N. Y. Rep.]

Opinion of the Court, per CHASE, J.

It appears from the record

The witness was in fact sworn. of his testimony that he was an intelligent school boy. Apparently it did not occur to any one that he should not be sworn. It was not until after damaging testimony had been given against the defendant and the cross-examination had proceeded for some time that the subject of the witness' knowledge of the obligation of an oath was considered. It was an afterthought and the motion to strike such testimony from the record stands wholly upon the negative answers to said two leading questions in entire disregard of other testimony and the general intelligence of the witness shown by his testimony as a whole. Some further questions to the witness by the court would doubtless have avoided all contention relating to that subject on the appeal. The court, however, may have assumed from the failure of the counsel for the defendant to allude to the subject of the witness' knowledge of the obligations of an oath, after his first suggestion about it during the cross-examination, until after the evidence was closed, that he had abandoned all claim relating to that subject.

When in any criminal proceeding a child actually or apparently under the age of twelve years is offered as a witness, and in the opinion of the court such child does not understand the nature of an oath, the evidence may be received "though not given under oath if, in the opinion of the court or magistrate such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence." (Code Criminal Procedure, section 392.)

The witness W. was not actually or apparently under the age of twelve years, neither does he appear to have been of weak intellect. The court in denying the motion to strike out his testimony determined that he, at least, had some conception of the solemnity and obligations of an oath and the consequences of false swearing.

There is no rule by which the extent of the intelligence of an adult who is called as a witness can be measured. It must necessarily be left to the good judgment of the trial court to

determine whether such a witness offered by a party to an action shall be sworn. The determination of the trial court should be sustained particularly where the testimony is received and the weight to be given to it is left to the jury, unless there is a clear abuse of discretionary power.

No error of law was committed in the conclusion of the court relating to that subject in this case, and the jury were the proper judges of the weight to be given to the testimony of such witness.

It is unnecessary to discuss in this opinion the other contentions of the defendant, as his rights were not erroneously affected by the rulings of which he complains.

The judgment of conviction should be affirmed.

CULLEN, Ch. J., EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; GRAY, J., absent. Judgment of conviction affirmed.

ISAAC G. JOHNSON & Co., Respondent, v. ELIZABETH J. Cox et al., Appellants, Impleaded with Another.

Streets and highways — when public street, actually opened and in use, deemed to be closed under ordinance opening new street in place thereof — when easement in old street not extinguished by opening of new street,

The intent of section 2 of chapter 1006 of the Laws of 1895, which provides for closing streets in certain cities, is that a street actually open and in public use shall so continue until the new street which is to take its place shall be physically opened and capable of such use; hence, owners of a street or roadbed in a city, where such statute is in force, may be restrained from closing or fencing the street or roadbed in front of their premises until such time as a new street shal! be opened to take its place.

The premises of the parties abut upon a road which has been in use for many years. In a partition deed by their predecessors in title this road was laid out on a map accompanying the deed of the premises, and made a part of it. The road was used by the tenants in common of the property prior to the partition deed and subsequent to the deed has been so used by their successors in interest. Held, that the plaintiff and the defendants, through their respective predecessors in interest, being

grantees in the same partition deed, each received the grant of a private easement, which can only be acquired by a third party under condemna tion proceedings, or a conveyance; that the easement so obtained is not extinguished by the laying out of the new street and the discontinuing the old one, and that one of the owners under the partition deed is entitled to enjoin other owners taking title thereby from inclosing or fencing in the land which forms a part of such roadbed in front of their property.

Johnson & Co. v. Cox, 124 App. Div. 924, affirmed.

(Argued June 17, 1909; decided October 19, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 5, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion.

Philo P. Safford for appellants. The findings of fact present a case which comes exactly under the operation of the statute providing for discontinuing and closing streets, avenues, roads, highways, alleys, lanes and thoroughfares in cities of more than 1,250,000 inhabitants. (L. 1895, ch. 1006.) The meaning of "opened" in the statute must be taken in its technical sense. (M. E. Co. v. Newton, 21 N. Y. S. R. 73; Matter of Mayor, etc., of N. Y., 166 N. Y. 495; Matter of Mayor, etc., 95 App. Div. 533; 119 App. Div. 882.) The public easement in Old Kingsbridge road merged and consequently extinguished any private easement that may have been possessed by the plaintiff. (Bailey v. Culver, 84 Mo. 531; Kimball v. City of Kenosha, 4 Wis. 336; Mercer v. P. F. W. & C.R. R. Co., 36 Penn. St. 99; Leonard v. Adams, 119 Mass. 366; Webster v. City of Lowell, 142 Mass. 324.)

John J. McKelvey for respondent. The easement which the respondent, Isaac G. Johnson & Co., has in and over Old. Kingsbridge road is a private right and must be distinguished from the public rights incident to every abutting owner on a highway. (Child v. Chappell, 9 N. Y. 246; Lampman v.

Opinion of the Court, per EDWARD T. BARTLETT, J. [Vol. 196.

Milks, 21 N. Y. 505; Story v. N. Y. E. R. R. Co., 90 N. Y. 122; A. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 271; Holloway v. Southmayd, 139 N. Y. 390.) The Laws of 1895, chapter 1006, cannot be construed so as to extinguish the rights and easements that the respondent has in and over Old Kingsbridge road. (L. 1867, ch. 697, § 1; Holloway v. Southmayd, 139 N. Y. 390; Matter of Board of Educa tion, 24 App. Div. 117; Matter of Mayor, etc., 28 App. Div. 143; Matter of Mayor, etc., 157 N. Y. 409; Matter of Mayor, etc., of N. Y., 56 App. Div. 122; Matter of Mayor, etc., of N. Y., 166 N. Y. 495; Johnson & Co. v. Cox, 42 Misc. Rep. 301; Matter of Mayor, etc., 95 App. Div. 533; 119 App. Div. 882; 189 N. Y. 551.) The plaintiff is entitled to the relief granted by the injunction because the statute (L. 1895, ch. 1006) does not close Kingsbridge road until Spuyten Duyvil road, the contiguous street, has been actually opened, graded and regulated so that the respondent may use the same as a highway. (L. 1895, ch. 1006, § 2; Johnson & Co. v. Cox, 42 Misc. Rep. 301; Matter of City of New York, 192 N. Y. 459.)

EDWARD T. BARTLETT, J. The Special Term judgment granted to the plaintiff the following relief:

1. "That the defendants, their agents, etc., be and they hereby are enjoined and restrained from closing the portion of the roadbed of the 'Old Kingsbridge Road' lying in front of the defendants' premises, or from in any way interfering with the use thereof by the plaintiff as a public street or road until the street contiguous thereto, the proceedings for the opening of which are now pending, shall be physically opened and capable of public use." (The Spuyten Duyvil Road.)

2. "That the defendants, their agents, etc., are further restrained and enjoined forever from enclosing, using or occupying the portion of the roadbed of the 'Old Kingsbridge Road' in front of their premises in such a way as to preclude the plaintiff from the exercise of its private easement of right of way adjudged to be appurtenant to the premises belonging to

N. Y. Rep.] Opinion of the Court, per EDWARD T. BARTLETT, J.

it, or so as to interfere with the plaintiff's use of the said roadbed by its officers, agents, employees, etc., or by vehicles, conveyances and trucks as may be reasonably necessary to the carrying on of its business."

This appeal is upon the judgment roll, there being no disputed questions of fact.

The plaintiff is a domestic corporation, having its principal office and place of business at Spuyten Duyvil, in the borough of the Bronx, city of New York. It now is and has been since the first day of January, 1903, carrying on a general business, consisting of the manufacture of steel and other metal castings.

The "Old Kingsbridge Road" is a highway leading from the railroad station of the New York Central and Hudson River Railroad Company at Spuyten Duyvil to the street known as West 230th street, at Kingsbridge, and in its course. follows the general direction of the Spuyten Duyvil creek. This road has been used as a public highway, as appears from this record, between forty and fifty years, and by general repute it is said to have existed a century or more; the record does not show the precise time; it is the road designated in the partition deed to which reference is hereinafter made.

The premises of the plaintiff and of the defendants front and abut upon the "Old Kingsbridge Road," but are not contiguous. Prior to 1865 Isaac G. Johnson, predecessor in title to the plaintiff, and David B. Cox, the predecessor in title to the defendants, with one John C. Cameron, owned in common a large tract of land, of which the premises now owned by the plaintiff, as well as the premises now owned by the defendants, together with the roadbed of the "Old Kingsbridge Road," formed a part. On the 23rd day of August, 1865, a partition deed was executed between Isaac G. Johnson, David B. Cox and John C. Cameron, under which certain portions of the tract above referred to, and including the premises now owned by the plaintiff's predecessors in title, were set off to Isaac G. Johnson, and a certain other portion of the tract, including the premises now belong