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defendant agreed to pay $12,500 for the property, but is escaping by a payment of $12,000.' He expected the plaintiff was to have $250 from the purchase price, but the judgment awards him nothing. Defendant knew that the plaintiff was the agent for the owner, and was dealing with him as such. At no time did the plaintiff become agent for the defendant.

The defendant had no legal interest in how much the plaintiff was to receive for his services; that was a question between him and the owner. Plaintiff's plan contemplated $12,000 for the owner and $500 for himself, making the lowest price at which he, as the owner's representative, was willing to sell the property. It is immaterial to the defendant whether the plaintiff or the owner has the $500. Knowing that the owner niust have $12,000, the plaintiff required that the defendant pay $12,500, thus arranging the compensation at $500. While an agent should not be guilty of falsehood, he has a certain right to commend his property. If plaintiff had turned over to the owner the entire proceeds of the sale less the regular commission, no actionable fraud would have been committed upon the defendant. The vendor frequently says he will not take any less than a price named, although he is willing and perhaps expects ultimately to take less. The agent may, in the same way, seek to secure the best price, and he owes the duty to his client ordinarily to obtain the best price available. He would not serve his client iaithfully by saying that the client asked $12,500, but would be willing to take $12,000.

The defendant urges that under Douglass v. Richards, 116 App. Div. 27, 101 N. Y. Supp. 299, plaintiff cannot recover. We do not so understand that case. There a partner bought property for a firm for $4,000, each partner contributing $2,000. On the plaintiff's false statement that the purchase price was $6,000, the defendant gave him a note for $1,000, and it was held that recovery could not be had upon this note. Here the plaintiff was not the defendant's agent, and was under no obligation to sell the property to him, except upon his own terms, and under the agreement between him and the owner had a right to obtain the best price he could. A misstatement of fact, so long as it actually did not affect the value of the property, is not actionable. For all that appears the property may be worth much more than the price agreed to be paid. The judgment should therefore be reversed upon the law and the facts, and judgment directed for the plaintiff for the amount of the check, with interest, and costs in both courts.

The court disapproves of the finding of fact that the plaintiff was the defendant's agent and that the check was obtained by false representations and was without consideration. All concur.

In re GRANT AVE. IN CITY OF NEW YORK.

(Supreme Court, Special Term, New York County. January 28, 1915.)

1. MUNICIPAL CORPORATIONS n385-IMPROVEMENTS—CHANGE OF GRADE

DAMAGES.

The right to recover damages to abutting owners by change of grade is statutory, such damages not being recovered at common law.

[Cd. Note.–For other cases, see Municipal Corporations, Cent. Dig. 88 925-928; Dec. Dig. Om385.] 2. MUNICIPAL CORPORATIONS Om 385 — PUBLIC IMPROVEMENTS CHANGE OF

GRADE-DAMAGES.

The rule prohibiting recovery of damages, by change of street grade, to buildings constructed with reference to maps previously filed, cannot be invoked, unless the map filed clearly and unmistakably indicated the grade of the street.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 925-928; Dec. Dig. On385.)

Proceeding by the City of New York to acquire land for street purposes. Application by Frederick and Anna Jelinek, as landowners, for confirmation of report of commissioners of estimate and commissioner of assessment, opposed by the city. Report confirmed.

John R. McMullen, of New York City, for applicants.

Frank L. Polk, Corp. Counsel, of New York City, for City of New York.

Philip B. La Roche, Jr., of New York City, for J. H. Cohen.

PENDLETON, J. This is an application for the confirmation of a report by commissioners of estimate and commissioner of assessment in a proceeding to acquire lands for street purposes. The city opposes the application on the ground that the commissioners have included in the awards damages to buildings not taken, but abutting on the streets and avenues proposed to be opened, caused by the change of the grade of such streets from the grade physically existing prior to these proceedings to the grade shown on the profile map approved by the board of estimate and apportionment in May, 1911, which is the map referred to in the resolution authorizing the acquisition of the property for and the opening and regulation of the proposed avenues.

[1] At common law damages occasioned abutting owners by a change of grade were not recoverable. Matter of Mayor, Perry Avenue, 118 App. Div. 874, 103 N. Y. Supp. 1069. The remedy is statutory. Section 980 of the Charter (Laws 1901, c. 466), governing proceedings for acquiring land for street and other purposes, provides that: "If the said commissioners of estimate

shall judge that any intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening, altering or improving such street or part of a street, they shall proceed to make, together with the other estimates and assessments required by law to be made by them, a just and equitable estimate and assessment of the loss and damage which will accrue, by and in consequence of such intended regulation, to the respective owners, lessees, parties and persons, respectively, entitled untc For other cases see same topic & KEY-NUMBEK in all Key. Numbered Digests & Indexes

or interested in the said building or buildings so to be injured by the said intended regulation; and the sums or estimates of compensation and recompense for such loss and damage shall be included by the said commissioners in their report."

The city contends that it has been established as a rule by Matter of Rogers Place, 65 App. Div. 1, 72 N. Y. Supp. 459, and other cases:

"That persons who erect buildings upon the line of a street after the filing of the map establishing the grade thereof are not entitled to recover damages done to their buildings in consequence of the subsequent relation of the street in accordance with the grade thus established"-citing Matter of Rogers Place, 65 App. Div. 1, 72 N. Y. Supp. 459; Matter of Opening East 187th Street, T8 Api). Div. 355, 79 N. Y. Supp. 1031; In re Parker Street (Avenue), N. Y. Law J. Aug. 20, 1912; Matter of West 172d Street, N. Y. Law J. Feb. 3, 1915.

The maps relied on were introduced in evidence. One was filed in 1889, and another map similar, so far as the present question is concerned, was filed in 1895. The buildings in question were constructed subsequent to the filing of both these maps, and the city contends that the commissioners, in view of the above alleged rule, erred in making any awards for damages to such buildings caused by the change of grade to conform to that shown in the profile map approved in May, 1911, above mentioned. Section 438 of the Charter of the City of New York provides for a city map or plan, of which the map filed in 1895 above mentioned is part, and further provides that such map may be changed by the board of estimate and apportionment. Section 970 of the Charter of the City of New York authorizes the city to take land for street purposes according to the city map and that the board may change the map. Under such provisions these proceedings were brought and the map of 1911 was adopted as part of the city map. As matter of fact the grades therein provided differ somewhat from the grades shown on the 1889 map and the 1895 map, so that the property holders could not in any view of the matter have had notice by reason of the latter two maps of all the grades to be made in this proceeding, and to that extent the rule claimed to have been laid down in the Rogers Place Case can have no application; but this point need not be dwelt on, in view of the conclusion arrived at, as hereinafter stated. The rule invoked by the city in the broad sense now contended for, if ever so broadly enunciated, has not received the unanimous support of the authorities. See Matter of Rogers Place, 65 App. Div. 1, 72 N. Y. Supp. 459, the original case; Matter of Opening East 187th Street, 78 App. Div. 355, 79 N. Y. Supp. 1031; Matter of Mayor, Tiffany Street, 84 App. Div. 525, 82 N. Y. Supp. 852; People ex rel. Bennett v. Dickey, 148 App. Div. 663, 133 N. Y. Supp. 221.

[2] It is unnecessary, however, to pursue further the questions thus raised, for in Matter of Mayor, Briggs Avenue, 84 App. Div. 312, 82 N. Y. Supp. 575, it was held that the rule prohibiting the recovery of an award for damages to buildings by the physical change in the grade could not be invoked, unless the map filed clearly and unmistakably indicated the grade of the street in question; that it was not sufficient, if left in doubt, or to be inferred from the grade of other streets, or from anything else. In that case the map filed was deemed

insufficient to apprise property owners of the grade established, and they were held entitled to awards. A comparison of the map there held insufficient with the maps filed in 1889 and 1895, and relied on in the case at bar, is certainly not in favor of the latter. They are equally open to the objections referred to in that case. This is conclusive of the question here involved.

It is suggested by the city that, if the maps of 1889 and 1895 are not sufficiently definite to give notice to property owners, they are not so for the purposes of an award; that is, as a basis for fixing the damages. It is not easy to see the force of this. As above pointed out, by duly authorized resolution the board of estimate and apportionment has approved a map showing a proposed grade for the streets to be opened under these proceedings, and it is this map or grade which is the basis upon which the awards have been made. There is no suggestion that this latter map, approved in 1911, is indefinite.

Report confirmed. The order may direct payment to claimants, instead of unknown owners, where the corporation counsel consents. Settle order on notice.

(166 App. Div. 357)

FRISCHI V. DUSSAULT.

(Supreme Court, Appellate Division, Third Department. March 3, 1915.) Costs 222-ON APPEAL.

Under Code Civ. Proc. $ 3070, providing, relative to appeals from Justice Court for a new trial in the County Court, that, if neither party makes an offer of judgment, the party in whose favor the verdict, report, or decision is given shall be entitled to recover his costs upon the appeal, where no offer of judgment was made on an appeal from a City Court, and plaintiff recovered less than $50, he was entitled to costs, notwithstanding section 3228, providing that, in actions other than those expressly specified therein, in which the complaint demands judgment for a sum of money only, plaintiff is not entitled to costs, unless he recovers $50 or more. [Ed. Note.-For other cases, see Costs, Cent. Dig. $ 833; Dec. Dig.

222.] Appeal from Schenectady County Court.

Action by Joseph Frisch against Ernestina Dussault. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before SMITH, P. )., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Miller & Golden, of Schenectady (Arthur S. Golden, of Schenectady, of counsel), for appellant.

Ralph J. & Alvin Ury, of Schenectady, for respondent.

JOHN M. KELLOGG, J. But one question is raised upon this appeal. The plaintiff recovered judgment in the City Court of Schenectady for $25. Defendant appealed to the County Court for a new trial

, upon which the plaintiff recovered judgment for $21.50. Neither party made any offer of judgment, as provided by section 3070 For other cases see same topic & KEY-NUMBER in all key-Numbered Digests & ludexes

of the Code of Civil Procedure. The County Court awarded costs to the plaintiff.

The defendant claims that the plaintiff, not having recovered $50 damages in the County Court, under section 3228 of the Code of Civil procedure, is not entitled to costs. Section 3070 of the Code of Civil Procedure reads:

“If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover his costs upon the appeal."

The County Court properly held that the plaintiff was entitled to costs. Lawson v. Speer, 91 App. Div. 411, 86 N. Y. Supp. 915; Pierano v. Merritt, 148 N. Y. 289, 42 N. E. 718.

The judgment should therefore be affirmed, with costs. All concur.

DAVIDSON V. DUNHAM et al.

(Supreme Court, Equity Term, Erie County, February, 1915.) 1. INJUNCTION 128—ENFORCEMENT OF RESTRICTIVE COVENANTS-EVIDENCE.

In an action to restrain violation of covenant to use premises for residence purposes only, evidence as to sale, resale, mortgage foreclosures, etc., with and without restrictive covenants, in the same block, all the lots of which were to have been sold with restrictive covenants, held to show that the covenants were not mutual, and were unenforceable.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 278; Dec.

Dig. Om 128.] 2. COVENANTS Om51-RESTRICTIVE BUILDING COVENANTS-MUTUALITY.

The validity of restrictive building covenants that lots in a certain block were to be used for residence purposes only depended upon their being mutual.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. § 50; Dec. Dig. ww51.) Action by Walter V. Davidson against Frederic G. Dunham and another, to restrain defendant's violation of covenant to use certain premises for residence purposes only. Complaint dismissed.

See, also, 159 App. Div. 207, 144 N. Y. S. 489.
Horton & Grandison, of Buffalo, for plaintiff.

J. E. Finegan, of New York City, and Frederic G. Dunham, of Albany, for defendants.

BROWN, J. [1] At the time defendants' predecessor, Abby L. Dunham, acquired her title to lot 36a, April 25, 1890, lots 41 and 42 were held by Charles J. Ritter, to whom conveyance was made March 31, 1890, by Thorne & Angell, by deed that did not contain restrictions, and lot 40 was owned by Charles E. Rislay, to whom conveyance was made March 31, 1890, by Thorne & Angell, and that did not contain restrictions. On that date, April 25 1890, all other lots in block A were owned by Thorne & Angell under restrictions. Charles J. Ritter and Ch: les E. Rislay were told by Thorne & Angell on Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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