Matter of Backer.

in a certain sense secured. They have a right to enforce the trust created for their benefit, and they have an equitable lien on the assigned estate (Story's Equity Juris. § 1244 [10th Ed.]). But where all the creditors without exception are secured to the same extent and in the same manner, so that no one of them has a preference over the others, I think that those provisions of the bankruptcy act discriminating between secured creditors and creditors unsecured have no sort of application. The object of those provisions is to secure equality, and so to marshal the effects of the debtor that a creditor, having the security of a special fund, shall look to that fund first, and exhaust it before he shall be permitted to join in the scramble for the general assets. All creditors of the Waitzfelders standing on a level, I think the composition was binding upon Nathan & Co. as well as on all others included in the statement produced by the Waitzfelders at the composition meeting, notwithstanding the fact that an assignment had been executed for their security. Henry Nathan & Co. have not, therefore, at the present time, the right to call upon the assignee for an accounting.

As I have denied the application of the assignee for the cancellation of his bond, and for the privilege of releasing the assigned estate to the survivors among the assignors, it is unnecessary to pass upon the duty of the assignee respecting the assets of Michael Waitzfelder, deceased.

VOL. II-25

Grinnell v. Kirtland.

GRINNELL v. KIRTLAND.

N. Y. Common Pleas; General Term, 1876.

DEDICATION.-HIGHWAY.-DEED BOUNDING ON STREET.

The question of dedication of land as a way is one of intent to be established by acts unequivocal and decisive in their character, and unmistakable in their purpose.*

This principle applies as between owners and purchasers, as well as in reference to the public.

The owner of land through which, as designated on a city map previously filed, ran an unopened street, along one half the width of which ran a lane, conveyed the lands on each side the street to different grantees, bounding the grants by the center of the street [so called], reserving to the grantor and the grantor's heirs, &c., and assigns, "a sufficient right of way through and along that part of the street hereby conveyed for all lawful pur poses, to use the same as a public road,"-and the parties to the deeds, and those claiming under them, for twenty years afterward, used the lane under the express reservation, and the street was never opened by the public authorities.

Held, that there was no dedication of the street.

The rule in Fonda v. Borst (2 Abb. Ct. App. Dec. 155), that a purchaser of a lot designated and laid out on a map, as bounded by a street, is not entitled to have such street opened until it has been accepted by the public,-applies to urban as well as to rural property.

Appeal by plaintiff from a judgment on a trial by the court.

This action was brought by Helen L. Grinnell against Frederick S. Kirtland, Charles H. Kerner and George B. Grinnell, to have One hundred and fiftysixth street, in the city of New York, kept open as a street in front of her lands to its full width of sixty feet, and to have the defendants, Kirtland and Kerner, directed to remove, or cause to be removed, all fences

*See note at the end of this case.

Grinnell v. Kirtland.

or obstructions placed by them thereon, to set back their fences to the southerly line of the street, and to refrain from in any way obstructing the southerly half of said street, &c.

In the year 1851, Mrs. Lucy Audubon was seized and possessed of certain lands in the city of New York, known as "Audubon Park," lying between the streets and avenues designated on the map or plan of said city previously made (dated about 1807), as One hundred and fifty-fifth and One hundred and fifty-seventh streets and the Eleventh and Twelfth avenues. On said map a strip of land, sixty feet in width, was laid out as One hundred and fifty-sixth street.

In the year last mentioned, Mrs. Audubon sold the lands fronting on One hundred and fifty-sixth street to different parties (her sons, Victor G. and John W.), making the center line of One hundred and fifty-sixth street the dividing line and the northerly and southerly boundary of the respective parcels thus conveyed. At the time of such sale there was a road or lane running through said lands, along that portion thereof which is shown on said map as the northerly part of One hundred and fifty-sixth street, and was used at the time of this action, substantially as the same was originally laid out for the convenience of the owners. of property on the line thereof, being from twenty-five to twenty-seven feet in breadth, and wide enough for a carriage.*

In the deeds given by Mrs. Audubon as aforesaid, each of the grantees therein named covenanted and agreed that their grantor, his heirs and assigns, should be and were entitled to a sufficient right of way

* This lane, at the time of this action, was enclosed on each side with a fence, the plaintiff's husband having been the first to put up a fence on her side, about fourteen years before, which four or five years before the trial he moved a few feet, encroaching upon the lane.

Grinnell v. Kirtland.

through and along One hundred and fifty-sixth street, thereby conveyed to said grantee, for all lawful purposes, to use the same as a public road.

The parties to this action, by sundry mesne conveyances, became the owners of the land in question, the plaintiff of the northerly, and the defendants of the southerly portion thereof.

The material part of the language of the deeds was as follows: in the description, these words, "Beginning at the line of high water mark on the Hudson river and the center of One hundred and fifty-sixth street; thence running easterly, along the center of One hundred and fifty-sixth street, to the center of Eleventh avenue; thence northerly along the center of the Eleventh avenue."

In the covenants, the following: "And the said party of the second part hereto, for himself, his heirs, executors, administrators and assigns, doth hereby covenant and agree to and with the said party of the second part, her heirs and assigns, that the said party of the first part, her heirs and assigns, shall be and are hereby entitled to a sufficient right of way through and along that part or portion of the Twelfth avenue and One hundred and fifty-sixth street, Eleventh avenue and One hundred and fifty-seventh street, hereby conveyed to said party of the second part, for all lawful purposes, to use the same as a public road."

The complaint alleged that the defendants Kirtland and Kerner had obstructed the southerly half of the strip designated as One hundred and fifty-sixth street, and taken possession of it so that it was impossible for plaintiff to use it as a street; and claimed that Lucy Audubon, by her deed, did, as between her and those claiming under her, dedicate the strip of land, to its full width, for a street; and prayed judgment accordingly.

The answer alleged that this part of One hundred

Grinnell v. Kirtland.

and fifty-sixth street, as laid out on the map, had been closed by the commissioners of streets, &c., under an act of 1860. That the only way dedicated was the private road of the width of about thirty feet, which was still open.

The cause was tried before LARREMORE, J., at special term, who found, as matter of fact, that defendants had taken possession of the southerly half part of the street laid out on the map; but that the use of the lane along and through the street obstructed by them. Plaintiffs appealed to the general term.

A. P. Whitehead (Martin & Smith, attorneys), for appellant :-I. Upon and after the conveyances by Lucy Audubon to John W. and Victor G. Audubon, bounding the property conveyed, by the strip of land known as One hundred and fifty-sixth street, that strip of land became and was and is, subject to an easement and right of way for the benefit of the plaintiff and the other owners of the lands fronting on said street, to the full extent of its width (Taylor v. Hopper, 62 N. Y. 649 [affirming 2 Hun, 646]; White's Bank of Buffalo v. Nichols, 64 N. Y. 65; Bissell v. N. Y. Central R. R. Co., 23 Id. 61; Wiggins v. McCleary, 49 Id. 346; Cox v. James, 45 Id. 557; Smyles v. Hastings, 22 Id. 217; O'Linda v. Lothrop, 21 Pick. 296, 297; Matter of Fourth Avenue, 11 Abb. Pr. 189; Lozier v. N. Y. Central R. R. Co., 42 Barb. 465; Matter of Thirtyninth street, 1 Hill, 191; Livingston v. Mayor, &c., 8 Wend. 85-89; Wyman v. The Mayor, 11 Id. 486–494; Matter of Seventeenth street, 1 Id. 262; Matter of Lewis street, 2 Id. 472; Badeau v. Mead, 14 Barb. 328; Matter of One hundred and fifty-fifth street, 6 Hun, 486). (a.) As between Lucy Audubon and her grantees, her conveyances to them per se dedicated One hundred and fifty-sixth street to their use as a street (Bissell v. N. Y. Central R. R. Co., 23 N. Y. 64,