App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. expressly required to do. But we think the duty imposed upon him required discretion, and a high degree of judgment, and not being a plain ministerial duty, but judicial or quasi-judicial in character, and having already performed the duty assigned him to the best of his judgment, we think mandamus will not lie against him." Moreover, if we should command the board of education to rescind the by-laws and resolutions, the petitioner, Miss Baum, would only be able to say that she was entitled to promotion, but there is no provision of the revised charter by which it can be said that she is to be preferred for promotion over hundreds of teachers who hold license grade A under the old system or license No. 2, its equivalent, in the new system. The board has made the two by-laws to assist in the selection of persons from the eligible list for promotion, and I am not prepared to say that they are unreasonable. For these reasons I think that the order should be affirmed. Order reversed, without costs, and motion granted to the extent indicated in opinion of WOODWARD, J. JOSEPH VOLLKOMMER, Respondent, v. JAMES A. CODY and Others, ANDREW R. BAIRD, Respondent, v. JAMES A. CODY and Others, A single objection, ruling and exception covers all like evidence — exception to evidence going to the merits in an equity case — - a party cannot impeach his own witness. A single objection, ruling and exception upon a question of evidence is sufficient, although not repeated, to cover all of the same class of evidence introduced upon the trial. SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. An exception to a ruling upon a question of evidence, which goes to the merits of the case, cannot be disregarded, even though the action be one in equity. Upon the trial of a judgment creditor's action, the plaintiff called certain of the defendants as witnesses and offered in evidence their depositions taken in supplementary proceedings. The court admitted the depositions as evidence of admissions by the parties making them, but, in disposing of the case, treated the depositions as evidence competent to impeach the testimony given by the parties making them after their depositions had been placed in evidence. Held, that the depositions were not competent for the purpose for which they were considered by the court. APPEAL by the defendants, James A. Cody and others, comprising the firm of Cody Brothers, and others, in each of the aboveentitled actions, from a judgment of the Supreme Court, in each of the above-entitled actions, in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of November, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term. Abram J. Rose [Alfred C. Petté with him on the brief], for the appellants. Henry H. Sawyer, for the respondents Baird and Vollkommer. JENKS, J.: These are judgment creditors' actions to reach money in the hands of the city of New York due to certain of the defendants on a judgment recovered by them against the city, which was assigned by them to the testator, whose executors are other defendants. The ground of the action is that said assignment was made to hinder, delay and defraud creditors. The Special Term gave judgment for the plaintiff. The plaintiff called the defendant Elizabeth L. Cody as his witness, and offered in evidence her deposition taken in certain third party proceedings. This was objected to as incompetent and upon other specified grounds. The learned counsel for the plaintiff then stated that it was offered only against the defendant Elizabeth L. Cody as primary evidence of her admissions, and the court, under exception, admitted the deposition solely on that ground. The plaintiff also offered in evidence an affidavit of the witness made in this case, which was received under objection and exception as to its competency and materiality as against all of the defendants save the city of New York. Thereafter, without App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. objection or exception, the examinations of the defendants James A. Cody and William J. Cody in supplementary proceedings were read in evidence. The first objection, ruling and exception were sufficient to cover all of the same class of evidence without cumbering the record with further protests. (Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Carlson v. Winterson, 147 id. 652; Lyons v. N. Y. Elevated R. R. Co., 26 App. Div. 57.) After the summing up by the respective counsel, the learned court, in directing judgment, said: "It is unfortunate in this case that there are many contradictions by the witness, Elizabeth Cody, and by her brothers in comparison with the deposition in the supplementary proceedings." Thus it appears that the learned court considered the deposition as contradicting evidence which tended to shake its belief in the credibility of the witnesses. I am of opinion that such evidence was not competent for that purpose. (Becker v. Koch, 104 N. Y. 394, 401; Craft v. Brandow, 61 App. Div. 247.) The learned counsel for the respondents argues that admissions are always competent, and then states that the position of the appellants is that the court should have refused to receive the depositions. Not so. The point of the appellants is that the learned court did not consider the testimony as admissions, but as evidence which was competent to impeach the witness called by the plaintiff. The learned counsel for the respondents also argues that as the depositions were admitted before the testimony of each was given, they could not be considered as offered in contradiction, and if, after the witnesses had testified, the admissions had further force, in the mind of the court, of impeaching their credibility, that should not alter the rule as to the admissibility. The answer is that the learned counsel for the defendants protested by his objection, so far as he could, at the time the testimony was offered in evidence, and the court, irrespective of the mere order of proof, finally regarded the testimony as competent to impeach the witness. Although this is an equity case, this exception goes to the merits and, therefore, it cannot be disregarded. (Townsend v. Bell, 167 N. Y. 462.) In view of our conclusion that there must be a new trial, it is not necessary to discuss the other questions of law presented, as they are not likely to arise upon the second trial. SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. The judgment should be reversed and a new trial granted, costs to abide the final award of costs. GOODRICH, P. J., BARTLETT, WOODWARD and HOOKER, JJ., concurred. Judgment reversed and new trial granted, costs to abide the final award of costs. GEORGE B. JOHNSTON, Respondent, v. LONG ISLAND INVESTMENT AND IMPROVEMENT COMPANY, Appellant. Deed - the words "beginning at the intersection of the easterly line of Main Road or Turnpike, now known as Flatbush Avenue," construed - the actual ownership should not control the construction — buildings held not to show intention as to street line-words "subject to encroachments as shown on survey" construed. The owner of a tract of land who had acquired title thereto under a deed which described the premises as "beginning at a point in the easterly side of the Flatbush Turnpike Road" entered into a contract for the sale of the premises which described them as "beginning at the intersection of the easterly line of Main Road or Turnpike, now known as Flatbush Avenue," and provided that the premises should be conveyed "subject to encroachments as shown on survey." Upon the trial of an action brought by the vendee to compel the specific performance of the contract, it appeared that the main road or turnpike was merged in Flatbush avenue and that the easterly side of Flatbush avenue was eight feet east of the easterly line of the old main road or turnpike. The court found that the vendor had no title to such eight feet. At the time the contract was executed there were a number of buildings on the premises which were on the easterly line of Flatbush avenue as laid out. The distance between the buildings and the curb was twenty-one feet. The encroachment shown on the survey was the overlap of a frame building situated on land belonging to the vendor adjoining that contracted to be conveyed. The encroachment was, for a distance of fifteen feet, about four feet and was patent and visible, and the vendee knew of its existence. It was the ultimate purpose of the vendor to remove the frame building. The court granted a decree of specific performance, which required the vendor to execute a conveyance describing the premises as 'Beginning at the intersection of the easterly side of Flatbush Avenue as now laid out,” and in effect determined that the deed should not provide that the conveyance was subject to the encroachment shown upon the survey, but it did give to the vendor the right to remove the encroaching building within a reasonable time. 66 Held, that the evidence did not justify the court in directing the execution of a deed in the form prescribed by the decree. App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. Semble, that the phrase now known as Flatbush Avenue" was inserted in the contract as a further and more familiar description of the road or turnpike, and that the starting point contemplated by the contract was the easterly line of the old main road. Semble, that the fact that the vendor did not own to such easterly line was not sufficient to require another construction. Semble, that the situation of the buildings on the premises contracted to be conveyed was not sufficient to establish that a different boundary line was intended. Semble, that by the reference in the contract to the encroachment shown by the survey the parties did not contemplate an exception or reservation of the fee of the land covered by the encroachment, but that they did intend that the encroachment should be permitted to continue until such time as the vendor chose to remove the encroaching structure. APPEAL by the defendant, the Long Island Investment and Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of December, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, decreeing the specific performance of a contract for the sale of real estate. A. G. N. Vermilya, for the appellant. Francis E. Dana, for the respondent. JENKS, J.: The plaintiff has judgment for specific performance by the vendor of real estate. The learned Special Term has interpreted the contract as it was written. The decree requires a deed from the vendor which apparently does not conform to the contract in two respects: (1) A part of the description in the contract reads: "Beginning at the intersection of the easterly line of Main Road or Turnpike, now known as Flatbush Avenue," and (2) the contract provides: "Also subject to encroachments as shown on survey." The deed required by the decree reads: "Beginning at the intersection of the easterly side of Flatbush Avenue as now laid out," and the decree in effect determines that the deed cannot provide that the conveyance is subject to an encroachment shown on the survey. The main road or turnpike is merged in Flatbush avenue as now laid out, and such avenue as so laid out is widened so as to extend |