not be disturbed except by an action in equity for that purpose, showing that the party has been mislead by fraud, mistake, or manifest error. This is not established, and there is no valid ground for setting aside the settlements which have been made between the parties.

The counsel for the appellant relies upon certain cases decided by this court, to establish the principle that an officer of a municipal corporation cannot be compelled to take less compensation for his services than that fixed by statute, viz.: People v. Board of Police, 75 N. Y. 38; People v. French, 91 N. Y. 265; Kehn v. State, 93 N. Y. 291. These cases are clearly distinguishable from the one now considered. The plaintiff here received into his hands sufficient to pay the amount of fees to which he was entitled, which were fixed by law, and voluntarily paid the same over to the city, less the amount agreed upon. He made repeated annual reports, each one of which was equivalent to an account stated, and finally he made a settlement of his entire claim by accepting a receipt for the balance in his hands, thus carrying into effect the agreement he had made, and virtually releasing the city from any additional or further claim. He has thus by his own acts estopped himself from claiming the benefit of the principle decided in the cases cited. There was no such characteristic in any of these cases cited as is presented in the case at bar, and they are not applicable to the facts presented in the record before us. Conceding there was no consideration for the original arrangement, the plaintiff had a right to surrender any claim he might have by reason of its illegality, and discharge the same.

The appellant claims that the city treasurer could retain nothing for his fees; that they must be paid from the city treasury by warrant of the common council if his accounts should be found to be correct, and it was therefore illegal for the common council to allow, and the plaintiff to appropriate, the moneys mentioned in his annual reports as salary. The answer to this position is that the plaintiff adjusted his accounts in this form, consented to and received his pay as already stated, and made a full settlement of his claims for services as treasurer, and it does not rest with him now to insist that the payments were illegal because no warrant was issued for what he received, even if it was entirely apparent that such warrant was required by law.

Numerous other questions are raised, which we have examined, but we are unable to perceive in any of the rulings upon the trial any ground for reversal of the judgment.

The judgment should be affirmed, with costs.

(All concur, except RAPALLO, J., absent.)

(101 N. Y. 602)

SCHOLL v. ALBANY & RENSSELAER IRON & STEEL Co.

Filed March 23, 1886.

DEMURRAGE-UNREASONABLE DELAY A QUESTION FOR THE JURY-DUTY OF CARRIER WHERE HE IS TO CARRY AND DISCHARGE.

Plaintiff was master of the Scholl, and, by his bill of lading, was to carry coal, and discharge it at the port of destination. He reported on his arrival and requested to be discharged, and offered to do the shoveling if the defendant provide for taking it away, but the latter insisted upon his taking his turn in unloading at the wharf. Held, that he had offered to perform the contract, and it was a question of fact for the jury, to be determined upon all the circumstances, whether there was unreasonable delay on the part of the defendant in discharging the vessel. Cross v. Beard, 26 N. Y. 85, distinguished.

J. A. Hyland, for appellant.
Wm. C. Holbrook, for respondent.

ANDREWS, J. It seems to be the prevailing doctrine that a consignee, who at the same time is the owner of the cargo, is liable to the owner or master of the vessel for damages, in the nature of demurrage, for an unreasonable delay in discharging the vessel after arrival, although the bill of lading contains no stipulation as to demurrage, and prescribes no time within which the cargo shall be discharged. Henley v. Brooklyn Ice Co., 14 Blatchf. 522; Cross v. Beard, 26 N. Y. 85; Fulton v. Blake, 5 Biss. 371.

The coal, which formed the cargo of the Scholl, had been purchased by the defendant of the shipper, and was shipped by the vendor to the defendant at Hudson. Upon the facts proved, the defendant, as between it and the carrier, was both owner and consignee of the cargo. The general term reversed the judgment of the trial court, on the ground that the plaintiff, the master of the Scholl, in view of the fact that, by the bill of lading, he was not only to carry the coal, but also to discharge it at the port of destination, was bound, in order to put the defendant in default, to call upon the defendant, on arrival, to designate a place where it could be unloaded. We are of opinion that when the plaintiff, on arrival, reported to the defendant, and requested to be discharged, and offered to do the shoveling of the coal if the defendant would provide for taking it away, which it declined to do, but insisted upon his taking his turn in unloading at the wharf, he did what was equivalent to an offer to perform the contract on his part. It then became a question of fact, to be determined upon all the circumstances, whether there was unreasonable delay on the part of the defendant in discharging the vessel.

We do not perceive that the case of Cross v. Beard, supra, has any material application. In that case the court reversed the judgment of the trial court in favor of the plaintiff, for the exclusion of evidence offered by the defendant, tending to show that the delay in unloading at the defendant's wharf was owing to a vis major, and was not the fault of the defendant. The fact that the defendant had declined, upon the request of the plaintiff, to allow him to unload at some other wharf did not cure the error. The court in that case held that it was for the jury to determine, upon all the facts, whether the defendant had unreasonably de

layed the discharge of the vessel. We think there was no error of law committed by the trial court, and we cannot upon this appeal review the findings of fact.

The judgment of the general term should therefore be reversed, and the judgment of the trial court affirmed.

(All concur, except RAPALLO, J., absent.)

(102 N. Y. 1)

PEOPLE V. LOHFILEM.

Filed March 23, 1886.

WAYS-HIGHWAYS - PROOF OF ACCEPTANCE BY THE PUBLIC - OBSTRUCTIONSPEN. CODE, § 385.

The acceptance of a highway by the public may be proved by long public use, or by the acts and conduct of the public authorities recognizing and adopting it; and it is not necessary that a regular record of the road be made, or a judgment establishing it be obtained before an obstruction can be prevented or punished.1

This is an appeal from a judgment and order of the general term of the superior court of Buffalo, entered June 8, 1885, affirming a judgment of the criminal term of said court, rendered upon the verdict of a jury, February 3, 1885, convicting the defendant and appellant of the crime of interfering with and obstructing a certain public street and highway in the city of Buffalo, known as "Beach Street," by maintaining a house and building, contrary to the provisions of section 385, Pen. Code. The judgment fined the defendant one dollar, and directed the removal of the nuisance, as provided by the Code of Criminal Procedure. F. R. Perkins, for appellant.

T. R. Becker, for respondent.

PER CURIAM. This conviction must be affirmed. The dedication of Beach street to the use of the public for its full width of 66 feet was proved by the map of the original owner, and is not disputed. The debate has been over the acceptance by the public, and the character of the proof necessary to establish that fact. The rule appears to be established that the acceptance may be proved by long public use, or by the acts and conduct of the public authorities recognizing and adopting the highway. Cook v. Harris, 61 N. Y. 448; Holdane v. Trustees of Cold Spring, 21 N. Y. 474; McMannis v. Butler, 51 Barb. 436.

Such use and such acts were proved in this case. The common council directed a survey of Beach street as the land-owner had mapped and dedicated it, and the establishment of its lines, which was done, and its boundaries distinctly marked, and obstructions upon its limits ordered to be removed. The authorities built a sewer through it, and assessed the cost upon adjoining property, and put down water-pipes, and the public used and traveled it to its full width, except where prevented by obstructions. Upon facts like these the question of acceptance was

'See note at end of case.

submitted to the jury, who found the street to be a public highway. No formal laying out was necessary in such a case. The dedication dispensed with the need of that, and all that remained was for the public to say whether they would accept it as laid out and dedicated by the land-owner. That often becomes a question of fact, and was treated as such in this case. The argument that there must be a regular record of the road, or a judgment establishing it, before an obstruction can be prevented or punished, assumes that an acceptance cannot be otherwise proved; and is further answered by the cases which hold that the acceptance by the public, which establishes the highway, and the obstruction to it, may be found by one and the same jury. Cook v. Harris, supra; People v. Lambier, 5 Denio, 9.

We find no error in the record, and the judgment should be affirmed. (All concur, except RAPALLO, J., absent.)

NOTE.

For a discussion of the question of dedication of streets to public use, see Tucker v. Conrad, (Ind.) 2 N. E. Rep. 803, and note, 807.

To make the dedication valid and constitute a highway the owner of the soil must not only intend to dedicate the land as a highway, but the public must accept the dedication. Eastland v. Fogo, (Wis.) 27 N. W. Rep. 159.

There must be an acceptance by the public of an offer to dedicate. Brooks v. City of Topeka, (Kan.) 8 Pac. Rep. 392.

No formal acceptance is necessary; and when a street has been in use over 20 years, acceptance may be presumed. Requa v. City of Rochester, 45 N. Y. 129.

(102 N. Y. 648)

HAYES v. BUSH & DENSLOW MANUF'G CO.1

Filed March 23, 1886.

TRIAL-INSTRUCTIONS-SUFFICIENCY OF EXCEPTION.

"

In an action for injury to plaintiff's son through a defective machine, at the close of the judge's charge defendant's counsel requested the court to charge that "if the jury believe the employment was dangerous, and that the defendant used proper precautions. by notice and instruction concerning it, the plaintiff cannot recover." The court replied: "I decline to charge that. I charge, on the contrary, that if this was dangerous to life and limb, as I have defined to you, then it comes within the condemnation of the statute. [chapter 122, Laws 1876,] and then nothing can protect the party from liability except the absolute consent of the plaintiff. The record then states, "Defendant excepts. Held, that the exception was sufficient; that this was not a case of a single exception to two propositions, one of which is correct, and the other erroneous, but that the real point intended to be brought before the court was that an absence of negligence on the part of the defendant would be a defense to a liability based on chapter 122, Laws 1876, although the employment was dangerous, and that the defendant sought to induce the court to modify its charge that it was liable if the employment was dangerous, irrespective of negligence, and was so understood by the court.

Appeal from order general term, Second department, affirming judg ment for plaintiff.

Theodore F. Hascall, for appellant.
Chas. J. Patterson, for respondent.

Reversing 32 Hun, 463, mem.

ANDREWS, J. The plaintiff's son, about 15 years of age, was employed in the defendant's factory, and while operating a stamping-machine sustained an injury to one of his fingers, from its being caught between the dies of the machine. The right of the plaintiff to recover was presented by the trial judge to the jury in two aspects: First, under the act, chapter 122, Laws 1876; and, second, on the ground of the defendant's negligence in permitting the boy to use a defective machine. The court charged the jury that, if they should find that the business in which the boy was employed was dangerous, and that the plaintiff was not cognizant of the danger of the employment, and did not consent that the boy should be set to work with the machine, the defendant was liable under the statute, irrespective of any question of negligence on its part; but that if the jury should find that the employment was not dangerous, then they were to determine the other question, viz., whether the machine was defective, and whether, knowing of the defect, the defendant negligently permitted the boy to use it, thereby causing the injury. Upon the conclusion of the charge the defendant's counsel requested the court to charge "that if the jury believe the employment was dangerous, and that the defendant used proper precautions by notice and instruction concerning it, the plaintiff cannot recover." The court replied: "I decline to charge that. I charge, on the contrary, that if this was dangerous to life and limb, as I have defined to you, then it comes within the condemnation of the statute, and then nothing can protect the party from liability except the absolute consent of the plaintiff." The record then states, "defendant excepts."

It is conceded that the charge made in response to the request of the defendant's counsel was erroneous under the recent decision of this court in Hickey v. Taaffe, 99 N. Y. 204; S. C. 1 N. E. Rep. 685. But the sufficiency of the exception is challenged on the ground that it relates both to the refusal to charge, and to the charge as made, and that the request to charge was properly refused, because it took no account of the alleged negligence of the defendant in permitting a defective machine to be used, which it is claimed would be an affirmative ground of recovery, although proper notice and instruction for the management of the machine had in the first instance been given. The doctrine is invoked that where there there is a single exception to two propositions, one of which is correct, and the other erroneous, the exception fails as to both. But we think the doctrine is inapplicable to the exception in question. The real point intended to be brought, by the request, to the attention. of the court, was not that notice and instruction as to the use of the machine would alone necessarily exempt the defendant from the charge of negligence, but that an absence of negligence on the part of the defendant would be a defense to a liability based on the statute, although the employment was dangerous. The defendant, in other words, sought to induce the court to modify its charge that the defendant was liable if the employment was dangerous, irrespective of negligence. It is plain that the request was so understood by the court, and in response thereto the court reiterated the proposition which it had before charged, that it v.5N.E.no.5-50