Matter of the Thirty-fourth Street Railroad Company.

stitution intended to open such questions by general laws to all the people, and not to shut them forever for the benefit of existing corporations, and legislation to accomplish that defeats the intent and object of the constitution. I am not able, therefore, to concur with my brethren. On the contrary, I I think the only subject for the general term to pass upon now is whether the petitioner has shown that a majority of owners along that part of the route under consideration have refused to consent to the construction of the petitioner's railroad.

The commissioners must, in the first instance, take care of all these questions, subject, of course, to the power of the general term, which is most ample to review their report whenever it comes in as shall then appear to be just and equitable. It is, I think, well settled law that where a duty to appoint commissioners to hear and determine a specified question is conferred by statute upon a court or any other body, upon the presentation of certain facts, the duty is so far administrative in its nature that the obligation becomes imperative, even though the language used by the statute might, under other circumstances, be regarded as conferring a mere discretion (People agt. Supervisors, 68 N. Y., 115; Haggadorn agt. Runx, 77 N. Y., 583; People agt. Supervisors, 51 N. Y., 401).

Such action does not, in any sense, permit the appointing body (where authority to review the action of the commissioners is conferred), upon any question whatever beyond that of the sufficiency of the proofs showing that the fact exists, which authorizes the court or body to appoint commissioners. I think the affidavits presented in this case do show that the consent of a majority of the property owners of that part of the route of the petitioners' proposed road affected by this proceeding cannot be obtained, and the petitioners are entitled to have commissioners appointed. For these reasons I dissent from the denial of the motion.

Under section 3234 of the Code of Civil Procedure the same rule prevails in ejectment as in replevin.

Where in an action of ejectment the complaint contained but one count to recover two separate parcels of land, separately described in the count, and as to both parcels the plaintiff's right to recover was put in issue by the answer, the verdict of the jury being in favor of the plaintiff as to one parcel, and in favor of the defendant as to the other, the defendant is entitled to costs as well as the plaintiff.

Monroe Special Term, July, 1885.

MOTION by defendant for an order directing the clerk to tax the defendant's costs, and that the amount thereof be set off against the same amount of plaintiff's costs.

C. M. Allen, for motion.

Geo. D. Forsythe, opposed.

ANGLE, J.-The complaint contains but one count, and is in ejectment to recover two separate parcels of land, separately described in the count, and as to both parcels the plaintiff's right to recover was put in issue by the answer. The verdict of the jury was in favor of the plaintiff as to one parcel, and in favor of the defendant as to the other parcel. The plaintiff has perfected judgment in his favor for the recovery of the parcel found for him and for his costs against defendant, and the clerk has refused to tax defendant's costs against plaintiff. The question is as to the construction of section 3234 of the Code of Civil Procedure, which provides that when the complaint sets forth separately two causes of action upon which issues of fact are joined, if the plaintiff recover upon one or more of the issues, and the defendant recover upon the other or others, each party is entitled to costs against the adverse

Coon agt. Dicfendorf.

party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs. This provision, as far as the present question is concerned, is substantially the same as the provisions of the Revised Statutes (Ackerman agt. De Lude, 20 Weekly Dig., 544), and the provisions of the Revised Statutes were construed in Seymour agt. Billings (12 Wend., 285), in which it was held that, as the law stood before the Revised Statutes, where the declaration in replevin contained only one count for a variety of articles, and a plea of property was interposed by the defendant, and the jury found the property of a portion of the articles to be in the plaintiff, and that the value thereof exceeded fifty dollars, and the property of the residue of the articles in the defendant, and that the value thereof was ninety dollars, each party was entitled to costs against the other. On page 287 the court say: "The jury under the form of pleading having found the title of a part of the property replevied by the plaintiff to have been in the defendant, and the title of the residue in the plaintiff, effect must be given to the verdict in the same manner as though the declaration had contained two distinct counts for the respective parcels, or the defendant had averred for each respectively. Each party then, in this case, has a substantial issue found in his favor, and the general rule in the action of replevin seems to be that each party shall have costs of the issues on which he succeeds. Both are considered as plaintiff's or actors (Wright agt. Williams, 2 Wend., 642). But under the Revised Statutes this is made the general rule

S., 617, sec. 26).

applicable to all actions” (2 R.

In Martin agt. Martin (3 How., 203), the special term declined to consider Seymour agt. Billings as authority beyond the action of replevin, and held it inapplicable to ejectment. In Stoddard agt. Clarke (9 Abb. [N. S.], 314), the court of appeals say that the court held in Seymour agt. Billings that, "the declaration although it contained only one count for a variety of articles being regarded, for the purposes of costs as

Flanagan agt. Hollingsworth.

containing two distinct counts for the respective parcels of property."

In Ackerman agt. De Lude (supra), the general term in this department in construing section 3224 followed Seymour agt. Billings, and went upon a principle of construction applicable with stronger reason to such a count in ejectment as in the case before me, than to a count in replevin for different articles of personal property. The above quotation from Seymour agt. Billings shows that the court was of opinion. that the Revised Statutes had made the rule theretofore prevailing in replevin applicable in all actions. True, this part of the opinion is obiter, for the court had already decided in that case that the defendant was entitled to costs as the law stood before the Revised Statutes, and it was immaterial whether the statute had extended the same rule to other cases.

My conclusion is, that under section 3234 of the Code the same rule prevails in ejectment as in replevin, and I am therefore constrained not to follow Martin agt. Martin. The motion is granted without costs.

CITY COURT OF BROOKLYN.

WILLIAM FLANAGAN, respondent, agt. BENJAMIN C. HOLLINGSWORTH and MATHEW RYAN, appellant.

Deed

· Covenant against nuisances — Construction of.

A livery stable would not be offensive to a neighborhood within the meaning of a covenant not to erect any building for or to carry on upon certain premises certain enumerated trades, cow stables or hog pens, any other dangerous, noxious, unwholesome or offensive establishment, trade or calling, or business whatsoever." The word "cow" before "stables" limited the establishments prohibited of the same class, and the words "other," &c., do not include stables where domestic animals are to be kept.

General Term, October, 1885

Before CLEMENT and VAN WYск, JJ.

Flanagan agt Hollingsworth.

Erastus New and N. C. Moak, for plaintiff.

J. T. Moreau and Morris & Pearsall, for defendants.

CLEMENT, J. The plaintiff and the defendant Hollingsworth each own real property in the same vicinity in Brooklyn, and derive their several titles from a common source, and both parcels are subject to covenants against nuisances which were made in the deeds given by the parties who owned the common title. The covenant reads as follows:

"I, the party of the second part, in the within indenture named, in consideration thereof and of the sum of one dollar to me in hand paid by the said party of the first part in said indenture named, do for myself, my heirs and assigns, hereby covenant to and with the aforesaid party of the first part, her heirs, executors and administrators, that neither I nor my heirs or assigns shall or will at any time hereafter erect, permit or allow to be erected or carried on upon the premises described and granted in said indenture, or any part thereof, any brewery, distillery, slaughter-house, smith shop, furnace, steam engine, brass foundry, nail or other iron factory, sugar, bakery, cow stable, hog pens, or any soap, candle, oil, starch, varnish, vitriol, glue, ink, turpentine or lamp-black factory, or any factory or establishment for the tanning, dressing or preparing of skins, hides, or leather of any other dangerous, noxious, unwholesome or offensive establishment, trade or calling or business whatsoever."

The defendants were about to erect on the lots owned by Hollingsworth a livery stable, and thereupon plaintiff brought this action to restrain its construction. The court at special term held that a livery stable would be offensive to the neighborhood within the meaning of the mutual covenants, and granted a perpetual injunction restraining the defendants from the erection of the stable or from using any building hereafter erected on said premises for such a purpose. Assuming that the plaintiff can take the benefit of the covenant and enforce its provisions, and also assuming as