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the water is collected, or as owner or proprietor of the land from which the water is drawn.

Those cases which have been reported since the Smith Case was decided by this court have not added to the strength of the defendant's position. So far as there has been expression, their tendency, we think, is to support the view which we have heretofore taken, and now take, even though they mostly involved the construction of special statutes. U. S. v. Alexander, 148 U. S. 186, 13 Sup. Ct. 529, 37 L. Ed. 415; Proprietors of Mills v. Braintree Water-Supply Co., 149 Mass. 478, 21 N. E. 761, 4 L. R. A. 272; Bailey v. Woburn, 126 Mass. 416; Wheelock v. Jacobs, 70 Vt. 162, 40 Atl. 41, 43 L. R. A. 105. Wherever the rights of adjoining landowners have been concerned, the old rule of the absence of correlative rights has been asserted. But these cases do not apply where the right sought to be exercised is not that of the use of the land, except for the specific purpose, either intentionally or necessarily, of drawing such water from an adjoining owner. We are impressed with the importance of the question which we are now deciding, as we are aware that it materially affects the city of New York, especially in the borough of Brooklyn, in connection with its source of water supply, and creates much embarrassment in the present source and expense of the future supply. But, bearing all of these questions in mind, we are not able to bring ourselves to the conclusion that the greatest necessity can work a rule of law which operates to the destruction, without compensation, of property rights of individuals, in order that this municipality may have a water supply. We can readily see why the rights of landowners must be made to yield to the necessities of this multitude of people, but we are unable to find any principle of law through which such landowner is required or compelled to sacrifice his property rights for the benefit of the multitude who require it. It seems to us that a law which works such a result would be a gross invasion of property rights, and ought not to find countenance with the courts.

For these reasons, we think the judgment should be affirmed. All

concur.

WARREN v. UNION RY. CO. OF NEW YORK.

(Supreme Court, Appellate Division, First Department. January 5, 1900.) STREET RAILROADS-NEGLIGENCE-DISMISSAL OF COMPLAINT.

Plaintiff's evidence tended to establish that he was seated in a grocery wagon, the back and sides of which were inclosed by oilcloth curtains, and was driving along a certain street, each side of which was either out of repair, or incumbered with rubbish, so that the passable part of the roadway ran so close to defendant's car tracks that the wheels of plaintiff's wagon nearest the track were only about a foot from it; that while so driving along said roadway a car of defendant came up rapidly from behind, without warning, and struck plaintiff's wagon, throwing it over and seriously injuring him. Held, that a dismissal of the complaint at the close of plaintiff's testimony was error.

Appeal from trial term, New York county.

61 N.Y.S.-64

and 95 New York State Reporter.

Action by Richard Warren against the Union Railway Company of New York. Judgment for defendant, and plaintiff appeals. Re versed.

Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

E. A. Taliaferro, for appellant.
Alfred Lauterbach, for respondent.

RUMSEY, J. The action was brought to recover damages for injuries suffered by the plaintiff because of a collision between the wagon on which he was riding and a car of the defendant. The evidence would have warranted the jury in finding: That the plaintiff, seated in a grocery wagon, the back and sides of which were inclosed by oilcloth curtains, was driving along White Plains avenue, in the city of New York. The defendant's track was laid in the center of the street. Each side of the street was either out of re pair, or incumbered with rubbish, so that the passable part of the roadway ran so close to the defendant's track that the wheel of the plaintiff's wagon nearest the track was only about a foot from it. As he was driving in that place, a trolley car of the defendant came up rapidly from behind, without any warning, struck the wagon in which the plaintiff was sitting, threw it over, and inflicted serious injury upon him. At the conclusion of the plaintiff's evidence, which tended to establish the foregoing facts, the complaint was dismissed by the trial court. This is clearly error, within the principles established in the case of Rooks v. Railroad Co., 10 App. Div. 98, 41 N. Y. Supp. 824. A few of the rulings of the court with regard to the admission of evidence, which were excepted to, were erroneous; but, in view of the conclusion we have reached as to the merits, it is not necessary to consider these separate rulings.

The judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

VAN PELT v. CHAPTER GENERAL OF AMERICAN KNIGHTS OF ST. JOHN AND MALTA.

(Supreme Court, Appellate Division, Second Department. January 9, 1900.)

1. TRIAL-AMENDMENT-SURPRISE.

It is not error to permit plaintiff to amend her complaint, at the time of trial, in a particular which does not materially change the cause of action, where it is not claimed that it was a surprise to defendant.

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The supreme court will not, on appeal, interfere with a verdict rendered on conflicting evidence.

Appeal from trial term, Westchester county.

Action by Gussie Van Pelt against the Chapter General of American Knights of St. John and Malta. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

John H. Burchell, for appellant.
George C. Appell, for respondent.

GOODRICH, P. J. The action is brought by the widow of George C. Van Pelt on a certificate of his membership in the defendant corporation, which certificate was issued in the course of its business of fraternal life insurance. The plaintiff was named as beneficiary in the certificate. An amendment of the complaint was allowed at the trial, over the objection and exception of the defendant, which requires no consideration, as it did not materially change the cause of action, and as there was no suggestion that it was a surprise to the defendant.

The question litigated at the trial was whether Van Pelt, in his application, falsely represented his physical condition by stating that he had no disease of the lungs, and never had been afflicted with spitting or raising of blood. The certificate was issued February 12, 1897, and Van Pelt died November 23, 1897. The proofs of death and the evidence show that he died of pulmonary tuberculosis. The attending physician, Dr. Weiss, stated in the proofs that he did not know how long Van Pelt had been suffering from the disease. The defendant demanded a new answer to the question, and the physician made the same reply. A witness on the part of the defendant testified that the plaintiff told him before her husband's death that her husband "had hemorrhages, but these now were not so severe as three years before." The plaintiff positively denied any such conversation, but stated that he did have hemorrhages four or five months before his death, and not before that time. This question was fairly submitted to the jury, and with their verdict we see no reason to interfere. The judgment and order should be affirmed. Judgment and order affirmed, with costs. All concur.

(29 Misc. Rep. 477.)

LOWENSTEIN et al. v. SCHIFFER et al.

(Supreme Court, Special Term, New York County. November, 1899.) APPEAL-STAY-OTHER ACTION PENDING.

Surviving partners sued the executors of a deceased partner, and asked, either that they be permitted to purchase decedent's interest according to the co-partnership articles, or that a subsequent agreement between the parties be enforced. The executors afterwards sued the survivors on the agreement, but alleging the property was worth a much larger sum than that fixed by the survivors. Judgments in both actions were reversed,in the latter because of error of the referee in determining decedent's interest, and in the former because a new trial had been ordered in the other. The executors appealed from the order in the survivors' action to the court of appeals, stipulating for judgment absolute in case of affirmance. On retrial of the executors' action, the survivors moved to stay proceedings till the decision in the other case. Held, that the stay would not be granted, since the determination of the other case would not settle the controversy, reversal of the pending appeal operating only to dismiss

and 95 New York State Reporter.

Action by Richard Warren against the Union Railway Company of New York. Judgment for defendant, and plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

E. A. Taliaferro, for appellant.
Alfred Lauterbach, for respondent.

RUMSEY, J. The action was brought to recover damages for. injuries suffered by the plaintiff because of a collision between the wagon on which he was riding and a car of the defendant. The evidence would have warranted the jury in finding: That the plaintiff, seated in a grocery wagon, the back and sides of which were inclosed by oilcloth curtains, was driving along White Plains avenue, in the city of New York. The defendant's track was laid in the center of the street. Each side of the street was either out of repair, or incumbered with rubbish, so that the passable part of the roadway ran so close to the defendant's track that the wheel of the plaintiff's wagon nearest the track was only about a foot from it. As he was driving in that place, a trolley car of the defendant came up rapidly from behind, without any warning, struck the wagon in which the plaintiff was sitting, threw it over, and inflicted serious injury upon him. At the conclusion of the plaintiff's evidence, which tended to establish the foregoing facts, the complaint was dismissed by the trial court. This is clearly error, within the principles established in the case of Rooks v. Railroad Co., 10 App. Div. 98, 41 N. Y. Supp. 824. A few of the rulings of the court with regard to the admission of evidence, which were excepted to, were erroneous; but, in view of the conclusion we have reached as to the merits, it is not necessary to consider these separate rulings.

The judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

VAN PELT v. CHAPTER GENERAL OF AMERICAN KNIGHTS OF ST. JOHN AND MALTA.

(Supreme Court, Appellate Division, Second Department. January 9, 1900.) 1. TRIAL

AMENDMENT-SURPRISE.

It is not error to permit plaintiff to amend her complaint, at the time of trial, in a particular which does not materially change the cause of action, where it is not claimed that it was a surprise to defendant.

2. APPEAL-VERDICT-CONCLUSIVENESS.

The supreme court will not, on appeal, interfere with a verdict rendered on conflicting evidence.

Appeal from trial term, Westchester county.

Action by Gussie Van Pelt against the Chapter General of Ameri can Knights of St. John and Malta. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

John H. Burchell, for appellant.
George C. Appell, for respondent.

GOODRICH, P. J. The action is brought by the widow of George C. Van Pelt on a certificate of his membership in the defendant corporation, which certificate was issued in the course of its business of fraternal life insurance. The plaintiff was named as beneficiary in the certificate. An amendment of the complaint was allowed at the trial, over the objection and exception of the defendant, which requires no consideration, as it did not materially change the cause of action, and as there was no suggestion that it was a surprise to the defendant.

The question litigated at the trial was whether Van Pelt, in his application, falsely represented his physical condition by stating that he had no disease of the lungs, and never had been afflicted with spitting or raising of blood. The certificate was issued February 12, 1897, and Van Pelt died November 23, 1897. The proofs of death and the evidence show that he died of pulmonary tuberculosis. The attending physician, Dr. Weiss, stated in the proofs that he did not know how long Van Pelt had been suffering from the disease. The defendant demanded a new answer to the question, and the physician made the same reply. A witness on the part of the defendant testified that the plaintiff told him before her husband's death that her husband "had hemorrhages, but these now were not so severe as three years before." The plaintiff positively denied any such conversation, but stated that he did have hemorrhages four or five months before his death, and not before that time. This question was fairly submitted to the jury, and with their verdict we see no reason to interfere. The judgment and order should be affirmed. Judgment and order affirmed, with costs. All concur.

(29 Misc. Rep. 477.)

LOWENSTEIN et al. v. SCHIFFER et al.

(Supreme Court, Special Term, New York County. November, 1899.) APPEAL-STAY-OTHER ACTION PENDING.

Surviving partners sued the executors of a deceased partner, and asked, either that they be permitted to purchase decedent's interest according to the co-partnership articles, or that a subsequent agreement between the parties be enforced. The executors afterwards sued the survivors on the agreement, but alleging the property was worth a much larger sum than that fixed by the survivors. Judgments in both actions were reversed,— in the latter because of error of the referee in determining decedent's interest, and in the former because a new trial had been ordered in the other. The executors appealed from the order in the survivors' action to the court of appeals, stipulating for judgment absolute in case of affirmance. On retrial of the executors' action, the survivors moved to stay proceedings till the decision in the other case. Held, that the stay would not be granted, since the determination of the other case would not settle the controversy, reversal of the pending appeal operating only to dismiss

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