in their terms in respect thereto, and the necessity for the exercise of the powers conferred by the section last cited, for the reasons above stated, is apparent from the reading of the several enactments. The charter has conferred no power upon the board to reduce any member of the police force in rank, whether transferred or appointed, and its powers, control, and authority over the police forces transferred, and over their tenure of such membership and removal therefrom, is declared by the section last cited to be the same as the said board should have over the members of said force appointed thereto by said board. The practical interpretation of section 281 made by the board of police commissioners in this case, that Buschmann, a captain, could at will, and by a mere resolution, be reduced to a patrolman, logically results in the somewhat startling proposition that in like manner a deputy chief, an inspector, any other captain, a sergeant, or a roundsman transferred from any of the consolidated municipalities may be reduced to an inferior rank, even to that of a patrolman. That such was not the intention of the legislature is also inferable from section 287, relating to first appointments under the charter, that "the captains of police shali be selected from, first, the captains, and, second, from the sergeants of the respective police forces transferred by sections 277, 278, 279 and 280 of this act," and from section 288, relative to promotions, that "sergeants of police shall be selected from among patrolmen assigned to duty as roundsmen, as provided by section 292 of this act; captains from among the sergeants; inspectors from among the captains; deputy chiefs of police from among inspectors and captains; and chief of police from among deputy chiefs, inspectors and captains." Such practical interpretation by the board is also negatived by section 283, relating to salaries, that "the salary or compensation of any of such members of the said police force as are specified in sections 277, 278, 279 and 280 of this act, as the same is lawfully fixed at the time this charter takes effect and immediately prior thereto, shall not be decreased." It is further negatived by section 299, relative to salaries of officers and members of the force, and their grade, based upon their years of service respectively, wherein it is declared, among other things, that the annual salary or compensation of each captain of police shall be $2,750; that "all other patrolmen or policemen of the various police forces consolidated into a single force by the provisions of this act, shall belong, so far as pay or compensation is concerned, to the grade indicated by the pay or compensation which they are respectively receiving on January first, eighteen hundred and ninety-eight. But nothing in this section contained shall be construed to affect in any other way the rights and privileges secured under the provisions of this act to the members of the various police forces consolidated into a single force by this act. * Any member of the forces so transferred not a member of the New York police force prior to January first, eighteen hundred and ninety-eight, whose salary falls between two grades, shall receive the salary of and be assigned to the grade next above the salary he is receiving at the time of transfer. Salaries of all officers in the forces so transferred, other 72 N.Y.S.-9 * * and 106 New York State Reporter If than officers in the New York police prior to January first, eighteen hundred and ninety-eight, shall be equalized on the same basis. the difference in pay is not more than fifty dollars, the pay shall be equalized at once. If the difference is more than fifty dollars, the pay shall be made uniform within three years by equal annual additions." From the foregoing, I am clearly of the opinion, and have reached the conclusion, that the action of the board of police commissioners in denying to Buschmann his rank as a captain of the police force of the city of New York was an assumption of power, and wholly unwarranted by law; and that the plaintiff, as administratrix, is entitled to recover from the defendant his salary as a captain from January 1, 1898, to October 8, 1898 (the date of his death), less the amount received as pay of a patrolman for the period, and 2 per cent. of such salary to be deducted for the police pension fund, as provided by subdivision 10 of section 353. Counsel for the defendant has cited People v. York, 44 App. Div. 539, 60 N. Y. Supp. 889, and People v. York, 48 N. Y. 611, 63 N. Y. Supp. 156, as conclusive authorities in support of his contention. These cases were before me at special term, and the learned appellate division affirmed the orders made in the first instance, holding by implication, if not in words, in the opinions handed down, that the language of section 281 was broad enough to admit of the action of the board which is challenged here. That question was not presented or considered at the special term; the assignment of Baldwin and Allen having been made by the board in obedience to a writ of mandamus in each instance, in which assignment the relators respectively acquiesced for about one year before asserting their claim to superior rank; and this fact, and the other reasons set forth in the several opinions written at the special term, were there regarded as decisive. It would seem that the question deemed controlling by the learned appellate division in the cases cited had not been fully presented to that court, and that the sections correlative to section 281, hereinabove referred to and considered therewith, had not been brought to its attention. I am not unmindful of the doctrine of stare decisis, yet, with due deference to what has been written by the eminent jurists in the Baldwin and Allen Cases, I am impelled to the conclusion reached in the case at bar, for the reasons hereinabove expressed. Judgment should therefore be entered in favor of the plaintiff against the defendant for the sum of $737.56 (being for 246 days' service at $2,116.66 per annum, less 2 per cent. for police pension fund, and $660.46 paid), with interest, and costs. Judgment for plaintiff, with costs. (35 Misc. Rep. 622.) JAGER v. CITY OF NEW YORK. (Supreme Court, Special Term, Kings County. August, 1901.) DAMAGES-INJURY TO WATER SUPPLY. Where the owner of four and one-half acres provided the same with ditches for market gardening, and his supply of water was shut off by the introduction in 1894 by a city of the driven well system, he could not recover as against the city $20,000 for seven years' loss of crops; nor where the crops annually failed to mature is he justified in continuing to plant them, and to recover for their loss against the city. Action by Lear Jager, Jr., against the city of New York to recover damages for diversion of underground waters by driven wells operated by defendant. Judgment for plaintiff. See Forbell v. City of New York, 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695. Charles Coleman Miller, for plaintiff. John Whalen, Corp. Counsel (R. Percy Chittenden and James W. Prendergast, Jr., of counsel), for defendant. CHESTER, J. There is one fact in this case which distinguishes it from cases of a like class, so far as I can judge, from the opinions that have recently been handed down by Justice Gaynor in Westphal v. City of New York, 34 Misc. Rep. 684, 70 N. Y. Supp. 1021, and by Justice Marean in Reisert v. City of New York, 35 Misc. Rep. 413, 71 N. Y. Supp. 965, and that is, that the plaintiff here has built a system of drainage canals or ditches upon his farm leading to Spring creek, which, before the installation of the driven well plant of 1894, kept his lands from being too wet for successful market gardening, yet drained the water under his land only to such a level that his crops received substantial aid from it by capillary attraction. Notwithstanding this, his claim for damages is exaggerated. It amounts to about $20,000, upon a farm of four and a half acres, for the period of seven years. He gives the only evidence as to the amount of the crops he claims to have been destroyed. It is largely indefinite and uncertain. He kept no accounts, except that he had some memoranda covering a limited period after he commenced his action. His evidence tends to inflate his damages beyond reason and beyond belief. After the first year or two he knew the effect upon his crops of the loss of the underground water, yet he kept on year after year putting in crops, only to have them, according to his testimony, practically a total failure in coming to maturity. I think he was not justified in accumulating damages in this way. He should have done what he reasonably could to avoid them. Giving the fact in relation to his system of drainage such weight as it is fairly entitled to, giving credit to such of his testimony as is worthy of belief, and giving force to the doctring of avoidable consequences, which, I think, should be applied to this case, I assess his damages at the sum of $1,200, without further discussing the voluminous testimony on that subject. Judgment for that amount may be entered, with costs. No injunction is awarded, and the question of fee damages is not considered. Judgment accordingly. (Supreme Court, Special Term, Onondaga County. July, 1901.) 1. WILLS-EQUITABLE CONVERSION. Though a will does not specifically provide for the sale of the real estate by the executor, where it authorizes a sale, and the entire scheme of the will is based on such sale. it constitutes an equitable conversion. 2. SAME-PARTITION. Where testator's realty is under the provisions of the will converted into personalty, and vests in a trustee, a child who is entitled to a distributive share of the estate cannot maintain an action to partition the realty. Action for partition by Jennie B. McGowan against William C. Tifft and others. Judgment for defendants. George W. Driscoll, for plaintiff. Eugene M. White, for defendants Wilson and others. N. R. Peckham, for defendants Patterson and others. HISCOCK, J. This is an action for partition. The question whether plaintiff has any legal title to and interest in the premises of which partition is sought depends upon the construction of the will of one James Auyer, her father. It is claimed by her that under such will she did take an interest in the farm in question. Upon the other hand, it is claimed by the defendants that the will in question provided for, and, in effect, directed, the sale of the real estate, and a conversion of it into money, with subsequent division of the proceeds among the plaintiff and others; so that there has been an equitable conversion of real estate, with the title thereto at present vested in the trustee, and that no title thereto, or any part thereof, vested in the plaintiff. I am inclined to think that the latter contention is the correct one. The language of the will in question does not specifically and absolutely, in so many words, direct the sale of this real estate. It does, however, authorize and empower the sale thereof, and the entire scheme of the will, so far as it relates to the subject of the present controversy, contemplates and is based upon such sale. The question of equitable conversion is largely one of intent, and such intent may be found, although the power of sale is not in terms imperative. I think the doctrine that an equitable conversion has been provided for in this case comes well within the principles of Power v. Cassidy, 79 N. Y. 602, 35 Am. Rep. 550; Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741; Morse v. Morse, 85 N. Y. 53; Lent v. Howard, 89 N. Y. 169; Gourley v. Campbell, 66 N. Y. 169. In addition to the terms of the will themselves, there was some evidence in regard to the situation of the estate covered thereby which sustains the conclusion that the testator intended to have a sale of the real estate involved here, and a conversion thereof into personal property. Ordered accordingly. (35 Misc. Rep. 606.) BOIGEOL v. EIGABROADT et al. (Supreme Court, Special Term, Onondaga County. July, 1901.) Mortgage-DEFAULT IN INTEREST-ELECTION TO FORECLOSE. Where a mortgage provides for foreclosure, on option of mortgagee, on default in installment of principal or interest, beginning of action to foreclose is a sufficient election, and the right is not affected by a clause requiring 60 days to elapse after demand and notice of default in payment of taxes and assessments. Action by Charles D. Boigeol against Harriet M. Eigabroadt and others to foreclose mortgage. Judgment for plaintiff. Nottingham, Pierce & Elliott, for plaintiff. HISCOCK, J. The clause in the bond and mortgage involved in this suit, providing for a period of 60 days "after notice and demand” before the whole amount conditioned and secured to be paid by the bond and mortgage should become due upon default, relates to default in the payment of taxes and assessments. This requirement of notice and demand does not relate or apply to a default in the payment of the principal or interest agreed to be paid by the bond and mortgage. A default in the payment of any such installment for the period of 60 days makes due the entire amount of the principal and interest, at the election and option of the mortgagee. Such election and option was manifested by the commencement of this suit, and, in accordance with these views, the plaintiff is entitled to a foreclosure of his mortgage for the full amount. Judgment for plaintiff. (35 Misc. Rep. 599.) PEOPLE ex rel. SCOBELL v. KILBORN et al., Assessors. (Supreme Court, Special Term, Onondaga County. July, 1901.) TAXATION-OBJECTIONS TO VALUATION-STATEMENT. Where a taxpayer appeared before the assessors on the review day, and insisted that his valuation should be reduced, and they, without requiring him to make the statutory statement, as required by the tax law of 1896, orally reduced his assessment to some extent, failure to file such a statement was waived. Certiorari by the people, on the relation of Jalbert Scobell, against John Kilborn and others, assessors of the village of Cape Vincent, to review an assessment of his realty. Defendants moved to quash the writ, which motion was denied, when they asked to have their return to such writ filed, and an order of reference under the statute. Order granted. J. W. Cornaire, for relator. Watson M. Rogers, for respondents. HISCOCK, J. Upon the proper day, and at the proper time, the relator appeared before the assessors, and verbally objected to the |