* * *

ground," thence running "along said highway," and returning a specified number of feet "to the highway aforesaid at the point of beginning." The length of the front of the premises along the highway in this deed is stated to be 1,607 feet. The second deed to Mrs. Duryea that is, the deed from Tompkins-also describes the property as being on the northerly side of the highway, "beginning at a locust stake, and running along the northerly side of the Babylon turnpike forty-one and seven-tenths feet," etc., returning a given number of feet "to the place of beginning." Thus, in each of the deeds to Mrs. Duryea, the grantor of the plaintiff, there is a fixed and definite point marked by a locust stake on the easterly or northerly side of the highway as a monument at which the description commences and to which it returns. The use of this locust stake as a monument, in connection with the other words of the description above quoted, would seem to manifest the intention of the grantors that such stake, and not the center of the highway, should be the monument of the description (see Bank v. Nichols, supra), and thus to exclude the highway from the land conveyed by such deeds.

There are no previous deeds in evidence. It is not shown that either Morrell or Tompkins, Mrs. Duryea's grantors, ever had any title to the highway, or any reserved right therein. The mere recital of the reservation of rights cannot create rights which are not proven to exist. It was incumbent on the plaintiff to prove by going back, even to the original patentee or donee, that at some time some one of his predecessors had title to the land under the highway. Miller v. Railroad Co., 71 N. Y. 380. In the present case the plaintiff has failed to prove that his grantor or any predecessor in title ever had any rights in the highway. In addition to this, as shown in a calculation set out in the respondent's brief, the accuracy of which is not challenged in the appellant's answering brief, the amount of land included in the description, according to lines and courses, is 23.35 acres, which is the amount of land stated to be conveyed in the latter part of the description in the plaintiff's deed. This area excludes the highway. The inclusion of the highway would add an acreage of 1.14, making in all 24.49 acres; and this exceeds the amount named in the deed. This method of referring by way of explanation to the quantity of land called for by the courses and distances named in a deed was used by the court in Higinbotham v. Stoddard, 72 N. Y. 94, referred to in Watson v. City of New York, 67 App. Div. 573, 73 N. Y. Supp. 1027, where the court, Mr. Justice Hatch writing, said (page 580, 67 App. Div., and page 1032, 73 N. Y. Supp.):

"Where a specific quantity of land is located by precise measurements, such measurements may be laid hold of as evidencing the intent of the parties, and will be controlling of the center of the street as a monument, when it appears that the quantity of the land within such boundary evidently answers to the intention of the parties."

There is no evidence, therefore, upon which to sustain the contention of the plaintiff that his grantor, Mrs. Duryea, was, or that he is, the owner of the fee of the easterly half of the highway.

As an abutter the plaintiff is not entitled to an injunction restrain

and 112 New York State Reporter

Forbes v.

ing the construction of a railroad authorized by the state. Railroad Co., 121 N. Y. 505, 24 N. E. 919, 8 L. R. A. 453; Case v. Cayuga Co., 88 Hun, 59, 34 N. Y. Supp. 595; Fries v. Railroad Co., 169 N. Y. 270, 62 N. E. 358. In the last case it was said (pages 276, 277, 169 N. Y., and page 359, 62 N. E.):

"The law is well settled in this state that, where the property of an abutting owner is damaged, or even his easements interfered with, in consequence of the work of an improvement in a public street conducted under a lawful authority, he is without remedy or redress, even though no provision for compensation is made in the statute. Whatever detriment the improvement may be to the abutter in such cases is held to be damnum absque injuria. [citing cases.]"

It follows that the plaintiff has not established by evidence any title to or possession of the easterly half of the highway, and is not entitled to an injunction or to the relief demanded. The judgment should be affirmed.

Judgment affirmed, with costs. All concur.

(76 App. Div. 143.)

PEOPLE ex rel. GROUT, Comptroller, v. STILLINGS et al. (Supreme Court, Appellate Division, First Department. November 21, 1902) 1. CERTIORARI-APPLICATION-Judge at CHAMBERS.

Code Civ. Proc. § 2127, provides that the writ of certiorari may be granted at the appellate division or at special term, and section 770 provides that in the First district motions that elsewhere must be made in court may be made to a judge out of court, except motions for a new trial on the merits. Held, that in the First district an application for certiorari may be made to a judge at chambers.

2. SAME-ENTRY ON MINUTES.

Where a writ of certiorari is allowed by a judge at chambers in the First district, it is the act of the court, and should be entered on the minutes by the clerk.

3. SAME FAILURE TO ENTER-EFFECT.

Failure to enter allowance of a writ of certiorari on the minutes of the court does not invalidate the writ.

4. STREETS-CHANGE OF GRADE-CLAIM FOR DAMAGES-LIMITATIONS-VALIDITY. The provision of Laws 1894, c. 567, limiting the time in which claims for damages from the change of grade of a street may be made, is not invalid, since the property owner had no remedy at common law. 5. SAME WHEN BEGIN TO RUN.

Laws 1893, c. 537, § 2, provided claims for damages for the change of grade of a street should be filed within six months after the first public meeting of the commissioners thereunder. Act 1894, c. 567. amended the act of 1893, re-enacting all its provisions, with additional ones. The clause relative to the time for filing claims was re-enacted The act of 1893 limited the claims to those from changes of grade made under Laws 1887, c. 721, while the act of 1894 extended the claims to damages from changes under various other statutes. The act of 1894 authorized claims for future damages, which the act of 1893 did not. The act of 1893 provided the evidence should be submitted within one year; the act of 1894 made it four years. Held, that it was evidently the legislative intent to authorize the filing of new claims after the act of 1894, and where there had been meetings of the commissioners

1. See Certiorari, vol. 9, Cent. Dig. § 101.

before the act of 1894, which meetings were continued under the latter act, limitations did not run against the filing of a claim from the first meeting under the act of 1893, but ran from the first meeting held pursuant to the act of 1894.

Van Brunt, P. J., dissenting.

Certiorari by the people, on the relation of Edward M. Grout, as comptroller of the city of New York, against William E. Stillings and others, as commissioners, etc., and Nelson Smith, Jr., claimant, to review an award of damages to land by reason of the change of grade of a street. Award confirmed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Robert C. Beatty, for relator.

Nelson Smith, for respondents.

LAUGHLIN, J. The writ of certiorari was issued to review an award made to Nelson Smith, Jr., by commissioners appointed under chapter 537 of the Laws of 1893 and chapter 567 of the Laws of 1894. The claimant is the owner of premises fronting on the easterly side of Brook avenue between 161st and 162d streets, and known as "Block No. 1,348," and "Ward Nos. 3 and 24." The damages were caused by the elevation of the grade of Brook avenue in front of these premises. We are not asked to review any question with respect to the admission or rejection of evidence.

The first question to be considered relates to the validity of the writ. The respondents claim that it is void, because not issued by the court. Code Civ. Proc. § 2127, provides that the writ of certiorari must be granted at the appellate division or at special term; but in the First district it is provided that motions that elsewhere must be made in court may be made to a judge out of court, except motions for new trials on the merits. Id. § 770. The writ does not expressly show on its face that it was granted at special term, but the clerk certifies that it was issued "by the court,' and it is indorsed as allowed by one of the justices of the supreme court. We think the application for the writ in the First judicial district might be made to a judge at chambers; but it is the act of the court nevertheless, and it should be entered in the minutes of the clerk. The failure to make such entry, however, would not invalidate the writ.

The only question which the relator presents relates to the jurisdiction of the commissioners to act upon this claim, his contention. being that the claim was not filed within the time required by law. The claimants were without a remedy at common law. Heiser v. Mayor, etc., 104 N. Y. 68, 9 N. E. 866; People v. Lord, 24 App. Div. 137, 48 N. Y. Supp. 1065; Id., 155 N. Y. 661, 49 N. E. 1102. It was, therefore, competent for the legislature, in authorizing the recovery of damages, to prescribe a limitation of time within which claims should be filed. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792; Curry v. City of Buffalo, 135 N. Y. 366, 32 N. Ë. 80. Section 2 of the act of 1893 required that claims for such damages should be filed with the comptroller, and a duplicate thereof with the corporation counsel, "within six months after the first public

and 112 New York State Reporter

meeting of the commissioners appointed thereunder." The first public meeting of the commissioners appointed under that act was held on the 7th day of June, 1893. The claim was not filed with the comptroller and corporation counsel until the 18th day of December, 1894. It was too late, therefore, if the act of 1893 governs. The act of 1894 took effect on the 9th day of May, 1894. It was in form an amendment of the act of 1893, and re-enacted all of its provisions, with additional provisions incorporated therein. The clause relating to the time of filing claims was re-enacted without change. The commissioners published a notice dated September 2, 1893, in the City Record, pursuant to the requirements of the statute, stating that they would hold regular meetings three times a week on the days and at the hour and place specified "until further notice." At the time the act of 1894 became of force, the commissioners were holding regular sessions pursuant to this notice, which was republished from time to time in the City Record. Such sessions were held on the 9th, 11th, 14th, 16th, 21st, 25th, and 29th days of May and the 1st and 11th days of June, 1894. The commissioners were reappointed by the mayor, under the act of 1894, on the 8th day of June, 1894, and on the 15th of the same month new oaths of office, which they had taken, were filed with the county clerk. On the last-mentioned day they caused a notice signed by them, dated June 13, 1894, to be published in the City Record, that, "pursuant to the provisions of chapter 567 of the Laws of 1894, entitled [quoting the title in full], notice is hereby given that public meetings of the commissioners appointed under said act" would be held on Monday, Wednesday, and Friday of each week, at a time and place therein specified, “until further notice." The first public meeting held by the commissioners pursuant to this notice was on the 18th day of June, 1894. Counsel for the claimant contends that the statute of limitations did not commence to run until the 18th day of June, 1894, when the first public meeting of the commissioners was held pursuant to the formal notice given by them under the act of 1894, and, if his contention be well founded, manifestly the claim was timely filed, for it was filed on the last day of such six-months period. The relator's claim is twofold: First, that the statute of limitations commenced to run from the date of the first public meeting of the commissioners held under the act of 1893, and that, therefore, the time for filing claims expired on the 7th day of December, 1893,-long prior to the enactment of the amendment of 1894; and, second, that, even if the amendment of 1894 be controlling, the public hearing to which it relates is the first public hearing held by the commissioners after the amendment of 1894 took effect, which, as has been seen, was held on the same day the act took effect. It thus appears that, if either of the contentions of the relator be tenable, the claim was filed too late. The act is remedial, and it should receive a liberal construction, to accomplish the manifest object of the legislature. People v. Zoll, 97 N. Y. 203; People v. Fitch, 147 N. Y. 355, 41 N. E. 695. Counsel for the relator contends for the construction that the statute of limitations speak from the date of the original act, and he cites as authority for this proposition the case of Ely v. Holton, 15 N. Y. 595, and kindred cases follow

ing and applying the doctrine of that case, wherein the rule is laid down, with reference to statutes re-enacted, "so as to read as follows," that:

"The portions of the amended sections which are merely kept without change are not to be considered as repealed and as re-enacted, but to have been the law all along; and the new parts or changed portions are not to be taken to have been the law at any time prior to the passage of the amendment. * * The portions of the sections which are repeated are considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect. In short, we attribute no effect to the plan of dovetailing the amendment into the original section, except the one above suggested, or preserving a harmonious text, so that, when future editions shall be published, the scattered members shall easily adjust themselves to each other."

The doctrine of this case, when properly understood, is sound. The point decided was that where, at the time an order for a new tria! was granted, no appeal to the court of appeals was authorized by the Code, a subsequent amendment to the Code, authorizing appeals in such cases, would not relate back, so as to authorize an appeal where no appeal could be taken when the order was granted. The court held that the added provisions spoke from the time of their enactment, and not from the time of the original enactment of the sections of the Code into which they were incorporated. Other leading cases cited as applying this doctrine are In re Warde, 154 N. Y. 342, 48 N. E. 513, Moore v. Mausert, 49 N. Y. 332, and Gibbs v. Insurance Co., 63 N. Y. 114, 20 Am. Rep. 513. While these cases hold that the old provision which is re-enacted is not deemed repealed, but is deemed to have remained in force as matters arising in the interim, they fall far short of holding that the re-enacted provisions do not speak as of the time of their re-enactment as to matters arising in the future. Manifestly, those authorities are not controlling in the case at bar. There is another rule of statutory construction which we think is applicable here, and it is well stated in the case of People v. Supervisors, 67 N. Y. 109, 118, 23 Am. Rep. 94, by Allen, J., as follows:

"With us the enactment of a statute or a part of a statute, making the same read as prescribed by the amendatory statute, thus incorporating all that is deemed desirable to be retained of the old law in the new, is not regarded as a repeal of the parts thus transferred, but from the time of the enactment of the new statute the whole force of the enactment rests upon the latter statute. Although the former act remains upon the statute book, and is not repealed, either expressly or by implication, it is no longer the law of the land in respect to new cases that may arise."

This decision was cited with approval in People v. Wilmerding, 136 N. Y. 363, 368, 32 N. E. 1099, where Judge Peckham, speaking for the court, and referring to it, says:

"It was there distinctly decided that an earlier statute, which was amended and re-enacted in the shape of an amendment so as to read as prescribed in the later amendatory statute, was thereby wholly annulled as to all future cases, and became merged and incorporated into the later statute. It was further held that, when a statute accomplishing an amendment in this manner is itself repealed, the repealing act as effectually annihilates the earlier act which was amended as if it had been expressly mentioned in such repealing act."

78 N.Y.S.-60