199-211, 47 N. E. 298; People v. Gold & Stock Telegraph Co., 98 N. Y. 67. It is to be noted that this case neither presents the clash of provisions in the same statute, nor even the conflict of specific provisions in different statutes, but the application of provisions of general statutes which by construction in pari materia (Matter of Erbe, supra, 13 Misc. Rep. at page 407, 35 N. Y. Supp. 102) were held to apply to justices of the peace, whose powers are found as now vested in city magistrates by general expressions of continuance articulated in many statutes. And it is to be noted, also, that in the said statute of 1910 the jurisdiction conferred upon Courts of Special Sessions is not even limited by the words "except as otherwise provided in this title," which appeared in the similar statute construed in People v. McCarthy, supra. If the Legislature intended to confer jurisdiction upon the city magistrates or City Magistrates' Courts, there appears in the premises no good reason why it should not have followed the form used as to other offenses; i. e., affirmative declaration. For, not only did the Legislature specifically except libel in section 31, but in the same section it provides : "The court_shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases." And one of those cases is the violation of the Motor Vehicle Law, and another the violation of any law for the prevention of cruelty to animals-both minor offenses. See, too, section 72. And there are a number of minor offenses which, although misdemeanors, are specifically committed to the jurisdiction of a magistrate or his court. Section 95, Id.; chapter 659, Laws of 1910; chapter 464, Laws of 1914. There may be found good reasons why the provisions of the Revised Statutes relative to summary proceedings before justices of the peace relative to Sunday laws should not be repealed. Justices of the peace are constitutional officers provided for throughout the state. Section. 17, art. 6, of the Constitution. See, too, Town Law (chapter 63, Laws of 1909 [Consol. Laws, c. 62]) § 103; Village Law (chapter 64, Laws of 1909 [Consol. Laws, c. 64]) art. 7. And therefore in more sparsely settled parts of the state it seems entirely wise that there should be some officer who could deal summarily with such an offense as Sabbath breaking. [2] Although the offense is essentially rather against police regulations than a crime (Steinert v. Sobey, supra; People ex rel. Burke v. Fox, 205 N. Y. 490, 99 N. E. 147), and although it may be said that it is somewhat inconsistent with the general provisions of section 2 of the Penal Law to constitute an act, which is not a crime, a misdemeanor, nevertheless the fact is that the Legislature has seen fit to thus constitute it. Section 2142, Penal Law. It had the power so to do as to any act committed or omitted in violation of the public law forbidding or commanding it (Com. v. R. I. Sherman Manuf. Co., 189 Mass. 76, 75 N. E. 71, 4 Ann. Cas. 268), and this power can be limited by the Constitution only (People v. West, 106 N. Y. at page 295, 12 N. E. 610, 60 Am. Rep. 452). I think that the judgment must be reversed. All concur. (88 Misc. Rep. 698) DIME SAVINGS BANK OF BROOKLYN v. BUTLER et al. 1. QUIETING TITLE 34-ACTION TO DETERMINE ADVERSE CLAIM-PETITIONSUFFICIENCY AGAINST DEMURRER-EASEMENTS. Where the complaint, in an action brought under Code Civ. Proc. § 1638, 1639, to determine defendant's claim to a negative easement, or interest in the nature of an easement, after alleging that plaintiff was the owner of the fee, that it became possessed of same through foreclosure sale, and that for one year next preceding the action it had been in possession, further alleged that defendants "unjustly" made claim to an easement, or interest in the nature of an easement, in plaintiff's real property, such claim being that neither plaintiff nor its successors nor assignee could erect buildings on the premises, except as described in the complaint, it was not subject to a demurrer for failure to state a cause of action; the allegations that defendants' claim was unjust being sutticient to comply with the requirements of the statute. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 69, 71, 72, 76, 77; Dec. Dig. 34.] 2. QUIETING TITLE 21-DETERMINATION OF ADVERSE CLAIMS-Right of ACTION. An unjust claim to an easement in realty owned by plaintiff, must be adverse to his ownership, in order to give him a right of action under Code Civ. Proc. § 1638, to compel a determination of the claim. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 51-53: Dec. Dig. 21.] Action by the Dime Savings Bank of Brooklyn against Louise C. Butler and others. Demurrers to complaint overruled. Dykman, Oeland & Kuhn and Edgar M. Cullen, all of Brooklyn, for plaintiff. Gordon Knox Bell, of New York City, for defendant Bell. Butler, Brown, Wyckoff & Campbell, of New York City, for defendant Butler. Anderson & Anderson, of New York City, for defendant Brewster. Geller, Rolston & Horan, of New York City, for defendant Farmers' Loan & Trust Co. Samuel Hoff, of New York City, for defendant Liebman. Kurzman & Frankenheimer, of New York City, for defendants Kaskell and others. COHALAN, J. [1] Plaintiff brings this action to determine the claim of the defendants to a negative easement, or interest in the nature of an easement, in the premises at the southeast corner of Madison avenue and Seventy-Second street, in the borough of Manhattan. The complaint is framed under the provisions of sections 1638 and 1639 of the Code of Civil Procedure. The material allegations therein are: That the plaintiff is the owner in fee of the premises in question, that it became possessed of them through a judgment and sale in a foreclosure action, and that for one year next preceding the action it has been in possession of them. The plaintiff then alleges in paragraphs fifth and sixth of the complaint that the defendants unjustly For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes make claim to an easement, or interest in the nature of an easement, in the real property of the plaintiff; such claim being that neither the plaintiff nor its successors nor assigns can erect buildings on the premises, except as described in paragraph sixth of the complaint. The defendants respectively demur to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is novel and far-reaching in its scope. It proposes by one fell swoop to forever determine rights arising out of restrictive covenants in all real property within the block bounded by Madison avenue, Seventy-First street, Park avenue, and Seventy-Second street. However, I am of opinion that there is sufficient precedent to sustain the form and the substance of the complaint. St. Stephen's Church v. Church of the Transfiguration, 201 N. Y. 1, 94 N. E. 191, Ann. Cas. 1912A, 760. The objections to the complaint may be summarized as follows: (1) That the claims of the defendant are not adverse to the plaintiff; (2) that in an action under sections 1638 and 1639 of the Code the existence of a restrictive covenant cannot be determined; and (3) that insufficient facts are set forth in the complaint to show that the defendants unjustly claim an interest, easement, or incumbrance in the plaintiff's property. [2] An analysis of the complaint disposes of the first objection. It alleges in brief that the plaintiff is the owner in fee of the land, that the defendants unjustly claim an easement, and that the claim is unjust. The term "adverse" is used in section 1638 of the Code, and the above allegations comply with the requirements of section 1639. An unjust claim to an easement in real estate owned by another must be adverse to the ownership of such an owner. The second objection proceeds apparently upon the theory that a restrictive covenant cannot create an easement. The case of Trustees of Columbia College v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615, authoritatively disposes of this contention in these words: "The right sought to be enforced here is an easement, or, as it is sometimes called, an ‘amenity,' and consists in restraining the owner from doing that with, and upon, his property which, but for the grant or covenant, he might lawfully have done, and hence is called a negative easement, as distinguished from that class of easements which compels the owner to suffer something to be done upon his property by another. Wash. on Easements, 5. Easements of all kinds may be created and exist in favor of any third person, irrespective of any privity of estate," etc. If a property right in an owner is limited, of necessity that limitation takes from that owner a property right, which is lodged in somebody else. It follows that that somebody else has an easement, or an interest in the nature of an easement, in the property. The allegations in the complaint that the defendants' claim is unjust com ply sufficiently with the requirements of the Code. No further pleading in this respect is needed. King v. Townshend, 78 Hun, 380, 29 N. Y. Supp. 181; Ford v. Belmont, 69 N. Y. 567; Merritt v. Smith, 50 App. Div. 349, 63 N. Y. Supp. 1068; Vanderveer Crossings v. Rapalje, 133 App. Div. 203, 117 N. Y. Supp. 485. There is nothing revolutionary about this form of relief. It is a 152 N.Y.S.-29 statutory action, which the Code authorizes in order to determine speedily any claim or claims to real estate. It is highly desirable and to the interest of all owners of property in this particular neighborhood that questions of easements and incumbrances shall be pressed for determination in just such an action. The locality must sooner or later succumb to change in the type and character of buildings to be erected there. The policy the statute is designed to promote is beneficial and enlightened, and it should be enforced so as to favor an action of this kind. Seneca Nation of Indians v. Appleby, 196 N. Y. 318, 89 N. E. 835; Bogert v. City of Elizabeth, 27 N. J. Eq. 568; St. Stephen's Church v. Church of the Transfiguration, supra; Long Island R. R. Co. v. Garvey, 159 N. Y. 334, 54 N. E. 60. The demurrers are overruled, with leave to the defendants to serve answers within 20 days on payment of costs. Demurrers overruled. TERRYBERRY v. LEHIGH VALLEY R. CO. (Supreme Court, Special Term, Niagara County. March 29, 1915.) TRIAL 3-ISSUES-TRIAL OF SEPARATE ISSUES. Under Code Civ. Proc. § 973, declaring that the court may in its discretion order one issue to be tried before trial of others, a motion in a personal injury action for a separate trial on the issue of release is improperly refused, where there was a substantial issue, and it appeared that defendant's claim of release would be supported by evidence. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 6, 7; Dec. Dig. ~~3.] Action by Frank A. Terryberry against the Lehigh Valley Railroad Company. Defendant moves on the pleadings for a separate trial of a single issue. Motion to stand over. Thomas R. Wheeler, of Buffalo, for the motion. POUND, J. This is an action for personal injuries. Defendant pleads, inter alia, a release. Plaintiff replies, by order of the court, that no release was executed by him as such. Defendant moves, under Code Civ. Proc. § 973, for a trial of said issue separately, prior to any trial of the other issues in the case. The practice of granting orders for separate trials in such cases has been upheld as constitutional by the Court of Appeals. Smith v. Western Pacific R. Co., 144 App. Div. 180, 128 N. Y. Supp. 966, affirmed 203 N. Y. 499, 96 N. E. 1106, 40 L. R. A. (N. S.) 137, Ann. Cas. 1913B, 264. Orders denying motions for separate trials have been reversed in the First and Second departments, although the Code section says "the court in its discretion" may make such orders. Pemberton v. McAdoo, 149 App. Div. 20, 133 N. Y. Supp. 627; Warner v. Star Co., 162 App. Div. 458, 147 N. Y. Supp. 803. In the case last cited, as in this, the issue was the validity of a release of claim for personal injuries. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The conclusion seems inevitable that it is held in substance in the cases cited, supra, to be an abuse of discretion to refuse to grant a separate trial in a case where it appears that the issue, if determined adversely to the defendant, will end the litigation and render a trial of the merits unnecessary, and the plea has a reasonable basis on which to rest, is not interposed for delay, and does not involve a trial of the merits (Smith v. Western Pacific Ry. Co., supra); but I am of the opinion that, in the discretion of the court, it should appear in this case by affidavits (1) that there is a substantial question of fact, not a mere issue on the pleadings, and (2) that defendant's claim that the release was signed by plaintiff with full knowledge of its contents and purpose will be supported by evidence. Under Code Civ. Proc. § 768, let the motion stand over until April 10th. Defendant may pay $10 and serve affidavits on or before April 3d. Answering affidavits, if any, to be served on or before April 7, 1915. (SS Misc. Rep. 714) ELIAS v. COLEMAN & KRAUSE. (City Court of New York, Special Term. January, 1915.) 1. EVIDENCE 265-RELIEF FROM ADMISSIONS. In action for goods sold, where admissions as to delivery receipts received in evidence were made and acted on in reliance on the court's statement that they were only for the purposes of the then pending trial, on another trial a motion to be relieved therefrom should be granted, and if it be determined that they were not so received, they were gratuitous, incorrect, inadvertent, or based on a misunderstanding of counsel, and should be excluded. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1029–1050; Dec. Dig. 265.] 2. COURTS ERENCE. 189-CITY COURT-PROCEDURE-RELIEF FROM ADMISSIONS-REF Where such motion comes before the Special Term and is referred to the trial justice, and necessitates the determination of facts within his personal recollection, he may decline the reference and return the motion to the Special Term. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. 189.] Action by Joseph Elias against Coleman & Krause. On motion by defendant to be relieved from certain admissions made as to delivery receipts received in evidence on the trial. Motion returned to Special Term. See, also, 150 N. Y. Supp. 92. Lawrence H. Sanders, of New York City (Arthur B. Hyman, of New York City, of counsel), for appellant. Warren McConihe, of New York City, for respondent. LA FETRA, J. [1] This is a motion by defendant to be relieved from certain admissions made as to delivery receipts received in eviFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |