formance. Still, the two subjects are so far divisible that if performance be waived, by the party entitled to demand it, as to one provision, and accepted as to the other, a recovery may be had under the contract for that which was performed. Further, if, with full knowledge of defendant's inability to keep one portion of the contract, plaintiff requested and accepted performance under the other, such conduct, of itself, constituted a waiver. According to the testimony of the defendant and his witness, it appears that after the making of the first contract, in November, 1889, the defendant, under the second provision in the agreement, gave to him the priv ilege of furnishing laborers under several contracts; that he accepted the offers, and made no objection that he was not accorded, under any one of them, all of the rights which it was the purpose of the contract to secure to him; that on several occasions defendant requested him to bring in his accounts, showing the number of men employed, to the end that a settlement might be had between them, and defendant promised, each time, to do so on the next visit. It also appears that after the defendant had failed to obtain the privilege of supplying labor under section 2 of the waterworks, which was the subject of the first provision of the agreement, he informed plaintiff of it, who, instead of declaring the contract at an end, and asserting that there was such failure of performance on the part of defendant as denied to him the right of recovery for the privileges which he had furnished, continued to accept the benefits which the defendant secured to him under the second provision of the contract, and, in one instance at least, accepted from him the privilege of furnishing laborers on a work in which he had not before been engaged. In the light of these facts, the court cannot say, as a matter of law, that the plaintiff did not waive any right he may have had to insist upon full performance under both provisions of the agreement, as a condition of recovery. There was such a performance under the second provision as at least presented a question for the jury whether it was not substantial. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(75 Hun, 235.)

ZORN v. HAAKE.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) TRESPASS-WHEN LIES-POSSESSION OF LOCUS IN QUO.

Where plaintiff and defendant, as owners of adjoining lots, take possession and construct a fence on what they suppose is the dividing line, and it afterwards proves to be entirely on plaintiff's lot, plaintiff is not in possession of the portion of his lot on defendant's side of the fence, and therefore he cannot maintain trespass quare clausum fregit as to such portion.

Appeal from circuit court, Erie county.

Action by John Zorn against Frederick W. Haake for trespass on land. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Stephen Lockwood, for appellant.
Allen & Butterfield, for respondent.

DWIGHT, P. J. The action was trespass to lands. The parties owned and occupied adjoining lots on the west side of Bailey avenue in the city of Buffalo. John Klein was their common source of title. He took title, in 1867, to the entire front of lots Nos. 51 and 52 of the Buffalo Creek reservation, on the Williamsville road, (now Bailey avenue,) being, by description, 20.50 ch., or 1,353 ft., in length along the west side of Bailey avenue. The strip was bounded on the south by the south line of lot 51 and on the north by the south line of lot 53. The south line of lot 51 was the center line of Clinton street, which crossed the Williamsville road at right angles, and Clinton street was 66 feet wide; so that, deducting from the entire length of the strip, as given in Klein's deed, one-half the width of Clinton street, his front on Bailey avenue was, by description, 1,320 feet. In the years 1872, 1873, 1880, and 1881, Klein sold off and conveyed several lots, varying from 30 to 90 feet front, all located in succession from the north end towards the south, but in each of the conveyances the description commenced at the southeast corner of the lot conveyed, which was described as being so many feet from the north line of Clinton street. Thus, of the first lot, conveyed to Johannah Buse, the front line was described as commencing in the west line of the Williamsville road, (Bailey avenue,) 1,260 feet from the north line of Clinton street, and running north 60 feet, which, according to the description in Klein's deed, would bring it to the north line of the strip, or the south line of lot 53. So, in case of each successive conveyance, the width of the lot conveyed was added to that of all the lots previously conveyed, and, the sum being deducted from the whole 1,320 feet front, gave the distance from the north line of Clinton street, at which the description began. This, in effect, bounded each lot on the north by the south line of the lot next previously conveyed. The plaintiff's lot was the seventh in the order of conveyance and of consecutive location from the north southward. The six lots previously conveyed had an aggregate front of 350 feet, and the plaintiff's of 30 feet, and, accordingly, the description in his deed commenced at a point 940 feet north from the north line of Clinton street. The next conveyance was in 1881, to one Martin, of a lot 90 feet front, and the description began at a point 850 feet north from the north line of Clinton street. This was the lot subsequently conveyed to the defendant. The plaintiff took his deed in 1880, at which time there was a fence on the supposed south line of the lot north of him, and he took possession of 30 feet front south of that fence. Within a year or two thereafter he built a fence part way through from the front, on his supposed south line, 30 feet south from the fence above mentioned; and within a year or two of the same time, Martin, the defendant's grantor, completed the fence through to the rear of their

lots, on the same line. The plaintiff testifies that he built his part of the fence on the line which his grantor pointed out to him as his south line, and that he and the defendant's grantor agreed on the division of the fence between them, substantially as it was built by them at this time. The defendant took his title in 1890, taking possession up to the line of the fence last above mentioned. In January, 1891, he commenced to excavate clay for bricks in the north part of his lot, near the fence. He did so without objection from the plaintiff, until the latter became alarmed for the safety of his fence, and objected to his coming nearer the line. Upon the defendant's persisting, the plaintiff procured a surveyor to locate the line accurately, and was as much surprised as the defendant was to learn that the point 940 feet north from the north line of Clinton street, which, according to the description in both deeds, was the plaintiff's southeast and the defendant's northeast corner, fell 9 feet south of the fence between their lots; but he proceeded thereupon to bring his action for damages for breaking and entering his close and taking and carrying away the soil of his lot. That action, we suppose, could not be maintained on the facts stated, for want of possession in the plaintiff; and the objection was taken by the defendant in his motion for a nonsuit on that ground.

It

The action of trespass quare clausum fregit has always been regarded as a possessory action, and one which could be maintained only by the party in possession. 4 Kent, Comm. 120, note d; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Stuyvesant v. Tompkins, 9 Johns. 61; Frost v. Duncan, 19 Barb. 560. is true that the possession necessary to the maintenance of the action need not in all cases be an actual possession. As was said by Chief Justice Nelson in Holmes v. Seely, 19 Wend. 507: "The plaintiff must have the actual possession at the time, or, what is deemed equivalent, a possession which the legal title draws after it."

But the legal title does not draw after it the possession of land which is at the same time in the actual, exclusive, and adverse possession of another. In Van Rensselaer v. Radcliff, 10 Wend. 639, it was held that a party having title to lands, though not in the actual possession thereof, may maintain trespass against another, who is not himself in the actual possession of the premises. The language of Judge Savage at pages 652, 653 was:

"The possession of the plaintiff was sufficient against a stranger. He showed title to lands which were not in the possession of any other. He was therefore in possession, as, in such cases, the possession follows the title."

See, also, Wickham v. Freeman, 12 Johns. 183, 184. The cases cited by counsel for the plaintiff, to the effect that title to the whole and possession of a part give constructive possession of the whole, do not apply to cases where the possession of the locus in quo is actually in the defendant. In Munro v. Merchant, 28 N. Y. 9, the question was what form of holding was sufficient to constitute an adverse possession in the plaintiff; but here was adverse possession in the defendant. It is impossible that two persons should be in

possession of the same piece of land at the same time, unless they are joint tenants or tenants in common. In the case of Society v. Baker, 15 Vt. 119, it was held that "to maintain trespass quare clausum fregit, the plaintiff must have either title or exclusive possession, and there must be no adverse possession in any other person." Here the actual, exclusive, and adverse possession of the defendant was unquestioned. The principles involved in this discussion were well stated by the supreme court of North Carolina in Dobbs v. Gullidge, 4 Dev. & B. 68, as follows:

"The action of trespass quare clausum fregit, being a remedy for injury to the possession, cannot be maintained by him who had not possession when the wrong was done. But when there is no actual possession in another the law adjudges him in possession who has the property, and this constructive possession is fully sufficient to maintain the action."

The answer here given to the plaintiff's present action renders it unnecessary to consider the questions which might have properly arisen in the case had the action been one asserting title in the plaintiff, and claiming to recover possession of the defendant. The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event. So ordered. All concur.

(75 Hun, 224.)

PEOPLE ex rel. WOOD v. BOARD OF COM'RS OF EXCISE OF TOWN OF RANDOLPH.

January 18, 1894.)

(Supreme Court, General Term, Fifth Department. INTOXICATING LIQUORS-RIGHT OF EXCISE COMMISSIONERS TO REFUSE LICENSE. Laws 1892, c. 401, § 41, which provides that nothing contained in the act shall apply to any town where the majority of voters shall vote for local prohibition, recognizes the right of each town to establish local prohibition by the vote of its electors, and the excise commissioners may refuse to grant the license on the ground that they were elected as "nolicense" commissioners.

Appeal from special term, Cattaraugus county.

Certiorari by Oscar C. Wood to review the action of the board of commissioners of excise of the town of Randolph in denying relator's application for an hotel license. From an order dismissing the

certiorari, relator appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ. William H. Henderson, for appellant.

D. C. Reilly, for respondent.

DWIGHT, P. J. The return of the commissioners is to the effect that they were elected as no-license commissioners, and that for that reason they felt it to be their duty, "both in a legal and moral sense," to refuse to grant the license applied for. We think the order of the special term dismissing the proceedings was well based upon such return, and should be affirmed.

Section 41 of the excise law of 1892 (Laws 1892, c. 401) is as follows: "Local Option. Nothing herein, except section thirty-one shall in any manner apply to any town where the majority of voters

have voted for or hereafter vote for local prohibition until such town shall reverse by vote, such local prohibition." Section 31, referred to, makes it a misdemeanor to sell intoxicating liquor without a license. The section 41, above quoted, is in all material respects a transcript of section 6 of the excise law of 1873, (Laws 1873, c. 549,) with the omission of the words, "in accordance with any law providing for such voting," which, in the act of 1873, occur after the words, "vote for local prohibition." In other words, the act of 1873 recognized and gave effect to the vote of any town for local prohibition only when such vote was given in accordance with some existing law providing therefor; whereas the act of 1892, by omitting the qualification mentioned, apparently recognized the right of each town to establish local prohibition by the vote of its electors, without any special provision of law prescribing the mode of taking such vote. The recognition, if intended, was certainly in accordance with the practical effect which had been given to existing laws for many years. The act of 1873 was followed in 1874 by the provision for the election in each town of separate officers designated as "commissioners of excise," to be voted for on a separate ballot, which should be deposited in a separate box, marked "Excise." Laws 1874, c. 444, §§ 1, 2. The court will take judicial cognizance of the fact as part of the contemporary history of the state that ever since the lastmentioned act became a law the people of the state have given to its provisions (in connection with that before quoted from the act of 1873) the effect of establishing a system of local option; and that, accordingly, ever since 1874, the annual election of commissioners of excise in the towns has been made the occasion of an expression at the polls of the sentiment of the town for or against the granting of license for the sale of liquor. This has been done by each elector's casting his vote in favor of commissioners known and understood to be respectively in favor of or opposed to the granting of license. And thus "local option" everywhere, and "local prohibition" wherever the expressed will of the electors has demanded it, have come to be accomplished facts in this state, known of all men. It would seem, therefore, to be something like an impeachment either of the good faith or of the good sense of the legislature of 1892 to suppose that in re-enacting section 6 of the act of 1873— especially with the significant omission of the qualification above mentioned-it did not intend to recognize the existing, actual, and practical system of local option which had been in force throughout the state for nearly a score of years. If we assume that such was the intention of the legislature, then, under the system of local option thus recognized and sanctioned, it was the right of the electors of the town of Randolph to exercise their choice in the election of no-license commissioners; and, having done so, the commissioners so elected were, as they have testified they felt themselves to be,— both legally and morally, bound to refuse all license to sell liquor in their town. This view of the meaning and effect of the provision quoted from the statute of 1892 has been maintained with much force in many cases at special term within the past year. See People v. Commissioners of Excise, (Sup.) 24 N. Y. Supp. 739; People