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Supreme Court, September, 1900.

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I doubt if, in the hands of the voter, the use of the amended ballot makes any practical difference in the result. Keeping in mind that the intention of the voter, as expressed at the ballot-box, is not to be disturbed, except for substantial reasons, and regarding the objections raised as technical only, I am of the opinion that no sufficient reason has been shown why the election already held should be set aside or why a special town meeting should be called to again pass upon these questions.

My attention has been called to the case of People ex rel. Caffrey v. Mosso, 30 Misc. Rep. 164, which is contrary to the views here expressed, but with great respect for the authority of that case, still, for the reasons herein before stated, I am constrained to adhere to the foregoing opinion.

It follows that the petition must be dismissed and the motion. denied, but because of the conflict of judicial opinion as to effect of the amendment under consideration the denial of the motion is without costs.

Ordered accordingly.

JENNIE L. WEBSTER et al., Plaintiffs, v. THE FITCHBURG RAILROAD Co., Defendant.

(Supreme Court, Albany Special Term, September, 1900.)

1. Bill of particulars - Discretionary.

Except in an action on an account, it is discretionary with the court to order a bill of particulars of a pleading.

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The affidavit for the motion must be made by the party or the attorney's affidavit must show why it was not so made.

Where the answer of a railroad corporation, to an action brought against it for setting trees on fire by sparks from an engine, merely denies any knowledge or information sufficient to form a belief as to the principal allegations of the complaint, and the affidavit of its attorney does not deny negligence nor allege that the company has investigated the matter, a motion upon the part of the corporation that the plaintiff serve a bill, showing what particular train or engine did the damage, must be denied for the insufficiency of the papers.

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Supreme Court, September, 1900.

MOTION for a bill of particulars in an action to recover damages for alleged negligence of the defendant, among other things in failing to employ suitable means to prevent the escape of sparks and fire from its engines, and thus setting fire to certain trees of the plaintiffs, and destroying the same.

T. F. Hamilton, for motion.

Charles I. Webster, opposed

CHASE, J. The answer herein is a denial of any knowledge or information sufficient to form a belief as to the principal allegations of the complaint. The motion is based on the pleadings and on the affidavit of the attorney for the defendant.

It is only in an action on an account that a bill of particulars may be directed on inspection of the pleadings. In every other case a motion for a bill of particulars is addressed to the discretion of the court, and must be founded upon affidavits showing the necessity for the bill of particulars. Badger v. Gilroy, 21 Misc. Rep. 466.

The affidavit herein does not deny the defendant's negligence, and does not show that the officers and agents of the defendant are ignorant of the matters concerning which the bill of particulars is asked nor that any inquiry has been made by the defendant with reference thereto. It states that the complaint does not allege what particular engine or what particular train of cars passed the land of the plaintiffs at the time of the alleged fire and concludes that it is impossible for the defendant to properly prepare for trial without knowing what particular engine it will be claimed on the trial was defective in its means for preventing the escape of sparks. This is wholly insufficient. Wales Mfg. Co. v. Lazzaro, 19 Misc. Rep. 477; Bowman Cycle Co. v. Dyer, 23 id. 620; Slingerland v. International Contracting Co., 28 id. 319; Constable v. Hardenbergh, 76 Hun, 434.

No reason is given why the affidavit is made by the attorney for the defendant. It has been repeatedly held that an affidavit for a bill of particulars, made by an attorney, without giving any reason why it is not made by the party, is insufficient; Mayer v. Mayer, 29 App. Div. 393; Stevens v. Smith, 38 id. 119; Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 50 N. Y. St. Repr.

Supreme Court, September, 1900.

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417; Gridley v. Gridley, 7 Civ. Pro. 215; Van Olinda v. Hall, 82 Hun, 357; Cohn v. Baldwin, 74 id. 346; Groff v. Hagan, 13 Misc. Rep. 322; Mori v. Pearsall, 14 id. 251; Gallerstein v. Manhattan R. Co., 27 id. 506.

The motion for a bill of particulars is denied, with costs.

Motion denied, with costs.

THOMAS BERRIDGE, Plaintiff, v. MARY SHULTS, Defendant.

(Supreme Court, Greene Special Term, September, 1900.)

Highways - Distinction, as to private road, between Constitution and Highway Law

Jury.

The jury prescribed by the Highway Law in the matter of laying out a private road is not the jury contemplated by section 7 of article I of the State Constitution, declaring that "Private roads may be opened in the manner prescribed by law".

Where, therefore, the owner of a quarry, having no means of ingress or egress and desiring to reach a highway, proceeds under the Highway Law to have a private road laid out over adjoining property and a jury of six men fix the damages, the proceeding confers no rights upon the owner of the quarry and the adjoining owner may restrain her from proceeding with the construction of the private road upon his land.

MOTION to continue an injunction pendente lite. The action was brought to restrain the defendant from opening and using a private road.

Henry Van Hoesen, for plaintiff.

Mark Duntz, for defendant.

CHASE, J. The defendant is the owner of a tract of land containing about eighty-two acres, upon which is located a limestone quarry. The tract of land does not adjoin a public highway, and the defendant has no means of ingress or egress, without trespassing upon the lands of others. The defendant recently commenced a proceeding to lay out a private road from his said quarry lands to

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Supreme Court, September, 1900.

a highway, and the road, as so proposed, passed over the lands of the plaintiff and another adjoining owner. The proceeding was instituted and carried on as provided by sections 106 to 116, inclusive, of the Highway Law (L. 1890, ch. 568). The plaintiff objected to the jurisdiction of the commissioners of highways, and to the jury drawn by them in such proceedings, and has never consented, and does not now consent, to the laying out of such private road. He has in no way waived his right to object to the constitutionality of the provisions of the Highway Law relating to private roads. The jury called by the commissioners of highways certified to the necessity of a private road, and fixed the damages of the plaintiff at the sum of $100. The defendant has tendered to the plaintiff the sum of $100, the amount of such damages, which has been refused by the plaintiff. Thereafter the defendant entered upon that portion of the plaintiff's property described in said proceedings, to lay out a private road, and commenced tearing down fences, leveling stone walls, and cutting down growing trees thereon, and threatens to continue to tear down fences, level stone walls, cut down growing trees and complete said private road across said premises and use the same. The plaintiff alleges that the loss and damage to him from such trespass will be constant and continuous, and would cause serious and irreparable injury to him, and to prevent such injury has brought this action to restrain the defendant from opening and using said road.

The right to take private property for private roads is conferred by the second paragraph of section 7, article I of the Constitution of the State of New York, and is as follows: "Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding shall be paid by the person to be benefited." The jury provided by the sections of the Highway Law relating to laying out a private road is not such a jury as is contemplated by the Constitution. People ex rel. Eckerson v. Trustees, 151 N. Y. 75; S. C., 80 Hun, 385. See Matter of Tuthill, 163 N. Y. 133.

The defendant did not acquire the right to enter upon the premises of the plaintiff by reason of the proceedings to lay out a private road. This is not an ordinary trespass. The defendant insists upon her right to take the strip of land by virtue of the

Supreme Court, September, 1900.

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proceedings to lay out a private road as before stated, and unless the injunction is continued the plaintiff will cut down the remaining trees and do the work necessary to complete the private road and use the same until the further order of the court. As the proceedings for laying out the private road were void, the plaintiff had a right to ignore the same. 12 Am. & Eng. Ency. of Law, 147. The authorities cited by the defendant to the effect that a judgment or proceeding should not be attacked collaterally, do not apply to this case, for the reason that they all relate to cases where errors or frauds were committed after jurisdiction had been obtained. They do not apply in a case like the one now before me, where the proceeding by reason of failure to comply with the constitutional provisions is entirely without force or effect. The injunction should be continued pendente lite.

Motion granted.

THE TABERNACLE BAPTIST CHURCH, Plaintiff, v. THE FIFTH AVENUE BAPTIST CHURCH OF NEW YORK CITY, Defendant.

(Supreme Court, New York Special Term, September, 1900.)

Suspension of power of alienation Not effected by a gift to a church of personalty, of which the principal must be forever kept intact, with a proviso that the church, for ten years, pay the income to another church, provided the latter fulfills certain conditions.

An agreement by the terms of which a donor transfers to an incorporated church certain bonds, of which the principal must be forever kept intact, accompanied by a requirement that the church shal for ten subsequent years pay the net income to another incorporated church for its mission work, provided that church fulfills certain conditions, failing which, the first-named church shall forever apply only the net income to its own mission work, does not unlawfully suspend the ownership of personal property by interposing therein a definite beneficial period not marked by the duration of life, as the title to the fund passes to the donee, it is the ultimate beneficiary, and the conditional provision for the other church may be regarded in the light of an annuity or as a mere incident to the gift.

AOTION for an accounting.

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