People v. Stevens, 13 Wend. 341; Wragg v. Penn Tp., 94 Ill. 11; People v. Miller, 38 Hun, 82. In the last-cited case the defendant, Miller, was convicted of the offense of keeping a house of ill fame in the city of Buffalo, by a justice of the police. The Erie county court of sessions reversed the conviction, and the general term of the supreme court, in this department, sustained the reversal on the ground, as the report of the case says, that the record did not show that the defendant was charged with being a disorderly person. But in view of the fact that, according to the same report of the case, the charge made against her was that she kept a house of ill fame, in violation of an ordinance of the city, and as the ordinance defines the act of keeping a house of ill fame as disorderly conduct, it is difficult to comprehend why the record did not show that she was charged with disorderly conduct. It is apparent that the general term intended to recognize and distinguish the modes of punishment for the same offense prescribed by the state law and the ordinance, respectively, the one making the offense punishable by indictment and criminal methods, as a misdemeanor, and the other making the same offense punishable by a civil action for a penalty, as disorderly conduct,-and holding that because the defendant was in terms charged with keeping a house of ill fame, instead of being in terms charged with being a disorderly person, as defined by the ordinance, the civil action for the offense charged was not the appropriate remedy, and that therefore, and for that reason, her conviction by the justice of the police was not justified in law. was in effect an approval of the principle of double legislation. follows that the exception by the defendant to the admission in evidence of the municipal court judgment was well taken, and that the judgment and order appealed from should be reversed, and a new trial ordered, with ccsts to abide the event.

This

It

(6 Misc. Rep. 583.)

LYNCH v. CITY OF BUFFALO.

(Superior Court of Buffalo, General Term.

February 2, 1894.)

MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS-NOTICE OF DEFECT. Notice to a city of a defect in a sidewalk may be inferred from the length of time the defect has existed.

Appeal from trial term.

Action by Charles W. Lynch against the city of Buffalo to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before TITUS, C. J., and WHITE, J.

George M. Browne, for appellant.

George W. Cothran, for respondent.

TITUS, C. J. This action was brought by the plaintiff to recover damages for an injury which he received from a defective sidewalk while passing along a street. I do not think there is any

ground for disturbing this verdict. Several objections were made to the admission of evidence showing the condition of this sidewalk before the plaintiff received his injury. It was incumbent upon the plaintiff to show the defective condition of the sidewalk, and that the city had notice of such condition, before he could recover damages for an injury received by reason of it. No proof was given that the defendant had direct notice; but that was not necessary. It was sufficient to show that the sidewalk had been in its then present condition for a time preceding the accident, (Smith v. Mayor, etc., 66 N. Y. 295; Rehberg v. Mayor, etc., 91 N. Y. 137; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43,) when the city was bound to take notice of its defective condition, and put it in a reasonably safe condition of repair; and, if it failed to do so, it is chargeable with negligence. We think the evidence was sufficient to submit to the jury this question. No other objection was taken, and the record discloses no ground for granting a new trial. The judgment and order appealed from should be affirmed, with costs.

(7 Misc. Rep. 88.)

SKELLY v. NEW YORK EL. R. CO. et al.

(Common Pleas of New York City and County, General Term. February 5, 1894.)

1. EVIDENCE-JUDICIAL NOTICE.

The courts will take judicial notice of the general direction of the streets in New York city, and where they begin and end.

2. EMINENT DOMAIN-MEASURE OF DAMAGES.

Findings that the value of plaintiff's premises had increased since the construction of defendant's elevated railroad are not inconsistent with a judgment awarding damages for the construction of the road, where it appears the property in the neighborhood had increased in consequence of changes in its use which began before the road was built. 8. TRIAL-REQUESTS OF FINE-FORM.

Requests to find will not be granted where they require each sentence to be passed on, and ask, if the proposed findings of fact are refused, that the same matters be found as conclusions of law, and vice versa. 4. EVIDENCE-DECLARATIONS.

In an action for injury to premises caused by the construction of an elevated railroad in the street, plaintiff's unsworn statements as to the value of the premises, made to a bank on an application for a loan, are not admissible as declarations against his interest.

Appeal from equity term.

Action by Patrick Skelly against the New York Elevated Railroad Company and another. There was judgment in favor of plaintiff. Defendants appeal. Affirmed.

JJ.

Argued before DALY, C. J., and BOOKSTAVER and PRYOR,

Julien T. Davies and Ezra A. Tuttle, for appellants.

Johnston & Johnston and Eugene D. Hawkins, for respondent.

BOOKSTAVER, J. This action was brought by the plaintiff, as the owner in fee of the premises Nos. 21, 23, and 25 Ninth avenue, between Little West Twelfth street and Thirteenth street, for an in

junction and damages by reason of the erection, maintenance, and operation of defendants' road. It is the usual abutting property owners' action, about which so much has been written that there is little or nothing to be said in further elucidation of the law governing such cases. Appellants contend that the court erred in refusing to find defendants' seventeenth, eighteenth, and nineteenth requests, which are to the effect that the presence of defendants' station at Fourteenth street brings a larger number of persons daily into Ninth avenue, and in the immediate neighborhood of these premises, and increases the traffic in and upon the avenue at this point; and that the result of the proximity of defendants' station at Fourteenth street to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses which is equal to and offsets any disadvantage to the dwelling apartments in said premises occurring from the maintenance and operation of the railroad. The court found that this station did bring a larger number of persons daily into Ninth avenue in the immediate neighborhood of plaintiff's premises, but refused to find as requested in all other respects. The court might well have refused to find the proximity of the station increased the "traffic in and upon the avenue at this point" as too indefinite. The request is so framed as to leave it doubtful whether the "point" referred to was Ninth avenue at the station or at plaintiff's premises. If the former, it was wholly immaterial to the issue; if the latter, we do not think the fact established by a clear preponderance of the evidence. It must be borne in mind, respecting this and the other refusals to find, before stated, that this was an old-settled neighborhood long before the advent of defendants' road; the houses on the lots in question having been built in 1842 as dwellings. The whole vicinity was, as late as 1870, used almost exclusively as a residence neighborhood, and was thickly built up. About that time it began to change from private dwellings to stores and tenements, warehouses, storehouses, and manufactories, which change is still going on in some portions of that vicinity. This change began, not along the line of Greenwich street, some parts of which are still used for residence purposes, notwithstanding defendants' road runs through it, but commenced in Hudson street, from which it spread to Ninth avenue above Fourteenth street, where Hudson street terminates in Ninth avenue, thus conclusively showing that the change from residence to business purposes was not due to the railroad, but antedated it, and did not follow the line of the road, but another street, from which it spread uptown along the line of defendants' road, and not down. The reason for this is not far to seek. We may take judicial notice of the general direction of the streets in the city of New York, and where they begin and end, both because such facts are within the general knowledge of its citizens, and the plan of the city has been approved by law and is laid down on public maps. Brady v. Page, 59 Cal. 52; Gardner v. Eberhart, 82 Ill. 316; Vanderwerker v. People, 5 Wend. 530. Fourteenth street, crossing Ninth avenue at v.27 N.y.s.no.3-20

right angles, is a business street from river to river, with the exception of a few dwellings, and diverts much travel. Hudson street runs into Ninth avenue on a slight angle at Fourteenth street, in immediate proximity to the station. For many years this has been the chief downtown thoroughfare on the west side of the city as far as Chambers street, while Greenwich street, which is a continuation of Ninth avenue from the point where they come together, at Gansevoort street, although nearly parallel with Hudson street, has not been so much used as a business thoroughfare. Again, Gansevoort street, of late years, for reasons which will be hereafter stated, has diverted a great deal of travel through it, thus leaving three blocks on Ninth avenue, between Gansevoort street and Fourteenth street, including that on which plaintiff's premises are situated, comparatively little used; and hence it follows that there has been no such increase of travel and traffic on that part of Ninth avenue as usually results from proximity of stations on wide avenues. In arriving at this conclusion, neither the court below nor this court has overlooked the rule laid down in Bookman v. Railroad Co., 137 N. Y. 302, 33 N. E. 333, and Sutro v. Railroad Co., 137 N. Y. 592, 33 N. E. 334. We fully recognize the fact that the nature and operation of the elevated railroads is so notorious that the courts may take judicial notice that they increase the traffic in broad avenues, and generally promote and increase the business therein, and that the inconveniences and annoyances incident to the operation of the road may be, and, in the case of business property especially, are, quite likely to be offset in whole or in part by the increased facility of access afforded by the elevated system, thereby mitigating or preventing actual loss; and that in such cases it would be inequitable to estimate and award damages irrespective of benefits. But while this is generally true of all property on the wide avenues well uptown, where the population was sparse before the advent of the elevated system, and facilities of access and departure have been greatly increased thereby, there are exceptions to it, even on wide streets lower downtown, where the population was dense, and facilities for arrival and departure ample, before the road was built; and we think the facts established by the testimony in this case show it to be one of these exceptions.

It is evident both from his findings of fact and conclusions of law that the learned judge who tried this case was conscientiously endeavoring to apply the rule laid down in the Newman Case, 118 N. Y. 618, 23 N. E. 901, and the Bohm Case, 129 N. Y. 576, 29 N. E. 802, and reaffirmed in the cases supra, to the facts before him, for he found as a fact that the presence of the defendants' station at Fourteenth street brings a large number of persons daily into Ninth avenue in the immediate neighborhood of the premises in question, while he refused to find as a fact that this number increased the traffic upon the avenue in front of plaintiff's premises. It is true he did not give his reasons for this refusal, although the presumption was it would in most cases increase the traffic; but he was bound to do so, if the facts and inferences (some of which we have

attempted to give briefly) warranted him in so doing. That he had the rule in mind is further apparent from his rulings upon the questions of law submitted to him by the defendants in their favor, among which were the following: "Plaintiff is not entitled to recover damages in this action except to the extent, if any, by which the disadvantages of the defendants' railroad have exceeded the advantages thereof to said premises." Also: "The plaintiff is not entitled to more than a nominal sum for compensation for the easements appurtenant to the premises taken, appropriated, or interfered with by the construction and maintenance of the elevated steam railway, unless he has proved that the physical interference with said easements has resulted in substantial pecuniary injury to the market fee value of the premises; the burden of showing which was upon him." Also to the effect that the plaintiff must show that "the actual market fee value" of his premises would have been greater if the road had not been built, before he could recover more than nominal damages. Also, "that the sum which the defendants might pay to obviate any injunction should not exceed the damages resulting to the remainder of plaintiff's premises from defendants' appropriation of so much of the easements of light, air, and access as have been taken for the purposes of maintaining and operating their elevated railroad."

On the submission of the case the defendants presented a series of requests to find, to the effect that there had been no depreciation in the rental value of plaintiff's premises since the defendants' railway had been maintained and operated in front of them; that there had been no depreciation in the rental value of plaintiff's premises since he purchased the same; and that the fee value of plaintiff's premises had not decreased since he acquired title thereto; to which the court answered by finding that the rental value of plaintiff's premises had not been less than it was before the roads were operated, and not less than it had been since the plaintiff purchased the same, and that the fee value had not been less than it was prior to the time of his purchase. He also found that the fee value of the premises in question had increased since the plaintiff acquired title thereto, and also had increased after the date of the erection and operation of the railroad. And appellants now contend that the judgment rendered in this case is inconsistent with these findings, arguing that, since the rentals had not decreased, and the value of the fee had actually increased, the maintenance and operation of the railroad could have been of no damage to the premises; which we think is not well-founded, and assumes that the fee and rental values of property in this city will remain stationary no matter what had affected such values before the building of the road, and leaves out entirely the facts proved on the trial, which we have before referred to, and also the further fact of the recent establishment of the Farmers' and Gansevoort markets in its near vicinity. One of plaintiff's witnesses testifies that since the establishment of these markets property in Thirteenth street, between Ninth and Tenth avenues, has risen more than 200 per cent.; in Little West Twelfth street, between the same