Supreme Court, June, 1900. [Vol. 32. et al., HELENE M. RYAN, Plaintiff, v. HENRY H. PRESTON as Sidepath Commissioners for Suffolk County, Defendants. (Supreme Court, Suffolk Special Term, June, 1900.) Bicycles - Constitutionality and construction of Side Path Law, Laws 1899, chap. 152 — Rights of abutting owner. The Side Path Law (L. 1899, chap. 152, § 2), authorizing the board of side path commissioners thereby created to construct and maintain side paths on public roads, designed for the exclusive use of bicycles, is constitutional. An abutting owner, owning the fee in the highway to its center, is not entitled to compensation for the construction of a side path in front of his premises, as a highway is impliedly dedicated to those uses which the public may require in the future, and bicycles have become a public use. The provisions of said section 2 that "No side path shall be constructed upon or along any regularly constructed or maintained sidewalk, except upon the consent of the persons owning the abutting lands," were intended to prevent the appropriation of any portion of a regularly constructed sidewalk for a bicycle path, but were not intended to forbid the construction of a bicycle path beside or adjoining any such sidewalk. ACTION to restrain the defendants, as sidepath commissioners, from constructing and maintaining a bicycle sidepath on a road known as the South County road or Main street, in Bay Shore, N. Y., upon and along the premises of plaintiff. The plaintiff owned the fee in the highway to its center, subject to the public use. Edward B. Mowbray (Herman H. Baker, of counsel), for plaintiff. Timothy M. Griffing, for defendants. SMITH, WILMOT M., J. If a portion of the highway may be appropriated as a sidewalk for the exclusive use of pedestrians, there seems to be no reason why another portion of the highway may not be appropriated for the exclusive use of bicycles. In the case of Palmer v. Larchmont Electric Company, 158 N. Y. 231, it was held that when land is taken for a country high Misc.] Supreme Court, Appellate Term, June, 1900. way, leaving the fee in the abutting owner, it is impliedly dedicated to the uses which the public may in the future require. In that case it was decided that the erection of poles and electric lights in a highway, without compensation to the abutting owner, was permissible, because, that was such a use of the highway as the public required. The use of bicycles has become so extensive and almost universal that the public require that a portion of the highway be set apart for their exclusive use. And upon the principle laid down in the case above cited, the owner of the abutting land is not entitled to compensation by reason thereof. The provisions of section 2 of the Side Path Law (L. 1899, ch. 152), that "No side path shall be constructed upon or along any regularly constructed or maintained side walk, except upon the consent of the persons owning the abutting lands" is somewhat obscure in its phraseology, but taking the whole section together it is clear that the words " upon" or along" are synonymous, and that the provision was intended to prevent the appropriation of any portion of a regularly constructed side walk for a bicycle path, and was not intended to forbid the construction of a bicycle path beside of or adjoining any such side walk. The defendants are entitled to judgment, dismissing the complaint, with costs. Complaint dismissed, with costs. KARL M. STAHL, Respondent, v. RUDOLPH ALLERT, Appellant. (Supreme Court, Appellate Term, June, 1900.) Action for wages Breach of servant's agreement to deal honestly with the master. Where the master agrees to pay his servant a monthly salary provided his books, collections, payments and everything connected with his management of the master's business, are correct, the procuring by the servant from vendors, of false bills by which the master is induced to pay for property he had never received, is a breach of the agreement which precludes the servant from recovering his salary. APPEAL from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the plaintiff. The action was for wages. Supreme Court, Appellate Term, June, 1900. [Vol. 32. Forster, Hotaling & Klenke, for appellant. F. H. Ernst, for respondent. Per Curiam. The modified agreement, under date of August 18, 1899, to pay plaintiff a salary of $125 a month, from September 1, 1899, to February 1, 1900, was dependent upon the defendant finding the plaintiff's books, collections, payments, and everything else connected with his management of the brewery, correct. The circumstances, connected with the plaintiff's purchase of furniture for the defendant and procuring from the vendor false bills by which the defendant was required to pay for property never received by him, constituted a breach of the plaintiff's implied obligation to be faithful and honest in the performance of his duties under the defendant's employment. This was such conduct as involved moral turpitude, and was entirely inconsistent with the relation that the plaintiff held to the defendant, and the duties he owed under his employment. It comes precisely within the purview of the condition embraced in the modified contract of employment, and in itself was sufficient to relieve the defendant from all the obligations thereof. Indeed, such conduct, in the absence of the condition, would justify a termination of the employment and a forfeiture of the plaintiff's rights thereunder. The judgment, therefore, should be reversed, with costs to the appellant, and judgment ordered for the defendant, with costs. Present: BEEKMAN, P. J., GIEGERICH and O'GORMAN, JJ. Judgment reversed, with costs to appellant, and judgment ordered for defendant, with costs. ESTHER B. MARKS, Appellant, v. NICOLO DELLAGLIO, Respondent. (Supreme Court, Appellate Term, June, 1900.) Landlord and tenant An abandonment, for untenantability, must be prompt. A tenant who deems premises untenantable must abandon promptly, and where he waits more than a year before doing so, he waives his right to repudiate the hiring. Misc.] Supreme Court, Appellate Term, June, 1900. APPEAL from judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, in favor of the defendant. The action was for rent. W. C. Beecher, for appellant. Hyman Levy (Franklin Pierce, of counsel), for respondent. Per Curiam. This is an action brought to recover the rent of certain premises in the city of New York, under a written lease. The defense is substantially an eviction in consequence of the defective condition of the adjoining premises, also owned by the plaintiff, which caused foul odors to enter the premises in question. The defendant had been in possession of the demised premises for several years. He moved out on or about June 30, 1899. It appears from the evidence that the condition, which defendant claims justified his vacation of the premises, existed previous to June, 1896, about which time he first complained to the plaintiff. The defendant was then called upon to make his election either to abandon the premises for the reasons assigned, or to retain them, notwithstanding their objectionable condition. Copeland v. Luttgen, 17 Misc. Rep. 604; Smith v. Kerr, 108 N. Y. 31; Stein v. Rice, 23 Misc. Rep. 348. By retaining possession of the premises for more than a year, with knowledge of the conditions now complained of, the defendant waived his right to repudiate or terminate the hiring. He was required to act with reasonable promptitude. As stated in Copeland v. Luttgen, supra, "A tenant must exercise his option to abandon demised premises within a reasonable time. after discovering their untenantable condition." The defense interposed is without evidence to support it, and the judgment must be reversed. Present: BEEKMAN, P. J., GIEGERICH and O'GORMAN, JJ. Judgment reversed and new trial ordered, with costs to appellant to abide event. Supreme Court, Appellate Term, June, 1900. [Vol. 32. JOSEPH J. MEANEY, Appellant, v. K. HENRY ROSENBERG, Respondent. (Supreme Court, Appellate Term, June, 1900.) Attorney and client The attorney cannot retain counsel to assist him. An attorney has no right to retain associate counsel and charge his client therefor, unless the latter has assented to such retainer with full knowledge of the facts. APPEAL from judgment of the Municipal Court of the city of New York, fourth district, borough of Manhattan, dismissing the complaint. The action was for legal services. Greene & Stotesbury, for appellant. Abraham Levy, for respondent. Per Curiam. An attorney's employment is undoubtedly one of personal trust and confidence requiring his personal services, and he has no implied authority to retain associate counsel or to employ a substitute to act in his place, unless such conduct has been assented to by his client, with full knowledge of the facts. Weeks Attys., § 246. Under the record before us, plaintiff was, therefore, not entitled to recover for the services performed by the witness Brown. While the evidence is not, perhaps, as satisfactory as it might be, it, nevertheless, appears that plaintiff's assignor rendered certain services himself, and he was entitled to receive compensation therefor. The dismissal of the complaint was, therefore, improper. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. Present: BEEKMAN, P. J., GIEGERICH and O'GORMAN, JJ. Judgment reversed, and new trial ordered, with costs to appellant to abide event. |