THIRD DEPARTMENT, JUNE, 1904.

[Vol. 96. adjoining owners for the purpose of increasing such width, for the reason that that would be an invasion of constitutional rights, as it would be the taking of private property for public use without just compensation (Const. [1846] art. 1, § 6). Manifestly, too, under a statute giving to the board of trustees of the village the power to locate and define the boundary lines of the streets in the village, such board would have no power to take private property for public use; nor would the board, under such a statute, have the power to locate and define the boundaries of a highway which was laid out to be three rods in width in such a way as to show that the boundaries on each side should be sixty-six feet apart, and in that way encroach upon the title of the adjoining owners. Hence we have examined this record with a view of ascertaining from it if there was sufficient evidence to justify a finding that the owners of the abutting property where the building in question is located had dedicated the land to the public as a street and the public had accepted it as such, or whether there is any evidence that would justify a conclusion that, subsequent to the passage of the ordinance of 1875, and prior to the erection of the building in question, the public, by user during all that period, which is upwards of twenty years, had acquired a prescriptive right to the entire width described in the ordinance as a public street.

The fact that the ordinance was passed might be regarded as a sufficient public acceptance of the property in dispute for street purposes, but that would not be sufficient unless there had also been a dedication of the land by the owner to the public as a street. The only evidence to support that view is found in the fact that during all that time there were no fences maintained by the owners of the property to divide it from the street, and it was open at all times and unobstructed by any structure until the erection of the building in question. The mere fact that it was unfenced by the owners is not sufficient evidence to show an intention on the part of the owners to dedicate the land to the public use as a highway. (Rozell v. Andrews, 103 N. Y. 150; Matter of Hand Street, 52 Hun, 206, 211; Strong v. City of Brooklyn, 68 N. Y. 1, 16; Flack v. Village of Green Island, 122 id. 107.)

While there have been no fences and nothing to interfere with the public use of the property in question as a street, there is no

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THIRD DEPARTMENT, JUNE, 1904.

proof that it has in fact been so used at any time during the twenty years prior to the erection of the building thereon by the plaintiff, and such proof would be essential to support a title in the public by prescription, nor is there any proof that the location in question has ever been worked or occupied in any way by the public as a street.

Every element seems to be wanting to show that the street has ever been lawfully widened since it was originally laid out as a highway, three rods wide, in 1829.

The judgment of the County Court and of the Justice's Court should be reversed, with costs to the appellant in this court and in the County Court.

All concurred.

Judgment of the County Court and of the Justice's Court reversed. with costs to appellant in this court and in the County Court.

ADELBERT G. SERGENT, Respondent, v. THE LIVERPOOL AND LONDON and Globe InsuRANCE COMPANY, Appellant.

Rule that a third verdict for the same party will not be set aside — when it does not apply.

The principle that where a case has been tried three times before a jury, and upon each occasion the jury have rendered a verdict in favor of the same party, the appellate court will not disturb the third verdict, has no application to a case where the verdict has no evidence at all to support it.

APPEAL by the defendant, The Liverpool and London and Globe Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 25th day of July, 1903, upon the verdict of a jury; also from an order entered in said clerk's office on the 5th day of December, 1903, denying the defendant's motion for a new trial made upon the minutes, and also from an order entered in said clerk's office on the 25th day of July, 1903, granting the plaintiff an extra allowance of costs.

Charles D. Thomas, for the appellant.

Andrew G. Washbon, for the respondent.

CHESTER, J.:

THIRD DEPARTMENT, JUNE, 1904.

[Vol. 96.

Under the decision of this case when it was here upon a former appeal (66 App. Div. 46), I fail to see how the judgment now appealed from can be affirmed, for the reason that I am unable to find any substantial difference in the facts in this record from those recited in the opinion upon that appeal. There it was held that where the agent had testified that he had no knowledge or information at the time he issued the policy that the building insured was erected upon leased land, the jury had no right to find, in the absence of evidence contradicting the agent's testimony, that he had any such knowledge. It appeared there, as here, that the plaintiff swore that he told the agent, upwards of a year before the policy in question was issued, and many months before he was the agent of this defendant, that the building stood upon leased ground, but the only evidence upon this trial which it is claimed shows, or tends to show, that he had any such knowledge at the time he issued the policy is that, in an interview between the agent and the plaintiff and his counsel, in May, 1893, shortly before the first trial of the action, the agent said, in substance, that the policy in question was the first one he had put in this company, and whenever he insured a building that stood on leased land now he put it in the policy; that if he had put it in this policy the company would have been responsible and the lawsuit saved. This was said after the answer was served and after the agent had been fully advised that the building was on leased land. There is no pretense that the agent said at that time that he did or did not know that this building was upon leased ground at the time he issued the policy. About all that can be claimed for the new evidence is that the agent admitted that when he knew a building was on leased land he mentioned it in the policy. This evidence is not at all inconsistent with the agent's claim that he did not know. The burden was on the plaintiff to show that he did, and that burden is not satisfied by such evidence. When it is borne in mind that the only information which Thomas, the agent, had, according to the plaintiff's claim, concerning the property being upon leased ground, was communicated to him over a year before the policy was issued, and long before Thomas had been commissioned as agent of the defendant, I fail to see, in the face of his denial that he had such knowledge at the time he issued

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THIRD DEPARTMENT, JUNE, 1904.

the policy, anything in the new evidence from which the jury could properly find that he in fact had it.

The action is defended also on the ground that the building had been vacant and unoccupied for more than ten days previous to the fire, without a written consent to that effect indorsed on the policy, and that a condition of the policy made it void in such case. It was claimed on the part of the plaintiff that at the same interview in which he told the agent that the building was on leased ground, he also told him that this factory was not running at that time, and that it only run as he could make satisfactory arrangements with the patrons. It must be presumed that the jury have found that the plaintiff did so tell Thomas, but even so, that conversation referred to the date of it, that is, that the factory was not running at the time of the interview and ran only as he could make satisfactory arrangements with the patrons. There is nothing in the proof to show that that statement referred in any way to the building being vacant at the time of the issuing of the policy, over a year thereafter, or at the time of the fire; nor is there a particle of evidence in the case from which the jury could find that Thomas knew that the building was vacant or unoccupied, and had been for more than ten days prior to the fire, or from which the jury could have found that the condition of the policy in that respect was waived.

The plaintiff refers to the case of Dorwin v. Westbrook (11 App. Div. 394) and invokes the principle that where a case has been tried three times and upon each occasion with the same result, the appellate court will not disturb the verdict as against the weight of evidence, but will allow it to stand and affirm the judgment. But that principle can have no force as applied to a case where the verdict has no evidence at all to support it.

I think, following the decision upon the former appeal, that this judgment and the orders appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

THIRD DEPARTMENT, JUNE, 1904.

[Vol. 96.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. NORTH AMERICAN TRUST COMPANY, Relator, v. ERASTUS C. KNIGHT, as Comptroller of the State of New York, Respondent.

Taxation of a corporation — the return of money advanced by stockholders to increase the surplus is not considered a dividend.

The stockholders of a trust company in 1899 paid into the treasury thereof the sum of $500,000 for the purpose of increasing its surplus. Subsequently, in 1900, the said trust company was merged in another trust company, and for the purpose of equalizing the surplus and undivided profits of the two companies $200,000 was returned to the stockholders of the first-mentioned trust company out of the $500,000 contributed by them.

Held, that the return of such $200,000 did not constitute a dividend within the meaning of that term as used in section 182 of the Tax Law (Laws of 1896, chap. 908).

CERTIORARI issued out of the Supreme Court and attested on the 2d day of August, 1901, directed to Erastus C. Knight, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the refusal to revise and readjust an account for taxes against the relator for the year ending October 31, 1900.

The relator is a domestic corporation with a paid-up capital stock of $2,000,000. On January 1 and July 1, 1900, it paid dividends of two and one-half per centum on such capital, aggregating five per centum for the year. In August and September, 1899, its stockholders paid into its treasury in cash the sum of $500,000 for the purpose of having that sum added to the surplus of the company. Thereafter, and on May 1, 1900, there was a merger between the relator and the International Banking and Trust Company. The company after the merger continued the business in the name of the relator the same as before. Prior to such merger there was an audit of the accounts and books of the relator which showed that its surplus and undivided profits were greater in proportion to its capital than the surplus and undivided profits of the International Banking and Trust Company. For the purpose of making an equalization of the proportion, and about May 1, 1900, $200,000 was returned by the relator to its stockholders. The Comptroller