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Second Department, March, 1910.

(Vol. 137. while in your employ on a float in the vicinity of Communipaw Ferry, North River, due to a collision which occurred in said vicinity of Communipaw Ferry. “ Dated BrookLYN, N. Y., July 15, 1903.

“SARAH A. CARLIN.” That this notice is wholly insufficient as a compliance with the provisions of the statute seems beyond discussion, notwithstanding the probability that the defendant dock company had other means of acquiring all necessary information. The giving of the notice required by the statute is a condition precedent to bringing an action within its terms. (Finnigan v. New York Contracting Co., 194 N. Y. 244.)

The judgment dismissing the complaint as against the defendant The New York Dock Company, and the order denying a new trial should be affirmed on reargument, with costs.

JENKS, Burr, Tuomas and Rich, JJ., concurred.

Judgment disinissing the complaint as against the defendant The New York Dock Company, and order denying motion for a new trial affirmed on reargument, with costs.

Gustav II. LIEDTKE, Appellant, v. IIENRY J. MEYER, Respondent.

Second Department, March 31, 1910. Landlord and tenant — summary proceedings — final order should award

possession - partial eviction - appeal from Justice's Court — failure of County Court to order new trial on reversal — power of Appellate Division.

A final order in favor of the landlord in summary proceedings should award

possession of the premises, not damages for unpaid rent. If there be a continuing partial eviction the landlord cannot maintain summary

proceedings against the tenant for non-payment of rent. It seems, that where the County Court on reversing an order in summary pro

ceedings made by a justice of the peace as against the evidence and law did not order a new trial before the same or another justice of the same county, the Appellate Division may modify the order of reversal, so as to direct the

County Court to order a new trial. But where the order of reversal does not purport to give judgment for the

defendant on the merits, the landlord will be left to a new proceeding.

App. Div.] Second Department, March, 1910.

APPEAL by the plaintiff, Gustav H. Liedtke, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 16th day of December, 1909, reversing a judgment of a justice of the peace in favor of the plaintiff.

Andrew I. Albert, for the appellant.

Ernest W. Tooker, for the respondent. Carr, J.:

This appeal brings up for review an order of the County Court of Suffolk county which reversed a final order of a Justice's Court in summary proceedings between a landlord and tenant for the recovery of possession of certain denuised premises. The proceeding was begun on a petition which alleged the tenant's failure to pay the monthly rent after a demand by the landlord. The tenant filed an answer, setting up as a defense a partial eviction by the landlord. When the proceeding came to trial the defendant testified that the premises rented to him consisted of a store, one-half of a barn of certain dimensions and accommodations, and a chicken yard with room for 200 chickens. During his absence in the city, in the latter part of 1908, the landlord entered upon the premises, removed the old barn which had stalls for four horses and a large hay loft, and covering altogether 800 square feet, and in place thereof erected a new barn with no hav loft and covering altogether only 306 square feet, and located the new barn in a place inconvenient for the tenant's use. The tenant claimed that he had no notice of any intended changes and never gave his consent thereto. The plaintiff offered no evidence to the contrary. Notwithstanding this evidence the justice made a final order in favor of the plaintiff. That is to say, we assume that he made a final order, for both counsel so refer to it, though it is not printed in the record on the appeal. The order made, whatever else its contents may be, awarded the petitioner the amount of the impaid rent. From this order, or judgment, or whatever it was in forin, the tenant appealed to the County Court. That court reversed the final order, with costs. From the order of reversal this appeal is taken.

If the order of the Justice's Court simply awarded the petitioner the amount of the unpaid rent, then it was clearly erroneons, as such

Second Department, March, 1910.

(Vol. 137. relief cannot be awarded in summary proceedings between a landlord and tenant. The final order, if in favor of the petitioner, should award possession of the premises and not dainages for unpaid rent. If in this case it did award possession to the petitioner, then it was likewise erroneous. When there has been a partial eviction by the landlord he cannot maintain summary proceedings against the tenant for non-payment of rent while the partial eviction continues. This rule may be very technical, but it has been so long existing and so frequently applied as to be beyond any present questioning. (Sirey v. Braems, 65 App. Div. 472; People ex rel. Murphy v. Gedney, 10 Hun, 151; Hamilton v. Graybill, 19 Misc. Rep. 521; Heinrich v. Mack, 25 id. 597; Seigel v. Neary, 38 id. 297.)

The order of the Justice's Court was, therefore, against the evidence and against the law. Its reversal by the County Court was, therefore, proper. On the reversal the County Court had power to order a new trial before the same or another justice of the same county. (Code Civ. Proc. § 3063.) It did not, however, so order. Doubtless on this appeal we may modify the order of reversal in such manner as to direct the County Court to order a new trial before the same justice or another justice of the same county to be designated by the County Court. (Hartmann v. lloffman, 76 App. Div. 449.) Inasmuch, however, as the order of reversal, as it stands, does not purport to give judgment for the defendant on the merits, it is not conclusive as to the rights of the parties. (Ellert v. Kelly, 4 E. D. Smith, 12.) The landlord, if he feels so advised, may begin a new proceeding.

The order of the County Court should be affirmed, with costs.

HIRSCHBERG, P. J., Burr, THOMAS and Rich, JJ., concurred. Order of the County Court of Suffolk county affirmed, with costs.

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In the Matter of THE PEOPLE OF THE STATE OF NEW YORK ex rel.

MARGARET H. Foot, Appellant, for a Mandamus, v. John Gross, as President of the Village of Tarrytown and PURDY WILLIAMS, as Street Commissioner of Said Village, Respondents.

Second Department, March 31, 1910.

Mandamus - denial of knowledge or information insufficient - village

encroachment on public street - public nuisance -- duty of officers to abate — respective duties of village president and street commissioner - mandamus - party — right of taxpayer to petition.

A denial of knowledge or information sufficient to form a belief as to the truth of the allegations of a petition for 'a peremptory writ of mandamus is

insufficient to raise au issue. A picket fence erected by a landowner so as to encroach upon a public highway

of a village is a public nuisance, and the officers of the village are under a

duty to abate it. Where, pursuant to the authority of sections 90 and 141 of the Village Law, the

trustees passed an ordinance forbidding encroachments and nuisances upon public streets under a penalty, the ininisterial duty of abating such encroachments or nuisances is cast upon the village president by section 80 of the

Village Law. Section 84 of the Village Law, defining the duties of a village street commis

sioner, imposes no duty to abate encroachments upon the public streets, and he is not required to do so until action has been taken by the president under

the village ordinances. The fact that a landowner in a village has a private interest in securing the removal of an encroachment upon a public street does not deprive her of the

right to compel the village authorities to abate the nuisance by mandamus. WOODWARD, J., dissented, with opinion.

APPEAL by the relator, Margaret H. Foot, from an order of the Supreme Court, made at the Westchester Special Terin and entered in the office of the clerk of the county of Westchester on the 17th day of November, 1909, denying the relator’s motion for a writ of mandamus.

Hartwell T. Heath [ Walter F. Peacock with him on the brief], for the appellant.

Clarence S. Davison, for the respondents.

Second Department, March, 1910.

[Vol. 137. CARR, J.:

The petitioner is a taxpayer and resident of the village of Tarrytown. On a verified petition she applied at Special Term in Westchester county for a peremptory writ of mandamus against the president and street commissioner of the village, requiring them to remove from a certain public highway in that village known as Cobb's lane a picket fence which an abutting owner had erected in front of his premises and which was located, as positively alleged in the petition, in the roadway of Cobb's line at about its middle line. The village president denied any jurisdiction in the matter, and further alleged that he “has no knowledge or information sufficient to form a belief as to * * * the full width of said lane, or that the picket fence referred to in the 7th paragraph of the petition herein is an encroachment upon said lane," etc. His answering affidavit further sets up that there is some doubt as to the true boundaries of the lane in question. The street comunissioner answered the petition by denying that any legal duty was imposed upon him under the circumstances. The learned court at Special Term refused to grant either a peremptory or an alternative writ of mandamus, for the reason, assigned in a brief memorandum, that the petitioner's rights were not clear, and that, as an abutting owner on the land, she miglit proceed by action to abate the nuisance of the alleged encroachment on showing her private damage. From the order entered on this decision the petitioner appeals.

According to the strict rule of pleading which prevails in mandamus proceedings, the denial by the respondent, the village president, of any knowledge or information sufficient to form a belief as to whether the picket fence in question was an encroachment upon Cobb's lane is insufficient to put in issue the positive allegations to the contrary in the petition. (People ex rel. Kelly v. Common Council, 77 N. Y. 503; Matter of Elder v. Bingham, 118 App. Div. 25; People ex rel. Frost v. N. Y. C. & H. R. R. R. Co., 168 N. Y. 187.)

This being so, we have a situation where, according to the record, a public highway is encroached upon to its middle line by a picket fence erected by a private owner. This condition constitutes a public nuisance, and the duty to abate it rests upou some public officials of the village. The president of the village

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