Porter v. Waring.

saw that his property had cost a great deal of money and there was a common negotiation in the interest of the creditors generally, as well as of Vilmar, to see if he could not give security on his property and go on with business.

I have examined the other grounds on which the assignment is claimed to have been fraudulent, but do not think they are valid.

The defendant should have judgment dismissing the complaint with costs and no allowance.

There will be an appeal.

PORTER v. WARING.

New York Court of Appeals; March, 1877.

SIDEWALKS.

EVIDENCE.-JUDICIAL NOTICE.-PROOF OF MUNICIPAL

ORDINANCES.-APPEAL.

The word "sidewalk" has no strict legal interpretation, and its meaning in a covenant must be governed by evidence as to the limits and extent of the sidewalk in question, in the street where it is located.

The court can not properly take judicial notice of the width of streets or of sidewalks.* Nor of any fact connected with the same not generally understood.

Nor can the court take judicial notice of the ordinances of a muni

cipal corporation establishing the sidewalks, and defining their width. The doctrine of judicial notice does not include knowledge

* But, perhaps, where, as in the case of certain highways, the width is fixed by law, the court, by taking notice of the law may, in the absence of evidence, presume a road to be of the lawfully required width. Lawton v. Commissioners of Highways, 2 Cai. 179; Cleveland . Cleveland, 12 Wend. 172; Peckham v. Henderson, 27 Barb. 207.

Porter v. Waring.

of facts so remote and indefinite as to require extrinsic evidence, and which are dependent upon municipal regulation, and the action of the legislative power of local corporate authorities.*

*The doctrine of judicial notice is stated in the books as a rule dispensing with proof, or with averment, or both, on certain subjects. In respect to public general statutes, or other general rules of law of the State within which the court is, there is no inconvenience in regarding it in this light. But with respect to all matters of fact, the foundation of the principle is essentially different, and its practical use both uncertain and precarious. The court is bound to take notice of the law; hence it is error not to do so. But in respect to nearly all matters of fact of which it may take notice, it is not bound to do so; and whether it will do so or not, depends partly on the nature of the subject, the issue, the apparent justice of the case, partly on the information of the court, and the means of information at hand, and partly on the judicial disposition. The language of the cases on the rule is very commonly misleading, in saying that the court is bound to take notice of such or such a fact, when all that is meant is that the court may do so, and in doing so complies with a sense of justice in the particular case. The cases in which the refusal of the court to take notice of matter of fact without proof, has been held error,

are rare.

In its application to matters of fact, the rule is rarely serviceable as a rule of trial evidence. Its practical value is in the law of appeal, not in the law of evidence. If from any reason evidence to support the judgment was lacking at the trial, or fails to appear adequately in the record, the appellate court may, and often will take notice of that which is generally known and ought to be so, or is of public and general concern, and has been duly and publicly authenticated in repositories of fact open to the world, especially if of an official, scientific, or historical nature. Where the trial court, without objection from either party, has thus drawn on the common stock of universal and unquestioned knowledge, and has proceeded to judgment in reliance thereon, in connection with the evidence in the cause, the appellate court will often judicially notice the existence of the fact thus assumed, especially if it is properly presented to their notice by counsel. But when objection is taken at the trial, and a party challenges proof of an essential fact, his adversary has usually no very strong ground for insisting on a finding in his favor without evidence. Still less can one who has failed for want of evidence, justly request the appellate court to reverse the judgment by taking notice on appeal of that which did not appear in proof on the trial.

Porter v. Waring.

Even if the court could take judicial notice of a municipal ordinance, they can not take judicial notice of matters of fact necessary to determine whether the case be one in which the ordinance applies.

The rule allowing new evidence to be admitted on appeal, is confined to record evidence read in support of a judgment.

Such evidence

can not be read for the purpose of effecting a reversal. The statute (L. 1832, chapter 158; 3 R. S. 6th Ed. 670, § 108)— allowing ordinances of the city of New York to be read in evidence, relates to their introduction upon a trial, and does not make them evidence on appeal.*

Appeal by plaintiff from a judgment at general term of the supreme court, affirming a judgment for the defendant.

The action was brought by Timothy D. Porter, to restrain William E. Waring from using a private stable, as constructed, upon the alleged ground of violation of a covenant in the deed conveying the lot on which the building was erected.

By the deed of conveyance, dated July 1, 1871, the defendant was to build a private stable upon the rear of the lot conveyed, of specified materials and plan of construction, and the deed contained these words: "there shall be no opening in the sidewalk in front of the stable."

The defendant erected upon the premises described a stable of the description expressed in the deed, leaving an area for ventilation which the plaintiff claims is in the sidewalk. This area forms the subject of the contention in this suit.

The stable was constructed and completed under

For numerous illustrations, see the cases collected in the United States Digest, title EVIDENCE, II.

*The act makes the ordinances so read, prima facie evidence only. Howell . Ruggles, 5 N. Y. 444. See also Logue v. Gillick, 1 E. D. Smith, 398; Kennedy v. Newman, 1 Sandf. 187; Code of Civil Procedure, § 941.

Porter. Waring.

the daily personal observation of the plaintiff, who resided, during the entire progress of the building, upon the next adjoining lot.

The only evidence that there was any sidewalk, or of its location, was in a certain diagram, put in as an exhibit, and in the testimony verifying the diagram, by which it appeared that the opening, or area complained of, was not in the sidewalk.

The cause was tried at special term. The court found that: "There is an open area in front of the stable; that "this opening is within the line of fence, adopted by the owners of all the lots, from the Third avenue to Lexington avenue;" and, that "no part of the opening is in the sidewalk;" and dismissed the complaint.

The plaintiff appealed to the general term, which affirmed the judgment below; and from that judgment he then appealed to this court.

Appellant printed at the end of his case on appeal, an extract from the ordinances of the city, and a certificate made by the superintendant of street improvements, stating the width of the street in question, which he desired to have considered by the court.

Theodore W. Dwight, for appellant.

Henry H. Anderson (Anderson & Young, attorneys), for respondent,-Urged, that this was not a case where record evidence could be adduced on appeal, under the rule in Jarvis v. Sewall, 40 Barb. 455; Rockwell v. Merwin, 45 N. Y. 168; Catlin v. Grissler, 57 Id. 373,cited Stilwell v. Carpenter, reported at p. 238 of this vol. That the court could not notice municipal ordinances People ex rel. Houston v. Mayor, 7 How. Pr. 81; Fauntleroy v. Hannibal, 1 Dillon, 118, note; Lenahan v. People, 3 Hun, 164, affi'd, 62 N. Y. 623.

MILLER, J. By the covenant in the deed from the plaintiff to the defendant, for the violation of which

Porter v. Waring.

this action was brought, the defendant had a right to erect a stable on the rear part of the lot conveyed to him; but it was provided that there should be no openings in the sidewalks in front of the stable. The judge before whom the case was tried found that there was an open area in front of the stable, and that no part of the opening was in the sidewalk.

It was not questioned upon the trial that there was an opening in front of the stable, some five feet wide; but no positive evidence was given by any person familiar with the lines of the street, or with the width or location of sidewalks therein, nor any ordinance or resolution of the common council, or survey made by a competent engineer or public official for the purpose of establishing the exact location of the sidewalk.

A diagram of the premises introduced in evidence showed that the opening was within a line of fence adopted by the owners of lots between Third and Lexington avenues, and that no part of the opening was within the limits of what was used or claimed as a portion of the sidewalk. It is true that there was some evidence for the plaintiff that the opening was in the sidewalk, but there was no direct proof to the effect that the fence erected by the owners was not on the line of the street, or that it was on the sidewalk, or that such portion of the street as the law required was not used for the purpose of a sidewalk. No witness was called to show any measurement or survey, or to prove that the sidewalk was encroached upon. The diagram was really the only proof of the actual location, and it showed that a uniform line had been established by the owners for fences, railings and areas, and that the stable was in the rear of that line several feet, with an area in front of the stable which came up to the sidewalk and did not encroach upon it. As the case stood the finding of the judge is fully sustained by the evidence. What constitutes a sidewalk in the sense in