stock in a private corporation and to issue its bonds to pay therefor, and that the bonds so issued were void. Town of Guilford v. Suprs of Chenango Co. 13 N. Y., 143, distinguished.

The judge, at Special Term, found that the objects and purposes of the corporation, in aid of which the bonds were issued, were not exclusively and strictly of a private nature, but to some extent parJudgment of General term, reversing took of a public character, and were suffi-judgment of Special Term, and directing ciently broad and extended to include a judgment for defendant, affirmed. public use. He then explained how this Opinion by Folger, J. general finding was reached by particulars which he gave. Defendant excepted to this finding.


The legislative power of taxation, so far as the purposes for which it may be exercised, is not unlimited, and the

courts are not debarred from scrutinizing its action.

The legislature is the primary authority to inquire what is a proper purpose for the application of money raised by taxation, and the necessity of taxation to subserve it, and it must appear clearly that it has erred before the courts can interfere.

cers and agents, and even if the inhabitants of defendant were estopped by the acts proved, the defendant would not be affected thereby; it is a political entity, separate and apart from the inhabitants. of the territory within its corporate bounds. 12 Wall. 349; Alleghany City v. McClastan, 14 Penn. St. 81, disapproved.

Held, That the general finding was a CONTEMPT. EVASION OF INJUNC conclusion of law from the particulars given, and as the evidence does not afford any ground for the finding, it was erro

Where no legal, moral or equitable claim exists, the legislature cannot impose or delegate to a municipal corporation the power to impose a tax for a private purpose, or directly to replace in the treasury moneys bestowed by it upon a private purpose. It was claimed that as interest had been paid upon the bonds by defendant, and a special tax had been voted by the taxable inhabitants to pay this interest, defendant was estopped from denying their validity.



The Mayor, &c., of New Jersey, respts.' v. The New Jersey and Staten Island Ferry Co. et al., applts.

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This action was brought to restrain the New Jersey and Staten Island Ferry Company from running a ferry from New York city to Staten Island without a license from plaintiffs, and to restrain the use of plaintiffs' wharf property for the purposes of such ferry. The day the suit was commenced (May 21, 1875) a preliminary injunction was granted restraining the use of the wharf for ferry purposes, and an order

Held, That this did not work an estoppel; that the issue of the bonds being beyond the scope of corporate power, defendant could not be debarred from raising that objection by any subsequent conduct of its offi- to show cause why such injunction should

not be continued during the pendency of guilty of violating them as well by aiding.
the action. A motion was also made to abetting and countenancing others in vio-
enjoin the running of the ferry, These lating them as by doing it directly.
motions were granted June 15, 1875. An The defendants claimed, on appeal, that
opinion was written which was read that interrogatories should have been filed by
morning by the defendants' attorney. It plaintiffs before any final adjudication upon
appeared the next morning in several news- the alleged contempt. The whole matter
papers, and certified copies of the formal of the violation of the injunction order was
order of the court were served on the de- submitted to the court upon the affidavits.
fendants' attorney, and upon the pilot and No question was submitted as to the regu
engineer of the steamboat D. R. Martin, larity of the practice.
and on June 17th on P., the president of
the company. After May 20, 1875, the
point of departure of the D. R. Martin was
changed, but she still continued to be used
as a ferry boat, with the same master and
time table, and still occupied plaintiffs
wharf at night time. On June 16th, at
noon, a bill of sale was executed by the
company to its president of the D. R. Mar-
tin for the consideration of one dollar, and
June 19th a bill of sale was executed by
the president to one B., the boat having
continued to run as before. An order was
granted for the company and its president SUPREME COURT OF ERRORS, CONNEC-
to show cause why they should not be pun-
ished for contempt of court. The motion
was granted and the company was fined for
violating the first order, and the president
ordered to be imprisoned for violating both



Chas. W. Church v. Frederick C. Steele.

Lyman Tremain, for respts.
Amasa J. Parker, for applts.

Held, No error. That the company and its officers were bound to obey the orders; that they were not void even if irregular (2 Green Ch. 456; 9 N. J. 263); that the company could be fined for violating the injunction; that the power to fine for disobeying its orders in such cases is inherent in a court of equity and is regulated by statute (2 R. S. 534; 1 2Abb. Pr. 171.)

Also Held, That the court was warranted from all the circumstances in finding that the sales of the ferry boat were not in good faith, and were intended as mere evasions of the orders of the court. That injunction orders must be honestly and fairly obeyed, and persons bound to obey them may be

Held, That the right to the interrogatories
was waived, but that where there was an
order to show cause it was not necessary to
file interrogatories (1 Duer, 512; 5 id. 629;
14 Abb. Pr. 166; 37 N. J. 235; 1 Abb.
Ct. Apps. Dec. 238).

Order of General Term affirming order
of court below affirmed.
O-inion by Earl, J.

Decided February, 1875.
Where in exchange of real estate on
the basis of an appraised amount
per foot, there is a mutual mistake
in the amount conveyed by one to the
other, the injured party is entitled to
recover at the appraised rate for the

The same can be recovered in an action
of assumpsit for lands sold.

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front foot, amounting to $7,641, the defendant paying plaintiff the difference, viz: $593.

recover damages for the whole time they are untenable; he is not limited to the time within which such repairs might have been made, inasmuch as he was not bound, although he had the right to make them.

This action was brought by plaintiff to recover damages for the breach by defendant, his lessor, of various covenants in a


For the purpose of ascertaining the money balance the defendant applied this appraisal to 280 feet. But subsequent measurement showed that it could have been applied to 265 feet only. This mutual mistake produced an erroneous result, the money balance paid was too small by the sum of $486.

Afterwards the plaintiff, by measurement, ascertained that the lot conveyed to him by defendant was only 265 feet instead of 283 feet, defendant at the time of the exchange owning no more. Defendant had undertaken to pay plaintiff $8,150, partly by means lease of certain premises in New York of this land at the agreed price of city. The lease provided that defendant $27 per front foot, and partly in money. should complete a new building which he was to erect and give possession to plaintiff of the five stories above the ground floor on or before September 1, 1871; the defendant failed to do this. It appeared upon the trial that plaintiff, when the lease was executed, occupied the adjacent premises and a portion of the demised pemises for hotel purposes, and that he had his furniture removed and stored while the new building was being erected.

The interest of the parties will remain unfulfilled until the defendant supplies this deficiency.

Held, 2. The second count in the declaration is sufficient to support a judgment for the sum of $486, representing the error resulting from the mutual mistake of the parties. As to sufficiency of first count no opinion expressed.

Pardee, J.

The judge upon the trial ruled that plaintiff was entitled to recover for the breach of the covenant, the rental value of the use of the rooms in the new building for hotel purposes during the time he was deprived of their use, by the defendant's default, and instructed the jury, that as to such rooms as plaintiff had furniture for, he was entitled to damages based upon the value of their use as furnished rooms, and refused to charge that plaintiff could only recover the value of the use of the rooms

unfurnished, or as defendant was to deunfurnished, or as defendant was to de

liver them.


N. Y. COURT OF APPEALS. Hoxter, resp't. v. Knox, appl't. Decided January 18, 1876. In an action for breach of the covenants of a lease whereby the lessor covenanted to erect and give possession of the demised premises which were to be used for hotel purposes at a specified time, and for which the lessee then owned and had on storage furniture sufficient to fill, and the lessor failed to give possession, the lessee is entitled to damages based upon the value of the use of the

the rental value of the rooms in the new


premises as furnished for hotel pur-building during the time he was deprived Under a lease providing that repairing of them through defendant's default based shall be done by the lessor, the lessee, upon a consideration of the use to which where the premises become untenant- they were to be applied subjected defendant able by reason of lessor's neglect, may to no greater liability than it may fairly be

Samuel Hand & Stephen A. Walker, for resp't.

Wm. McDermot for appl't.

Held, No error. That as both parties contemplated that the premises should be used for hotel purposes, an allowance of

supposed he intended to assume, and that the jury were properly instructed, that plaintiff was entitled to recover the value of the use of furnished rooms so far as he was prepared to furnish them with the furniture stored; that the loss of the use of the furniture from delay in completing the new building, was the natural result of defendant's failure to perform his covenant, and it might be justly presumed to have been contemplated by defendant when the lease was made. 35 N. Y. 269.

Defendant also covenanted in the lease to make certain specified alterations and repairs to a part of the premises, which included repairs of broken ceilings and of the roof so as to make it water tight. After the time when the repairs were to have been completed defendant had a balustrade removed from the building, and in doing this holes were made in the tin covering of the roof through which water afterwards penetrated, and rendered the rooms in the upper story uninhabitable, and caused the ceilings to crack and break so that quite extensive repairs were necessary. Plaintiff repeatedly notified defendant that these repairs were needed, and after waiting six weeks made them himself. Defendant asked the court to charge the jury that plaintiff could only recover for the use of the rooms such time as it would necessarily take to repair them, and that if plaintiff knew of the defect, he was bound to have it repaired as soon as it could reasonably be done. The court refused both of these requests.

Held, No error; that plaintiff when defendant failed to make the repairs had a right, but was not bound to make them.

35 N. Y. 269.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Andrews, J.


N. Y. COURT OF APPEALS. White's Bank of Buffalo, v. Nichols. Decided February 1, 1876.

A grantee claiming under a deed describing the land as commencing at the intersection of the exterior lines of two streets takes only to such exterior lines; the point thus fixed is as controlling as any monument would have been, and necessarily excludes the soil of the street.

Where the grant contains no evidence that the parties contemplated a shifting boundary, the fact that the street is subsequently narrowed so as to remove its exterior line towards its centre, does not enlarge the area of the lots granted; their lines are fixed fixed permanently, and cannot be changed to conform to any altered condition or circumstances. The presumption is that the grantor does not intend to retain the fee of the soil of the street, but such presumption may be overcome by the use of any terms in describing the premises granted which may indicate an intent not to convey. What will not exclude from the opera tion of a grant the soil of the street, stated.

Nothing short of an intention to abandon an easement will operate to extin guish it, unless other persons have been led by the acts of the owners of the easement to treat the servient estate as if free from the servitude. This was an action of ejectment to recover possession of a strip of land twenty feet wide, on Garden street, in the city of Buffalo Both parties appealed from the claiming to be entitled to the sole and exjudgment of the Supreme Court, each clusive possesssion and beneficial enjoyment of the premises. The court below adjudged the plaintiff to be the owner in fee, and the defendant to be entitled to an easement in the premises, to wit, a right of way over it. The parties from

It is not sufficient to exclude from the

whom plaintiff and defendant claimed to derive title, owned a large tract of land in the city of Buffalo, which they divided into lots, making a map thereof, upon which was designated a street called Gar-operation of the grant the soil of the street den street, sixty-three feet wide, and con- or stream, that it was made with reference veyed several lots to different grantees, with to a plan annexed, the measuring or colreference to the map. The grant under oring of which would exclude it, or by which defendant claimed title described lines and instruments that would only the premises as commencing at the inter- bring the premises to the exterior line of section of the exterior lines of two streets, the highway, or that they are bounded of which Garden street was one. In Feb- generally by the line of the highway or ruary, 1869 the city ordered Garden street along it. Although the highway is in to be staked out, and its boundaries re- one sense a monument, it is regarded as a corded, and this was done, showing it as line, and the centre is regarded as the a sixty-three feet street. In July and true boundary until by apt words the inAugust, 1869, the street was duly con- tent to make the exterior line the boundtracted by the city to the width of twen-ary is shown 10 C. B. N. S., 400; 50 ty-three feet, leaving the centre line as N. Y., 694; 36 id., 120; 23 id., 61; 2 before. Defendant claimed to own the Wall, 57. fee to the centre of the street, subject to an easement in favor of the grantees of the other portions of the tract and the public in the street as laid down on the map, and that he owned the twenty feet taken from the width of the street, di

vested of the easement.

S. S. Rogers for respts.
J. A. Allen for appt.

terms in describing the premises granted, which clearly indicate an intent not to convey the soil of the street or stream.

Also Held, That the lines of defendant's

grant are fixed and permanent, being established in reference to the circumstances then existing, and cannot be changed to conform to any altered condition or circumstances, in the absence of evidence in the grant that the parties contemplated a shifting boundary, or any change in the lines or increase of the area of the lot granted, or to provide for any change in the line or width of the street,

Held, That the description in the deed under which the defendant claimed ne-as the same should be adopted or used cessarily excluded the soil of the street; that the point of starting, in the description, is as controlling as any monument would have been, and must govern the other parts of the description, and the lines of the granted premises must conform to the point thus designated, so as to connect thereat, and therefore the judgment was correct.

by the public. 31 Conn., 165; 18 Wis., 35; 2 Wall, 57; 52 Me., 566; 1 Whart., 323; 58 N. Y., 437, and that therefore the change in the street did not extend defendant's title to the new exterior line.

It appears that before this action was brought defendant had fenced in the locus in quo, and plaintiff claimed that by so had abandoned the easement. doing, and by claiming to own the fee, he

No particular words or form of expression are necessary to restrict a grant to the exterior line of a street or margin of Held, That this act did not indicate or a stream, but while the presumption is tend to prove an intent to abandon the that the grantor does not intend to retain easement. 22 N. Y., 217; 100 Mass. 491; the fee of the soil within the lines of the 7 Exch, 838; 14 M. & W., 789; 3 C. B. street or under the water, such presump-N. S, 120. tion may be overcome by the use of any

Nothing short of an intention to aban

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