Columbia; that the affixing of|
their signatures by the maker and
indorser were simply details in the
performance and execution of the
contract which was consummated
when the note was received by
plaintiff; that the naming of a
New York bank as & place of pay-
Iment did not characterize it as a
New York contract; and that
while the engagement of the in-
dorser was, in a sense, inde-
pendent of that of the maker, this
did not affect the local character
of the contract. Staples v. Nott.
403

dents of this state," the power of
the surrogate is not limited to
requiring a bond not exceeding
twice the amount appearing to be
due to residents. In re Prout. 70

2. Said provision was intended to
give the surrogate a discretion to
modify the general rule (2667),
which requires a bond in a penalty
not less than twice the value of
the personal property and to ac-
cept one less in amount if, by rea-
son of adequate security having
been already given, additional se-
curity for the protection of the
general interests is not in his
judgment required, or where the
next of kin have consented to
waive security, and in the case of
domestic creditors, where their
protection was the only interest
involved, to prescribe a limit be-
yond which security should not be
exacted.

See UNDERTAKING.

BOUNDARIES.

Id.

Where a highway is the dividing
line between the lands of two ad-
joining proprietors, each owning
to the center, and one of them con-
veys, bounding the lands along or
upon the highway, in the absence
of an express reservation in the
deed, of his property in the high-
way, the deed conveys the fee to
the center, subject to the public
easement. Haberman v. Baker, 253

2. Where the grantor owns the fee of
the soil of the whole highway, in
the absence of facts raising a pre-
sumption of a contrary intent, the
presumption is that the grantor
intended to and the conveyance
will be deemed to convey the fee
Id.
of the whole highway.

3.

In either case, where by the aban
donment of public easement the
highway ceases to exist, the land
comprising it reverts to the pri-
mary condition of ownership and
of use, and becomes a parcel of
the adjoining property, and the
grantee is entitled to the posses-
sion of that portion conveyed by
his deed.
Ià.

4 Where, therefore, certain lands in
the city of New York were con-
veyed, bounded on the westerly
side by an old road, title to the
center whereof was in the grantor,
and on the north by a road leading
eastwardly from the other, title to
the whole of which was in the
grantor, and where, in the subse-
quent laying out and opening of
city streets, the public use of pieces
or gores of land, parts of the old
road included in said titles, was
abandoned, held, that the right to
such use reverted to the successor
in title to said grantee; that he had
a full title to and right to convey
the land bounded by the new
streets; and so, was entitled to a
judgment requiring a specific per-
formance of a covenant for the
purchase thereof.
Id.

5. It seems, the rule is different where
the description in a deed bounds
the land by the side of the high-
way, or where there is a city street
the title to which is in the munici-
pality.
Id.

BUFFALO (CITY OF).

1. Prior to 1875 plaintiffs owned cer-
tain premises on W. street in the
city of Buffalo, their title extend-
ing to the centre of the street,
subject to the public easement.
In that year said city acquired by
condemnation the title to a large
number of its streets, including
W. street, a uniform and nominal
award of damages being paid to
each of the owners, including plain-
tiffs. The city charter confers
upon its common council power
to alter the grade of streets and
to "permit the track of a railroad
to be laid in, along or across any
street or public ground." (Laws
1870, chap. 519, tit. 9. 1, 2, 6;
tit. 3, § 19.) In 1882 said com-
mon council granted to defendant,
a steam railroad corporation, the
right to construct and maintain
two tracks along the centre of W.
street.

2. Also held, that the action of the
common council in authorizing
the construction of the embank-
ment was not a change of grade
within the meaning of the charter,
and, therefore, the provision of the
charter that when the city shall
alter the recorded grade of any
street or alley, the owner of any
house or lot fronting thereon may,
within one year thereafter, claim
damages by reason of such altera-
tion" (Tit. 9, § 17), did not apply
so as to confine the plaintiffs to a
remedy against the city.

Id.

3. Also held, that while the authority
conferred by the General Railroad
Act (Chap. 140, Laws of 1850, § 24)
upon railroad corporations to cross
highways in the construction of
their lines, authorizes their con-
struction on, over or below the
highway grade, and so, to make
such incidental changes of the
grade as may be rendered neces-
sary, without giving a right of
action to abutting owners who
sustain injury, the change here
made did not come within that
authority.
Id.

CANALS.

1. It seems, that the state in submit-
ting itself to the jurisdiction of a
tribunal, with respect to claims
against it for damages sustained
by reason of any accident occurring
on its canals, or connected with
their care and management, sub-
jected the determination of its lia-
bility to the government of those
ruk 3 which usually obtain in simi-
lar cases. Gates v. State. 221

Under the provision of the act of
1870 (Chap. 321, Laws of 1870),
conferring upon the board of canal
appraisers jurisdiction to hear and
determine claims against the state

88

for injuries alleged to have been
sustained by reason of the canal,
which requires the proceeding to
be initiated by the filing of the
claim in the office of the appraisers,
there must have been a delivery
by or on behalf of the party of his
claim at the office itself to consti-
tute and enable him to allege and
establish the jurisdictional fact of
a filing; proof of the directing and
mailing of a statement of the claim
to the canal appraisers is not suffi
cient.
Id.

3. The jurisdiction of said board be-
ing limited and special, no pre-
sumption will be entertained in
support of it, but the fact confer-
ring it must affirmatively and
conclusively appear.
ld.

4. A citizen who seeks to avail him-
self of the privilege to sue the state
must be held to strictness in pro-
cedure; this right being dependent
upon compliance with the terms
of the statute granting it jurisdic-
tion of his claim, can be acquired
only in the way prescribed.
Id.

5. The legislature has no authority
to confer jurisdiction upon the
Court of Claims to pass upon a
claim of an individual against the
state for injuries arising from the
canals, which claim had it arisen
between citizens, would be barred
by the Statute of Limitations.
(State Const. § 14, art. 7.)

Id.

quiry in regard to the purpose of
the appropriation, and after receiv
ing the testimony of witnesses,
found as a fact that the improve-
ment could not benefit the canal,
but would benefit the property of
individuals, and that the purpose
of the appropriation was not pub-
lic, but private. Held, error; that
the purpose expressed in the act
was public, and even if the ex-
penditure might be improvident
and the work useless to the public,
of its propriety and utility the leg-
islature was the judge; that it
could not be said that the state
authorities were not proceeding in
good faith, the more particularly
as the legislature in 1889 (Chaps.
461 and 493, Laws of 1889) reap-
propriated the money to the
same improvement, increasing the
amount. Waterloo W. Mfg. Co.
v. Shanahan.

345

7. It appeared that prior to the pass-
age of the act, the state had di-
verted the waters of said river into
the Cayuga and Seneca canal, and
so deprived riparian owners, on the
south side of the river, of its use.
Held, assuming that the court had
power to make the inquiry and
that the purpose of the act was
as was claimed by plaintiff, to re-
store a portion of the water so di-
verted to its original channel and
the use of said owners, the purpose
of the expenditure was public, not
private or local, within the mean.
ing of the Constitution, and so,
that the act was valid.
Id.

8. The court below also held the act
to be invalid, because the effect
was to take the plaintiff's property
for private purposes. This deter-
mination was based solely upon
the fact that the improvement
would divert from the canal and
restore to the channel of the river
water, the use of which plaintiff
had enjoyed without question for
more than twenty years, he having
no property right therein save as
acquired by such user. Held,
error; that the use by the "laintiff
of the water beyond whe it was
entitled to, however long con-
tinued, and whether adverse or by
permission, could not impair the
rights of the state: and that, so
long as the legal rights of the

2. So also, the right of an abutting
owner to maintain an action at law
or equity because of an invasion
of his rights in a public street by
the erection thereon of a structure
which impairs his easement therein
continues so long as he continues
to be the owner of the property,
without regard to the lapse of
time, provided the remedy is
claimed within the statutory
period of limitation applicable to
the legal right and before adverse
possession has barred his title. Id.

See FALSE IMPRISONMENT.

MALICIOUS PROSECUTION.
NEGLIGENCE.

SPECIFIC PERFORMANCE.
TRESPASS.

CHATTEL MORTGAGE.

1. The provisions of the act in refer-
ence to chattel mortgages (Chap.
279, Laws of 1833, as amended by
chap. 418, Laws of 1879), declaring
such a mortgage absolu'ely void
as to creditors of the mortgagor
unless filed and refiled as pre-
scribed, confers no title to the
mortgaged property upon the
creditors and they take no interest
by virtue of the act; its effect is
simply that in the cases mentioned,
as between the creditors and the
mortgagor, the mortgage has no
force and is to be treated as if it
had never existed. Tremaine v.
Mortimer.
1