the property demanded, and yet even the record in that action, unaided by an averment of the identity of the property, would never be a bar to a subsequent action. In assumpsit, there are certain general counts under which evidence may be given with very great latitude, and it is left to a bill of particulars, which is not necessarily furnished, and when furnished, never becomes a part of the record, to specify the particular subjectmatter of the action. These illustrations are presented for the purpose of showing that the rule laid down in the opinion of the supreme court can not be correct without some qualification-some averments must go with the record. But what averments must go with the record? this is the question. Most assuredly, I answer, such averments as will distinguish and identify the subject-matter of the former action.

The principle thus far is decided in the case of Young et al. v. Black, 7 Cranch, 565; 4 Cow. 280; Gardner v. Buckbee, 3 Id. 125 [15 Am. Dec. 256]. It is sustained, also, by the precedents of pleas of former judgments as estoppels, and although the rule as broadly laid down by the supreme court, is found frequently asserted, yet there is hardly a case in which it has been held that parol evidence was not admissible to explain to what the record related; but the evidence so to be admitted will vary according to the nature, or I might rather say the form of the issue contained in the record. If the issue be joined by special pleading, generally much less latitude of evidence will be required to explain the subject-matter tried than will be necessary where the issue is general. But supposing it will be conceded that evidence may be given to identify and explain the subject-matter to which the record refers, we do not yet obtain a rule for the admissibility of the evidence which may be offered for those purposes. The rule will still require some qualification, because too great latitude of evidence would be allowed by it. This qualification, I think, is found in the case of Gardner v. Buckbee, 3 Cow. 125 [15 Am. Dec. 256], and in Burt v. Sternburgh, 4 Id. 659 [15 Am. Dec. 402], and consists in this: That if the fact or grounds upon which the former judgment proceeded do not appear from the record itself, the issue contained in the record must be obviously such that the facts or grounds alleged might legitimately have been given in evidence under it; and when it is proved that such facts or grounds were so given in evidence, then that from the issue itself and the verdict it appear that those facts must have been necessarily and directly in question and determined, and that upon such grounds, and no other, mut the verdict have been found.

From the view I have taken of this case, not unsupported by authorities, I deduce this principle: that a former judgment may be given in evidence, with such parol evidence as is necessary to show the grounds upon which it proceeded, and that where such grounds from the form of the issue do not appear from the record itself, it is competent to prove the same, provided that the grounds alleged be such as might legitimately have been given in evidence under the issue, and such that when it is proved they were given in evidence, it appears by the verdict and judgment that they must have been directly and necessarily in question as the grounds of the verdict. Let us, then, try by this rule the evidence offered by the plaintiff in error in the court below on the trial of this cause. The lessors of the plaintiff on that trial made out their title to the premises in question by the deed from Maria Osgood to Martha B. Osgood (now Genet), and upon that deed, and that alone, rested the title of the lessors. The defendant (the plaintiff in error in this court) offered in evidence the record of a judgment of the supreme court, in an action wherein the president and directors of the Manhattan company were plaintiffs, and the lessors of the plaintiff were defendants, and one of the issues was, whether they, the lessors, with the other defendants, were seised of certain lands as heirs and devisees of Maria Osgood; the verdict of the jury upon that issue was, that they were so seised of certain lands and tenements-thus far the record. The plaintiff in error then offered to explain the record; to prove that the lands in question in that suit were the same with those to recover which this suit was brought; that on the former trial, the defendants, now lessors, claimed title to those premises by virtue of the deed from Maria Osgood, and upon no other ground; that to resist that claim, the plaintiffs alleged that the deed was fraudulent and void as against them; that the question of the validity or invalidity of that deed was the only question submitted to the jury under that issue. Now, then, it must be admitted that the grounds of that verdict do not appear upon the record itself, neither can it be denied that the deed itself, and the evidence introduced to prove it fraudulent and void, were legitimately admissible under that issue, and being proved, it is equally certain that when this evidence, and this evidence alone, was submitted to the jury under that issue, it was necessarily and directly in question, and must have been the grounds of the verdict. Had the verdict been for the defendants in that suit, the deed must necessarily have

been deemed valid, but being for the plaintiffs, the deed must have been found to be void. That the plaintiff in error stands in the relation of privy to the president and directors of the Manhattan company, the plaintiffs in the former action, is a proposition too obvious, I think, to admit of argument.

I close these remarks as I commenced them, nemo debet bis vexari. This question has been once tried between the parties, and the plaintiff in error ought not to be compelled to litigate it anew. I can discover no qualification of the general rule which ought to deprive him of its protection. I will not look beyond the case to inquire whether it is probable that tho plaintiff in error can, on a new trial, make the proof he has offered, or whether the judgment may not have been reversed, and what the effect of that reversal might be as regards the rights of the parties. Confining myself to the case as it appears before this court, I am of opinion that the judgment of the supreme court ought to be reversed.

The court being unanimously of the opinion that the judgment of the supreme court ought to be reversed, it was accordingly reversed.

RES ADJUDICATA AS ESTOPPEL.-See Cutler v. Cox, 18 Am. Dec. 182, and other cases in this series cited in the note thereto. Wood v. Jackson is a leading authority on this subject in New York. It is cited to the point that a former recovery is admissible in evidence under the general issue, where there is no opportunity to prove it, and is then as conclusive as if pleaded, in Wood v. Jackson, 18 Wend, 117, 118, per Maison, Senator. This was the same case which was again brought to the court of errors after another trial below, and it was finally decided in accordance with the doctrine laid down by the chancellor in the foregoing opinion, that the reversal of the judgment did away with the estoppel. The case is also referred to in Young v. Rummell, 2 Hill, 480; Knight v. Dunlop, 4 Barb. 41; Constant v. Feaks, 2 Ed. Ch. 332; Embury v. Conner, 3 N. Y. 522; White v. Coatsworth, 6 Id. 143, and Dunkel v. Wiles, 11 Id. 427, as authority with respect to the admissibility and conclusiveness of a former recovery under the general issue, and in Wilcox v. Lee, 26 How. Pr. 422; S. C., 1 Rob. 359, 1 Abb. Pr. N. S. 255, as to the conclusiveness of a former recovery generally. So to the point that where the same question is not involved, a former recovery is no bar, in Quackenbush v. Ehle, 5 Barb. 473, and Knox v. Hexter, 42 N. Y. Sup. Ct. (Jones & S.) 10. So, that a judgment recovered on technical grounds is no bar, in Vaughan v. O'Brien, 57 Barb. 495; S. C., 39 How. Pr. 518, and that a reversal of the judgment removes the estoppel, in Smith v. Frankfield, 13 Hun, 491; but that such reversal does not disturb the title of a purchaser under the judgment. in Clarke v. Davenport, 1 Bos. 121; Holder v. Sackett, 2 Abb. Pr. 475, and Graham v. Bleakie, 2 Daly, 60. That parol evidence is admissible to show what was the precise question in issue in the former suit, where it is not apparent in the record, is held also on the authority of Wood v. Jackson, in Bebee v. Elliott, 4 Barb. 459; Baker v. Rand, 12 Wend. 161; Davis v. Talcott, 14 Barb 620;

Stedman v. Patchin, 34 Id. 221; Harris v. Harris, 36 Id. 95; Royce v. Burt, 42 Id. 351; Briggs v. Wells, 12 Id. 569; Appleton v. Warner, 51 Id. 270; White v. Madison, 26 N. Y. 130; S. C., 26 How. Pr. 491; Birckhead v. Brown, 5 Sand. 151; Kerr v. Hays, 35 N. Y. 337; Pierce v. Tuttle, 58 Id. 651; Reynolds v. Garner, 66 Barb. 313; Frantz v. Ireland, 4 Lans. 281, 283.

The case is cited, also, in Candee v. Burke, 1 Hun, 549; S. C., 4 N. Y. Sup. Ct. (Thomp. & C.) 145, to the point, that receiving the surplus on a sale on execution does not preclude a party from disputing the validity of the sale; and in Watson v. Le Row, 6 Barb. 490, to the point that an antecedent creditor has a right to require one claiming under a voluntary conveyance from the debtor, to rebut the presumption of fraud.

LIVINGSTON v. MAYOR ETC. OF NEW YORK.

[8 WENDELL, 85.]

CONVEYANCES OF CITY LOTS are not governed in all respects by the same principles of construction as are applicable to grants of property in the country. Per Walworth, Chancellor.

RIGHT OF WAY AS A MERE RURAL SERVITUDE is confined to a convenient passage from the property granted to the public road or highway. Per Walworth, Chancellor.

CONVEYANCE OF A CITY BUILDING LOT AS BOUNDED BY A STREET of a

certain width, implies in the grantee a right to have such street kept open in front of his lot for the benefit of light and air as well as for a mere passage-way. Per Walworth, Chancellor.

GRANT OF SUCH A LOT AS BOUNDED IN THE REAR BY AN ALLEY or street

entitles the grantee to have it kept open also for the purpose of light and air, and as a passage-way to his garden or stable. Per Walworth, Chancellor.

GRANTOR OF CITY LOTS WITH Reference to a CITY PLAN will not be permitted by a court of equity without an express or implied reservation of the right, to shut up the streets adjacent to such lots. Per Walworth, Chancellor.

GRANTOR'S INTEREST IN STREETS by which he has bounded lots conveyed, either specifically or with reference to a city map upon which they are marked, is a mere legal title subject to the urban easement or right of his grantees to have them permanently kept open. Per Walworth, Chancellor.

WHERE SUCH STREETS ARE SUBSEQUENTLY OPENED AS PUBLIC STREETS, the grantor is entitled to nominal damages only. Per Walworth, Chancellor, and Sherman, Senator.

PRIVATE PROPERTY MAY BE TAKEN FOR A PUBLIC STREET, under the authority of the legislature, upon making just compensation. Per Walworth, Chancellor, and Sherman, Senator.

AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, adopted at the first session of congress, are restrictions upon the powers of the general government only, and not upon those of the states. Per Walworth,

Chancellor.

BENEFIT TO THE OWNER OF LAND TAKEN FOR A STREET, in improving the value of his adjacent property, may be set off against his damages. Per Walworth, Chancellor.

MODE OF ASCERTAINING THE COMPENSATION to be made to the owners of land taken for streets is within the discretion of the legislature. Per Walworth, Chancellor, and Sherman, Senator.

ASSESSMENT OF THE DAMAGES BY COMMISSIONERS, as provided by statute in such cases, is constitutional. Per Walworth, Chancellor, and Sherman, Senator. CONSTITUTIONAL PROVISION SECURING THE RIGHT OF JURY TRIAL relates to the trial of issues of fact in civil and criminal proceedings in courts of justice, and not to the assessment of damages from the exercise of the power of eminent domain. Per Walworth, Chancellor. DEDICATION OF A STREET may be established either by length of time or by an act so unequivocal as to require no time to warrant the presumption. Per Sherman, Senator.

USER OF A STREET FOR TWENTY YEARS by permission of the owner is suf ficient to establish a dedication. Per Sherman, Senator.

LAYING OUT OF STREETS AND OF LOTS FRONTING THEREON by the owner of the land, and the sale of such lots to purchasers who immediately build thereon, are sufficient to constitute a dedication. Per Sherman, Senator.

FEE IN A STREET PASSES BY A Conveyance of lots bounded thereon, so far as it fronts the lots. Per Sherman, Senator.

ERROR from the supreme court to reverse a judgment of that court affirming, on certiorari, a confirmation by the justices of the same court acting as commissioners under the statute, of the report of commissioners of estimate and assessment, assessing the damages of the plaintiff in error at one dollar from the opening of Ridge street in New York city as a public street, and the benefit to his adjoining lands at forty-one dollars and thirty-seven cents, and assessing his damages from opening Attorney street as nothing, and the benefit to his adjoining lands at fifty-three dollars and ninety-six cents. The facts and the objections made to the judgment are sufficiently stated in the opinions of the chancellor and Senator Sherman.

H. W. Warner and A. Van Vechten, for the plaintiff in error. R. Emmett and D. B. Ogden, for the defendants in error.

WALWORTH, Chancellor. There seems to be a very little dispute as to the facts in this case. But an important question arises as to the rights of the plaintiff in error, as against the persons to whom he had conveyed certain building lots in the city of New York. His counsel have also raised and argued several constitutional objections to the mode in which damages are directed to be assessed by the laws regulating the laying out and altering streets in that city, which it will be necessary briefly to consider.

Some twenty or thirty years since, the plaintiff in error was