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fore could not be considered. In answer to the latter suggestion upon December 6th plaintiff wrote that the insertion of the erroneous terms in the specifications was an error upon the part of the stenographer, and authorizing defendant to correct the same so as to comply with the original contract, and insisting upon shipment of the paper at once, etc. We think that the order given by plaintiff to defendant, if and when accepted, constituted a complete and binding contract between the parties, subject to the right of defendant to cancel the same if plaintiff did not within due time furnish the necessary and proper specifications. The order which plaintiff signed and executed specified the amount and general kind and quality of paper to be furnished, the price, and the terms of payment, with other details relating to shipment and delivery. The specifications which were to be furnished related only to the details of size and weight of the paper which was to be supplied. These details were limited, and, as found by the referee, related to the size and consequent weight of the sheets. It was not intended that they should affect either the general character, quality, or price of the paper, and there is no sufficient evidence or finding by the referee that the specifications in these respects violated any of the agreements or negotiations of the parties. In our opinion, the contract was not rendered incomplete or indefinite in its substantial provisions and requirements because plaintiff was left in the future to furnish these details of size and weight.

We are also of the opinion that the facts and circumstances already referred to furnish sufficient evidence upon which a court might base a finding that defendant did accept this order. The referee has not specifically found upon this point, but he seems to have assumed that there was such acceptance, simply concluding as matter of law. that defendant afterwards became justified in canceling the order and in refusing to fill the same.

We therefore come, lastly, to the consideration of the conclusion. reached that defendant was so justified in canceling or rejecting the contract because of the insertion in the specifications of a statement of erroneous terms. It does not seem to us that this statement would have prevented defendant from enforcing against plaintiff the terms specified in the original order, and that it did not authorize the defendant to reject or cancel the contract, and that this is so independent of the correction immediately made by plaintiff in this part of its specifications. It was not intended that the specifications should deal with the terms of payment. It was their office simply to describe the details of the paper which was to be shipped by defendant. The price and terms of payment were fully agreed upon and fixed in the original order. That order provided for the specifications which were subsequently sent, and entirely repelled the idea that any terms of payment were left to be fixed by them. We think that defendant upon receipt of the specifications would have had a perfect right to supply the paper under the original order and terms of payment therein provided, and to notify plaintiff of its refusal to abide by the different and contradictory and unauthorized terms fixed in the specifications. This being so, it was error for the court to

release defendant from its contract and dismiss plaintiff's complaint. The judgment appealed from should be reversed on the law and the facts, and a new trial ordered before another referee, with costs to appellant to abide event.

Judgment reversed, and new trial granted upon questions of law and of fact, with costs to appellant to abide event. All concur.

MCCOLLUM v. WILLIAMSON et al.

WILLIAMSON v. McCOLLUM.

(Supreme Court, Appellate Division, Fourth Department. July 6, 1904.)

1. EASEMENTS-CONTRACTS-VIOLATION.

Where defendant sold his ice business and personal property used therein to plaintiff, and agreed that plaintiff should have the free use of a pond adjoining, for the purpose of cutting and taking ice, for 20 years, and there was no other adequate supply of water to the pond, except a ditch which drained water from the Erie Canal, which defendant pointed out to plaintiff as the supply for the ice business, defendant had no right to stop the ditch, and thereby obstruct the flow of the water into the pond. 2. SAME-JUDGMENTS-RES JUDICATA.

Where defendant sold his ice business to plaintiff, including the right to take ice from a pond, judgments in two prior actions between the parties, by which it was determined that defendant was entitled to draw off the water from the pond, so as to prevent his adjoining land from being overflowed, and restraining plaintiff from interfering with the flood gates in times of high water, so that the same would not be set back on defendant's land, were not res judicata as to plaintiff's right to restrain defendant from obstructing the ditch by which water was caused to flow into the pond.

Appeal from Special Term, Niagara County.

Consolidated actions between Silas Wright McCollum and Richard Williamson, Sr., and another. From judgments in favor of Williamson in each case, McCollum appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

King, Leggett & Brown, for appellant.

Ellsworth, Potter & Storrs, for respondents.

WILLIAMS, J. The judgments should both be affirmed, with

costs.

Williamson brought his action to restrain McCollum from interfering with the supply of water to an ice pond, and to determine the manner of cleaning out the pond. McCollum brought his action to restrain Williamson from cleaning out the pond, and depositing materials upon the icehouse property or elsewhere, without his consent, and for damages.

December 22, 1892, the parties entered into an agreement in writing whereby, for $3,000, McCollum agreed to sell to Williamson his ice business, and the personal property used in the business, and a tract of land, and to give a lease of the icehouse and the land ad

and 123 New York State Reporter

jacent thereto, with the free use of the pond adjoining, for the purpose of cutting and taking ice therefrom, and of such adjacent land as might be necessary for the removal of snow from the pond without damaging the trees and shrubs thereon, with the appurtenances, for 20 years. The lease was given January 6, 1893. The principal supply of water to the pond was through a ditch entering it on the southerly side. Without the supply of water running through this ditch to the pond, the pond could not be used successfully for the ice business. There was no other adequate supply. During the negotiations for the sale and lease of the property, McCollum pointed out to Williamson the water running through this ditch as a supply for the ice business. The main supply of water in this ditch was from the Morgan Dry Docks, on the south side of the Erie Canal. The ditch went north under the canal, and thence along the north side of the canal west, and under Clinton street through a culvert or viaduct, and thence northerly to the pond. The ditch at Clinton street crossed the state ditch, which ran along the southerly side of the street. The bottom of the pond ditch and the state ditch were nearly on the same level, so that each ditch took a portion of the water coming down from the Morgan Dry Docks. The pond ditch was wider than the state ditch, and took two-thirds or three-quarters of the water from the docks. The pond ditch ran along a natural water course, for the most part, and was dug before the state ditch nearly 50 years ago, and the water had run through it as there described for 25 to 50 years prior to the sale and lease in question. In December, 1901, McCollum sent men with picks and shovels to change the bed of the ditches at Clinton street so as to turn all the water into the state ditch, and prevent any of it running down the pond ditch. They had turned nearly all the water out of the pond ditch when Williamson interfered with the work. This was the interference with the water supply to the pond which Williamson sought by his action to restrain. The court very properly granted this relief. The pond was useless as a place to secure ice in the absence of this supply. It was so understood at the time of the sale and lease by both parties, had been used by McCollum before the sale and lease were made, and no reason appears why McCollum should interfere with the supply by cutting off the flow of water at Clinton street.

Substantially, the only defense interposed to the granting of this relief is that the matter is res adjudicata between these parties by reason of the determination of two former actions between them about 1894 or 1895. In the action of Williamson against McCollum then brought, there were two causes of action alleged: First, the one here complained of-the interference with the supply of water through the ditch; second, interference with the gate at the outlet of the pond, thereby drawing out the water when ice was forming. And it was sought to restrain both of these alleged trespasses. The court found that the acts complained of, if done at all by McCollum, were done to protect his property surrounding the pond from being injured by the overflow of waters therefrom, and from setting back of the water in the ditch into the pond, so that the water coming

from higher grounds upon the surface of the land, instead of entering the ditch, and passing through it into the pond, overran the surface of the land, injuring his fruitage, shrubbery, and vegetables thereon, and that McCollum had a right to do such acts for the purpose of preventing said injury, and there was no evidence that such acts in any way interfered with the right of Williamson to cut and take ice from the pond. There was a failure, therefore, to prove any cause of action, and the complaint was dismissed.

In the other action, by McCollum against Williamson, decided at the same time, it was sought to restrain Williamson from in any way interfering with the gate, or with the flow of water through the same; and the court by the judgment therein restrained Williamson from maintaining the gate to a point at which in times of flood the waters of the pond would rise, so that the same would flow or set back upon the lands of McCollum and cause the same to be submerged, and adjudged that when the lands were so submerged, or seriously threatened therewith, McCollum should have the right to lower the gate. to protect his property from such injury, and Williamson should not interfere with such right.

There was nothing in the determination of those actions that prevents the granting of the relief here, restraining McCollum from interfering with the water supply to the pond through the ditch in question. There is no claim now that Williamson has the right to maintain the gate so as to flood McCollum's premises. No relief is here asked as to the maintenance of the gate. That question was settled by the former litigation referred to. The other issue between the parties in the present actions relates to the subject of the cleaning of the pond. It is of no value for the purpose of harvesting ice unless cleaned out yearly, or nearly so. McCollum cleaned it out while he used it for getting ice. Williamson must do the same. This proposition seems not to be controverted. The sale and leasing of the property involved the right to clean the pond. McCollum used wheelbarrows, and put the materials near the edge of the pond. The judgment provides for the same manner of cleaning by Williamson; McCollum to designate the places at each end of the pond. where the materials shall be deposited, or, at McCollum's option, the materials shall be deposited at any other place he may designate on his premises, by the use of wagons, and, in default of any designation being made, Williamson may remove the same from the premises. This is a fair and just provision, which cannot well be objected to by McCollum.

The views herein expressed lead to the affirmance of both the judgments appealed from, with costs. All concur.

(96 App. Div. 458.)

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ERIE R. CO. v. CITY OF BUFFALO et al.

(Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) 1. MUNICIPAL CORPORATIONS - PUBLIC IMPROVEMENTS - DISCRETION OF OFFICIALS RESTRAINT-TAXPAYERS' SUITS.

Under Code Civ. Proc. § 1925, providing that actions to prevent waste or injury to the funds of a county or municipal corporation may be brought by a taxpayer, the essence of the action is fraud on the part of a public official, or some unlawful action which is sought to be prohibited; and such an action is not authorized against grade crossing commissioners, who, by Laws 1892, p. 735, c. 353, § 7, are vested with plenary power to contract with railroads for the abolition of grade crossings in a certain city, and are authorized to enforce the execution of the plans adopted, and to determine when the different parts of the work are to be done, merely because they err in matters of judgment, or make improvident expenditures, by contracting for the performance of the work at a time when prices of labor and material are high, so long as they act in good faith and within the purview of their authority.

2. SAME-BREACH OF AGREEMENT.

The fact that the proposed action of the grade crossing commissioners will result in the violation of their agreement with the railroad affected by the proposed improvement will not afford ground for such a suit, either at the instance of any taxpayer in general, or the railroad in particular which has suffered by reason of such breach, both as a party to the contract, and as a taxpayer compelled to contribute toward the expense of the improvement.

3. SAME.

The fact that the action of the commissioners in violating their contract will preclude a recovery from the railroad of its proportion of the cost of the improvement, and enhance the cost of the work to the taxpayer, is not ground for such suit by him.

4. SAME ADEQUATE LEGAL REMEDY.

For a violation of a contract with a railroad by grade crossing commissioners, who, by Laws 1892, p. 735, c. 353, § 7, are empowered to contract with railroads for the abolition of grade crossings, the railroad has an adequate remedy at law, by resisting payment for its share of the improvement when sued therefor, and it cannot maintain an action in equity to restrain the letting of the contract for the improvement.

Williams, J., dissenting.

Appeal from Special Term, Erie County.

Action by the Erie Railroad Company against the city of Buffalo and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The appointment of the grade crossing commission and the general plan for the elimination of crossings at grade over the railroads in the streets of the city of Buffalo are contained in chapter 345, p. 601, of the Laws of 1888. By this act and the amendment passed in 1892 (page 735, c. 353, § 7) the commissioners were authorized to enter into a contract with any railroad company to abolish these obstructions, and, in accordance with a comprehensive plan already devised and agreed upon, the act provided for the apportionment of the cost of any proposed improvement between the city and the contracting railroad company. The grade crossing commissioners are vested with plenary power (Laws 1892, p. 735, c. 353, § 7) to carry out the scheme contem. plated by the act. "They shall enforce the execution of the plans adopted by them, by the railroad companies affected by them and by the city, and shall have power from time to time, to determine at what time and in what order the different portions of the work shall be done." And again: "They may make contracts on behalf of the city with any railroad company or companies