in lieu thereof," which were embodied in certain contracts executed by the same parties. By these, defendant's testator was to be relieved from all interest in and obligations under the original contract. Held, that the obligations assumed by testator under the new contract, and the mutual agreement of the parties to the original contract to discharge each other from reciprocal obligations thereunder, and to substitute a new contract therefor, were sufficient considerations for the anuulment. (2) An executory parol contract, made in substitution of s former sealed contract, and carried out in full, discharges the former contract. The contract of March 2, 1882, is sealed, while the agreement annulling it is unsealed. Upon this fact the plaintiffs make a point, founded on the doctrine of the common law that a contract under seal cannot be dissolved by a new parol executory agreement, although supported by a good and valuable consideration; "for," as is said, “every contract or agreement ought to be dissolved by matter of as high a nature as the first deed." Countess of Rutland's Case, 5 Coke, 256. The application of this rule often produced great inconvenience and injustice; and the rule itself has been overlaid with distinctions, invented by the judges of the common-law courts to escape or mitigate its rigor in particular cases. But in equity the form of the new agreement was not regarded; and, under the recent blending of the jurisdiction of law and equity, and the right given by the modern rules of procedure in this country and in Eugland to interpose equitable defenses in legal actions, the common-law rule has lost much of its former im portance. A recent English writer, referring to the effect of the common-law procedure acts in England, says: The ancient technical rule of the common law, that a contract under seal cannot be varied or discharged by a parol agreement, is thus practically super.

seded." Leake Cont. 802. Courts of equity often interfered by injunction to restrain proceedings at law to enforce judgments, covenants or obligations equitably discharged by transactions of which courts at law had no cognizance. See 2 Story Eq. Jur., § 1573. It is a necessary consequence of our changed system of procedure that whatever formerly would have constituted a good ground in equity for restraining the enforcement of a contract or decreeing its discharge will now constitute a good equitable defense to an action on the contract itself. It was one of the subtle distinctions of the common law, as to the discharge of covenants by matter in país, that, although a specialty before breach could not be discharged by a parol agreement, although founded on a good consideration, nor even by an accord and satisfaction, yet, after breach, the damages, if unliquidated, could be discharged by an executed parol agreement, because, as was said, in the latter case the cause of action is founded, "not merely on the deed, but on the deed and the subsequent wrong." Broom Leg. Max. 848, and cases cited. The absurd results to which the common-law doctrine sometimes led is illustrated by the case of Spence v. Healey, 8 Exch. 668, in which it was held that a plea to an action on covenant for the payment of a sum certain, that, before breach, defendant satisfied the covenant by the delivery to and acceptance by the plaintiff of goods, machinery, etc., in satisfaction, was bad, Martin, B. saying: "I am sorry that I am compelled to agree in holding that the plea is bad. It is difficult to see the correctness of the reasons upon which the rule is founded." I suppose there can be no doubt that the fact presented by the plea in the case of Spence v. Healey would have constituted a good ground for relief in equity. The technical distinction between a satis faction before or after breach seems to have been disregarded in this State, and a new agreement by parol, followed by actual performance of the substituted agreement, whether made and executed before or af ter breach, is treated as a good accord and satisfaction of the covenant. Fleming v. Gilbert, 3 Johns. 530; Lattimore v. Harsen, 14 id. 330; Dearborn v. Cross, 7 Cow. 48; Allen v. Jaquish (Cowan, J.), 21 Wend. 633. So also a new agreement, although without performance, if based on a good consideration, will be a satisfaction, if accepted as such. Kromer v. Heim, 75 N. Y. 574, and cases cited. Jan. 14, 1890. McCreery v. Day. Opinion by Andrews, J. Affirming 6 N. Y. Supp.

49.

CONTRACT

-CONSIDERATION.- Plaintiff's assignors for the benefit of creditors assumed the contract of another to deliver certain bonds to defendants, and made a ten per cent deposit as security for the performance of the agreement on their part, payable on the joint order of themselves and defendants, in consideration of an extension of time and a like deposit by defendants. The bonds were never delivered. Held, that the contract was supported by sufficient consideration and valid, and that defendants, in the absence of fraud, would not be decreed to join plaintiff in an order for the payment of the deposit to him, for the benefit of the assignor's creditors. Dec. 17, 1889. Chittenden v. Morris. Opinion by Danforth, J. Affirming 5 N. Y. Supp. 713.

Cornwall. Opinion by Finch, J. Affirming 3 N. Y. Supp. 51.

CONTRACTS-CONDITIONS. Under the provisions of a contract that the party of the first part should retain from the amount coming to the party of the second part for performing certain work, inspectors' fees for such time as the work should remain uncompleted beyond a specified time, but that the time during which the work is delayed by the party of the first part, which should be determined by third parties, should be excluded, it is a condition precedent to the right of the party of the second part to be relieved from the allowance of such inspectors' fees for the time that the work was delayed by the party of the first part, that the matter should be submitted to and determined by such third parties, unless they refuse or neglect to act upon it. Seymour v. Turn, 17 Johns. 170; Gray v. Barton, 55 N. Y. 68; Coulter v. Board, 63 id. 366; Simson v. Brown, 68 id. 355. If the commissioner had neglected or refused to act when called upon to do s0 a different question would be presented. Smith v. Brady, 17 N. Y. 176; Bank v. Mayor, etc., 63 id. 337; Nolan v. Whitney, 88 id. 648. Jan. 14, 1890. Phelan v. Mayor, etc., of the City of New York. Opinion by Andrews, J. Affirming 4 N. Y. Supp. 631.

CORPORATIONS-INSOLVENCY-FRAUDULENT PREFERENCES. (1) The Revised Statutes of New York, part 1, chapter 18, title 4, section 4, provide that whenever any incorporated company shall have refused the payment of any debt it shall not be lawful for such company, or any of its officers, to assign or transfer any of its property or choses in action to any of its officers or stockholders, directly or indirectly, for the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of its insolvency to any person or persons whatever. Creditors of a corporation, knowing that it was insolvent, arranged with an officer thereof that he should not disclose the service of the summons on him. They afterward obtained judgments by default, and sold the personal property of the corporation on execution. Held, that there was no violation of the statute, as it puts no restraint on creditors, and only on the affirmative action of the corporation and its officers. (2) The fact that the corporation was dissolved, and a receiver appointed, after the sheriff had levied on the property and taken possession thereof, does not make a subsequent sale thereof by the sheriff, while it was still in his hands, void, but, at most, irregular. (3) The amount of the property not being sufficient to satisfy such judgments, the sale could not be rendered void by the fact that, after the sheriff had taken possession of the property under such executions, an execution was issued on a void judgment, and, by agreement of the judgment-creditors, the property was sold by virtue of all the executions, and the proceeds applied pro rata thereon. Jan. 14, 1890. Varnum v. Hart. Opinion by Earl, J. Reversing 6 N. Y. Supp. 346.

EVIDENCE-ACTION ON NOTE-APPEAL- COSTS.-(1) In an action on a note, questions asked of plaintiff as a witness, whether any part of the note had been paid, and whether he was the holder of the note, are harmless, as non-payment of the note would be presumed till proof was given to the contrary, and the production of the note made plaintiff prima facie its holder and owner. (2) Where the objection argued on appeal was not raised below, it will not be considered, though an objection on another ground was made below to the same ruling. (3) Costs in proceedings on a statutory reference of a claim against a decedent's estate are within the discretion of the court, and its decision will not be reviewed. Jan. 14, 1890. Hawxhurst v.

the exercise of plaintiff's right to terminate the tenancy rested soly in intention, which might not have been executed. (2) The fact that the lessees subsequently sub-let the premises, and the plaintiff accepted the sub-tenancy for the residue of the term, is not a waiver of his right to recover damages theretofore sustained by reason of the alleged fraud. (3) Recovery of judgment on the lease by plaintiff against all the lessees jointly, for the amount of rent due by them, is no bar to the action for the fraudulent representations against the lessee who made them, as his liability is several. Second Division, Jan. 14, 1890, New York Land Imp. Co. v. Chapman. Opinion by Bradley, J. Reversing 54 Super. Ct. 297.

INSURANCE-BILL OF LADING.-A clause in a bill of lading that the carrier, on being held liable for a loss, shall have the benefit of any insurance obtained on the goods, conflicts with a provision in an insurance policy that the insurance company shall be subrogated to the claims of the insured against the carrier for losses, and that the insured will make no agreement, nor do any act, whereby his right of action against the carrier for losses shall be released, and the insured cannot recover on the policy. When goods in the hands of a common carrier for transportation are insured by the owner, and are subsequently lost or injured under circumstances rendering the carrier liable to the owner for the damages, and the insurer pays the loss to the owner, the insurer, in the absence of stipulations between the carrier and owner defeating the right, is entitled to be subrogated to the rights and remedies of the owner against the carrier. Hall v. Railroad Co., 13 Wall. 367; Insurance Co. v. Railway Co., 73 N. Y. 399; Sheld. Subr, § 229. But the struggle between carriers and insurers to escape the liability imposed under the usual bills of lading and policies, by casting the burden of the loss upon the other by the insertion of unusual and astute provisions in their respective contracts with the owner, has rendered this simple rule of law quite inapplicable to many of the cases arising under such special contracts. The provision quoted from the bill of lading cut off the insurer's right to be subrogated to the rights and remedies of the owner against the defaulting carrier. Insurance Co. v. Calebs, 20 N. Y. 175: Platt v. Railroad Co., 52 N. Y. Super. Ct. 496; affirmed, 108 N. Y. 358; Insurance Co. v. Transportation Co., 10 Biss. 18; affirmed. 117 U. S. 312, and 118 id. 610. It has been held (Jackson Co. v. Insurance Co., 139 Mass. 508) in an action by the owner against the insurer for the recovery of a loss covered by the policy, and caused by the actionable negligence of the carrier, that a stipulation between the owner and carrier, giving the latter the benefit of any insurance upon the goods, is not a defense to the insurer, and that a provision in the policy "that this insurance shall be void in case the policy, or the interest insured thereby, shall be sold, assigned, transferred or pledged without the consent in writing of the insurer," is not violated by the agreement between the owner and carrier that the latter should have the benefit of any insurance on the goods carried. In Inman v. Railway Co., 129 U. S. 128, the defendant, a common carrier, transported cotton under a bill of lading which contained a stipulation that the carrier incurring any legal liability for the loss of the cotton "shall have the benefit of any insurance which may have been effected upon or on account of said cotton." The owners insured the cotton under policies which contained this stipulation: "And any act of the insured waiving or transferring, or tending to defeat or decrease, any such [the insurer's] claim against the carrier, or such other person or persons, whether before or after the insurance was made under this policy, shall be a cancellation of the liability of the said insurance company for or on account of the risk insured for which loss is

claimed. In event of loss the assured agrees to subrogate to the insurers all their claims against the transporters of said cotton, not exceeding the amount paid by said insurers." The cotton was lost by the negligence of the carrier. The insurers adjusted the loss, but did not pay the owner, agreeing with him that he should sue the carrier without prejudice to his claims under the policies, and that interest should be allowed upon the claim as adjusted until it could be collected. The assured owner sued the carrier, which defended on the ground that by the stipulation in the bill of lading it was entitled to the insurance effected on the cotton, which the owner had nullified by accepting a policy containing the stipulation quoted. It was held that the stipulation in the policy was not a defense. It is unnecessary to determine whether the reasons given for the judgment in the case last cited can be harmonized with reasons given for the judgments in the previous cases herein before cited, because none of the cases determine the precise question presented in the case at bar. The plaintiffs in this action expressly stipulated that they would make no agreement, nor do any act, whereby the right of action against the carrier for losing or injuring the leather should be released or cut off, and that in case the carrier became liable to the plaintiffs for losing or injuring the leather, the defendant, the insurer, on paying the loss, should be subrogated to their right of action against the carrier. By the contract entered into between the plaintiffs and the carrier, the rights stipulated for by the insurer have been wholly nullified and cut off, which defeats the plaintiffs' right to recover on the policy. Carstairs v. Insurance Co., 18 Fed. Rep. 473. Second Division, Jan. 14, 1890. Fayerweather v. Phenix Ins. Co. Opinion by Follett, C. J. Affirming 54 Super. Ct. 545.

MUTUAL BENEFIT

CONDITIONS OF

INSURANCE POLICY.-A provision in a life insurance certificate that no question as to the validity of an application or certificate of membership shall be raised, unless such question be raised within the first two years from and after the date of such certificate of membership, and during the life of the member therein named," embraces the defense of fraud of the insured and beneficiary in obtaining the certificate. Second Division, Jan. 14, 1890. Wright v. Mutual Ben. Life Ass'n of America. Opinion by Potter, J. Affirming 43 Hun, 61.

JUDGMENT -RES ADJUDICATA-VACATING ASSESSMENT.—(1) A decision refusing to vacate an assessment as to a particular lot does not validate the whole assessment, nor affect other parties aggrieved by it. (2) Laws of New York of 1874, chapter 313, forbidding the vacating an assessment on account of certain specified irregularities and omissions, "except only in the cases in which fraud shall be shown," does not affect a case in which there had been no advertisement and no competition. In re Eager, 46 N. Y. 100; In re Merriam, 84 id. 596. Jan. 14, 1890. In re Rosenbaum. Opinion by Finch, J. Affirming 6 N. Y. Supp. 184.

MORTGAGE-FORECLOSURE-SETTING ASIDE SALEREFEREE'S DEED. (1) Where a judgment of foreclosure of the mortgage bonds of a telegraph company recites the amount due on the bonds, and refers the matter to a referee to report the sums due on the bonds, and the names of the owners thereof, and also of the coupons issued with the bonds, and orders the mortgaged property sold unless "the amount herein found" should be paid, a sale made by the referee before he reported the amount of the bonds, and confirmed by the court, is a harmless irregularity, where the mortgagor makes no complaint, and the entire proceeds of the sale are exhausted by claims paramount to the bonds. (2) The referee has power after sale to

make a deed of the property, where the judgment provides that the purchaser shall obtain possession on the production of the referee's deed, in which the telegraph company and its receiver are to join. (3) Where the judgment provides for the payment of the price partly in cash and partly in receiver's certificates and mortgage bonds to be received only for a pro rata amount, the sale is not rendered invalid because the receiver's certificates delivered proved insufficient in amount to pay the balance due, where the purchaser gives ample security to pay any balance found due, and the court, in confirming the referee's report, orders him to determine such balance. (4) It is in the discretion of the court to refuse to set aside the sale because a reorganization scheme, entered into by some of the creditors with petitioner, and under which the purchase was to be made at the foreclosure sale, is not carried out, where petitioner has sued the parties to the reorganization for fai.ure to carry out the agreement. (5) The relief asked will not be granted where petitioner does not offer to bid more than the purchaser paid, in the event of a new sale, nor show that any one would, and where more than two years have elapsed since the sale, and a new corporation has expended money on the property, and it would be impossible to restore the parties to their former position. Jan. 14, 1890. Farmers' Loan & Trust Co. v. Bankers' & Merchants' Tel. Co. Opinion by Earl, J. Appeal from 6 N. Y. Supp. 643.

RAILROADS-STREET-NEGLIGENCE.- Plaintiff's intestate, a boy ten years of age, attempted to cross the street in front of defendant's moving street-car, and when within about two feet of the horses' heads fell, and was run over by the car. The evidence conflicted as to how far in front of the horses' heads deceased started to cross. The distance from the horses' heads to the front wheel of the car was about nineteen feet, and there was evidence that the car could have been stopped within sixteen to eighteen feet. The driver was standing in his usual place, and applied the brakes instantly when he saw deceased. He testified that on account of the darkness he first saw deceased when he was within two feet of the horses' heads, and that he could not stop in time, because the horses stepped over deceased, and that he fell and rolled toward the car. Held, that the death of deceased was not due to negligence of defendant. Dec. 17, 1889. Dorman v. Broadway R. Co. Opinion per Curiam. Reversing 5 N. Y. Supp. 769.

STREET

DAMAGES. A city ordinance authorized the defendant railroad company to construct its railroad through one of the city streets, and authorized and required it to construct an embankment at the intersection of the street with another street on which plaintiff's property abuttted, so as to carry public travel on the cross street over the track. An embankment was constructed, under the direction of the city engineer, on the cross street. Held, in an action for damages sustained thereby, that as the city could have constructed the embaukment without liability to plaintiff, it could authorize defendant to construct it, and defendant was not liable to plaintiff for damages caused thereby. Such is the settled law of this court. Bellinger v. Railroad Co., 23 N. Y. 42; Uline v. Railroad Co., 101 id. 98; Conklin v. Railroad Co., 102 id. 107. The cases certainly cannot be distinguished, because in the one case a country highway was crossed and in the other a city street. Nor are they distinguishable because the embankment in this case may be more inconvenient and damaging than in that. If the defendant here is liable for the damages now claimed, it would have been liable for any embankment raising the grade of the street which caused to the abutting owner any appreciable inconvenience

and damage. A rule imposing such a responsibility, either upon municipalities or railroad companies, to be enforced by actions, would be very onerous and embarrassing, and lead to much vexatious litigation. In the absence of some special provision of statute law, imposing responsibility upon municipalities or those who act under them for changing the grade of a street, it must be immaterial what the causes were which made the change of grade necessary or useful. Those who are clothed with the public authority must exercise their discretion, as to the reparation and adaptation of the streets, without exposure to actions by abutting owners for consequential damages caused to them. If the defendant in this case is responsible for these damages, what could it have done to escape them? It was bound to raise the embankment in Water street, and it was bound by the law and the city ordinances to raise the embankment in Commercial street. There was nothing in the street for it to take or which it could take by condemnation proceedings under the General Railroad Act. It took none of the plaintiff's abutting property, and he had no property rights in the street which were taken. The street remained there as before, devoted exclusively to street purposes, simply being less convenient for the abutting owner. The defendant, having the authority of the statute and of city ordinances for what it has done, is not liable to the plaintiff, unless it has violated some right of his inviolably protected by the Constitution. What constitutional right of his has been violated? The land over which the street runs has been devoted to street purposes, and may be subjected to all the burdens required for such purposes. Would the plaintiff's constitutional rights be violated if the grade of the street were raised for one public purpose, and not violated if raised for another public purpose? Does the status of his constitutional rights in any way de pend upon the cause which, in the estimation of the public authorities, makes the alteration of grade necessary? And would such rights be invaded every time the grade should be altered so as to cause him some damage? The principles laid down in the case of Story v. Railway Co., 90 N. Y. 122, do not apply to this case. They were invoked in the Conklin Case, and held not to be applicable. In the Story Case the railway was constructed in the street upon which Story's property abutted. It was held that the street was subjected to a new burden and use, and that it was no longer exclusively devoted to street purposes, and that so far as the railway interferred with the plaintiff's easements for light, air and access, it took his property for which the railway company was bound to make him compensation. If this plaintiff had been an abutting owner upon Water street, he might have invoked the principles of that case for his protection. In the Story Case no one questioned the right of municipal authorities, or those acting under them, to alter at pleasure the grade of streets for street purposes without making compensation to abutters. There are, undoubtedly, many cases where serious damages are done to abutting owners upon a street by altering the grade thereof, and the Legislature having regard for private rights, should generally make some kind of adequate provision to compensate such persons, specifying and regulating the mode of estimating and paying their damages; and it is believed that such provisions are contained in many of the city charters. One is found in the charter of the city of Buffalo (tit. 9, § 17), and the plaintiff should have pursued his remedy under that provision. (2) We ought further to say that an erroneous rule of damages was adopted at the trial. The plaintiff was not entitled to recover for the permanent diminution in the value of his lots, but was entitled only to recover such damages as he sustained prior to the commencement of the action, within the rule laid down in the Uline