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Kenefick, Cooke, Mitchell & Bass, of Buffalo (Fritz Fernow, of Buffalo, of counsel), for plaintiff.

Michael M. Cohn and A. Howard Aaron, both of Buffalo, for defendant.

BROWN, J. In 1893 a predecessor of the defendant's title erected a dwelling house upon the premises now owned by the defendant. A small portion of a bay window on the east side of the dwelling extended over defendant's east line upon the lands now owned by the plaintiff. This action was commenced in 1922 to recover possession of the lands upon which the bay window ericroaches, the plaintiff alleging that she is the owner thereof. The defendant denies plaintiff's ownership, and alleges as an affirmative defense that defendant's building as now located has stood upon said premises for more than 20 years, and that title thereto has accrued to defendant by adverse possession.

It was established upon the trial that in 1907, when Pendennis White owned the plaintiff's premises, he discovered the existence of the encroachment and in a conversation with the husband and agent of the then owner of the defendant's premises at which time the owner of defendant's premises was not aware of such encroachment, and was asked if he would sell the land covered by the encroachmerzt. Mr. White replied, “I will sell you nothing; I will give it to you.” At that time the encroachment had existed for 14 years. It is very apparent that at that time the owner of the defendant's premises was not claiming to be the occupant of the lands in hostility to the owner of the record title.

In 1910 the then owner of the defendant's premises, in seeking to sell the same to the defendant, sought to procure from the then owner of the plaintiff's premises a lease of the lands occupied by the bay window to the defendant, and the defendant made his purchase upon his grantor agreeing to see that he (defendant) would get a lease of the lands in dispute. It is very apparent that in 1910, 17 years after the bay window was built, the then owner of defendant's premises was not claiming occupancy of the disputed lands in hostility to the then owner of plaintiff's premises. Defendant made his purchase, knowing that his grantor was not occupying in hostility to plaintiff's title. Defendant knew, when he made his purchase, that his grantor was in possession of the disputed premises without title, and with no claim of title.

One in possession without title, and not claiming title, who offers to purchase from the holder of the title, thus recognizing the title of the owner, cannot set up his own possession as adverse. Mayor, etc., of the City of New York v. Mott, 60 Hun, 423, 15 N. Y. Supp. 22; Colvin v. Burnet, 17 Wend. 564, 569. In the last-cited case it was said:

"It is well known that a single lisp of acknowledgment by the defendant that he claims no title fastens a character upon his possession which makes it unavailable for ages."

The cases cited by defendant simply hold that one in possession as owner, having record title or title complete by adverse possession, or (202 N.Y.S.) under color of title in fee, or claiming title, is at liberty to negotiate for and purchase an outstanding claim, and thus quiet his title, without being estopped from disputing such outstanding title. Such authorities do not reach the question here involved.

An offer, made by one in possession having no title, not having a title by adverse possession for 20 years not even claiming title, to purchase or lease from the owner of the record title, is in and of itself a declaration that the one making the offer is not holding possession in hostility or adverse to the owner, and is a recognition of the true owner's title. At no time has there been 20 years of continued, uninterrupted, adverse, and hostile possession of the premises in dispute by any holder or holders of defendant's title.

The plaintiff is awarded the relief demanded in the complaint, with costs. Let findings be prepared.

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(207 App. Div. 542)

FOUNTAINE V. FULD & HATCH KNITTING CO. (Supreme Court, Appellate Division, Third Department. January 9, 1924.) 1. Boundaries ww33—No presumption that fence marks boundary line.

Where there was no evidence that a fence was erected to mark the

boundary line, there was no presumption that it did. 2. Appeal and error 853—Instructions not excepted to became law of case.

Instructions relating to landowner's right to dump live ashes on its property and as to the burden of proof, to which no exceptions were taken,

became the law of the case. 3. Municipal corporations am 648-Travel by public for 20 years held not to make

"highway" under statute,

Proof that a strip of land was used for public travel for 20 years was insufficient to establish it as a public "highway" under Highway Law, $ 209, in the absence of proof that the public authorities kept the road in repair or in any way recognized it as a highway, and a child who was burned by running on a pile of ashes dumped thereon could therefore not recover on the theory of nuisance.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Highway.)

Van Kirk, J., dissenting in part.
Appeal from Trial Term, Albany County.

Action by Rhea Fountaine, an infant, by Theophilas Fountaine, her guardian ad litem, against the Fuld & Hatch Knitting Company. From a judgment, after a verdict for plaintiff for $5,000 had been reduced to $3,000 by the stipulation of the plaintiff, pursuant to an order of the justice presiding at the trial, and from so much of said order as denied defendant's motion to set aside the verdict and for a new trial, defendant appeals. Reversed, and new trial granted.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, HINMAN, and McCANN, JJ.

Ainsworth, Sullivan, Wheat & Archibald, of Albany (Benjamin P. Wheat, of Albany, of counsel), for appellant.

Walter H. Wertime, of Cohoes (Rollin B. Sanford, of Albany, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

HINMAN, J. 11, 2] The action was brought to recover for personal injuries to a child nine years of age, who was burned by running upon a pile of hot ashes which had been dumped by an employee of the defendant. The accident happened in the city of Cohoes, on an open strip of land between the defendant's factory and the Champlain canal. This strip of land lay in the rear of defendant's factory and was about 25 to 30 feet wide at one rear corner of the factory and narrowed down to 20, or 25 feet at the other rear corner. The engine room of defendant's plant was located in the rear of its building, and there was a coal bin there, made by erecting a fence. The ashes were piled between this fence and the bank of the canal. The photographs and testimony show that the pile was located near the fence. It does not appear that the fence was designed to mark the boundary line between the lands of the defendant and the state canal lands, and no such presumption is available to the plaintiff. The record is barren of any proof as to the location of the property line between the defendant's property and the property of the state. Along the canal bank there was a towpath, and the plaintiff claims that the whole strip of land between the mill and the canal had been used for a period of over 20 years as a public highway for teams hauling loads to and from this and other factories and for pedestrians. It is admitted, however, that there is no evidence that this roadway had been laid out and recorded as a public highway. The plaintiff relies upon this evidence of user by the public as a highway to prove that the ashes were piled upon public lands and constituted a nuisance. The action was tried and submitted to the jury on the theory of nuisance only. The claim of the defendant is that there was an entire failure on the part of the plaintiff to locate the pile of ashes upon a public street or highway. The court charged the jury that defendant "had a right to dump its live ashes on its own property where it determined to do it, and if this plaintiff was injured by going upon the property of the defendant, whether the property was fenced or not, she had no cause of action here, because they had a right to use their own property incident to their business." The court also charged, upon request of defendant, “that the burden is on the plaintiff to show that the ashes in question were put upon a public thoroughfare or highway and not on its own property." No exceptions were taken to these charges, and they became the law of the case.

[3] The plaintiff has not met the burden imposed by the law of the case, unless the undisputed evidence as to user of this strip of land as a driveway and by pedestrians for over twenty years was sufficient to sustain a finding that it constituted a highway within the meaning of section 209 of the Highway Law. This question, however, has been thoroughly decided in the leading case of Speir v. Town of Utrecht, 121 N. Y. 420, 429, 24 N. E. 692, 694, wherein the court said:

"All we have here is that 'the road was used by the public generally. But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway; and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must

(202 N.Y.S.) not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities."

The law as interpreted in the case of Speir v. Town of Utrecht, supra, has been uniformly followed in this state. See People v. Underhill, 144 N. Y. 316, 324, 39 N. E. 333; Palmer v. Palmer, 150 N. Y. 139, 148, 44 N. E. 966, 55 Am. St. Rep. 653; People ex rel. Cunningham v. Osborn, 84 Hun, 441, 32 N. Y. Supp. 358, affirmed 155 N. Y. 685, 50 N. E. 1150; Hamilton v. Village of Owego, 42 App. Div. 312, 59 N. Y. Supp. 103, affirmed 171 N. Y. 698, 64 N. E. 1121 ; Ricketson v. Village of Saranac Lake, 73 Misc. Rep. 52, 130 N. Y. Supp. 794; Smith v. Smythe, 197 N. Y. 457, 90 N. È. 1121, 35 L. R. A. (N. S.) 524.

Here there is no proof that the public authorities kept this strip of land in repair or adopted it, or in any way recognized it as a highway. There is no proof as to the location of the outer boundary of the state's land. There is no proof from which it can be found that the land upon which the ashes were piled constituted a part of the towpath. Therefore the plaintiff has failed to meet the burden of proof. Perhaps upon another trial the plaintiff will be able to fix the boundary line or to supply proofs lacking here, as to recognition of this land as a highway by the public authorities. The judgment and order should be reversed upon the law and the facts, and a new trial granted, with costs to the appe Hant to abide the event.

All concur, except VAN KIRK, J., who votes for reversal and dismissal on the ground that the motion for a nonsuit should have been granted.

PEOPLE ox rel. ACKRON v. HUNT, Agent and Warden of Great Meadow Prison.

(Supreme Court, Washington County. December 29, 1923.) Habeas corpus fm23-Pardon 10-Whether parole should be revoked within

parole board's discretion, and not reviewable by habeas corpus.

Under Prison Law, $ 215, whether a prisoner's pa role should be revoked is a question solely within the discretionary powers of the parole board, and cannot be reviewed by a writ of habeas corpus. Habeas corpus by the People of the State of New York, on the relation of Charles Ackron, against William Hunt, Agent and Warden of Great Meadow Prison. Writ dismissed.

Charles Ackron, in pro. per.
William J. Cahill, Deputy Atty. Gen., for respondent.

ANGELL, J. Relator seeks to review by writ of habeas corpus the action of the parole board revoking his parole. Section 215 of the Prison Law of this state provides that, if the board of parole "shall have reasonable cause to believe that the prisoner so on parole has violated his parole and has lapsed or is probably about to lapse into criminal ways or company," the prisoner may be retaken. It thus clearly appears that the question of whether a prisoner's parole should

For other cases see same topic & KEY-NUMBER in all Kay-Numbered Digests & Indexes

be revoked is one solely within the discretionary powers of the parole board. The discretion thus vested by statute in the board of parole cannot be reviewed by a writ of habeas corpus. This would necessarily seem to be true even if there were no authority upon the question. However, in People ex rel. Kane v. Hanley, 116 Misc. Rep. 624, 191 N. Y. Supp. 41, where in a similar case the relator sought to avoid being taken into custody under a warrant for his arrest issued by the parole commission for a breach of parole, Justice Lydon said:

"This power of recommitment, however, has been held constitutional (People V. Madden, 120 App. Div. 338), and no provision has been made in the statute creating the commission for reviewing its action in revoking a parole for the prisoner's breach of conditions upon which the parole was granted.

I am of the opinion that this proceeding is improperly before me, and the relator's claims should not be considered on a writ of habeas corpus."

It is therefore necessary to dismiss the writ. Writ dismissed

(207 App. Div. 467)

WELLS v. CHAFFEE et al.

(Supreme Court, Appellate Division, Fourth Department. January 2, 1924.) 1. Principal and agent wi105(9)-Evidence that makers returned automobile in payment of note reversible error.

In an action on a note given for price of an automobile, it was reversible error to admit evidence, over plaintiff's objection, that the automobile was returned by makers in payment of the note under an arrangement with plaintiff's agent, who sold them the automobile, without

proof of agent's authority, and that plaintiff assented thereto. 2. Principal and agent em 147(2)-Party dealing with agent held to know his

authority, and must prove it.

Persons dealing with an agent are bound to know the extent of his

authority, and must prove it before principal is liable. 3. Principal and agent C 103(14)—Special agent held unauthorized to change

contract.

A special agent, authorized to sell automobiles, exhausted his powers when he sold an automobile, and had no implied authority to change the

written contract subsequently signed by his principal and buyers. 4. Trial em 25(1)-Refusing plaintiff right to open and close held not error.

In an action on a note, held, that it was not error to refuse plaintiff

permission to open and close. 5. Bills and notes C394, 408, 532–Payee need not prove presentment and pre.

test; protest fees not recoverable.

In action by payee of note against makers, it is not necessary to show

presentment and protest, and protest fees cannot be recovered. 6. Principal and agent Om 122(1)-Agent's declarations inadmissible to establish

authority,

Declarations of an agent are inadmissible to establish his authority.

Davis, J., dissenting.
Appeal from Trial Term, Chautauqua County,

Action by Joseph E. Wells against Benjamin Chaffee and others. From a judgment for defendants, and from an order denying plaintiff's motion for a new trial, plaintiff appeals. Reversed, and new trial granted.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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