and 123 New York State Reporter building was erected in a public street. The justice rendered judgment in favor of the plaintiff for five penalties of $5 each, besides costs, and from a judgment of the County Court affirming such judgment of the justice this appeal is taken. In 1829 the commissioners of highways of the town from which the village of Watkins was afterwards taken duly laid out a highway three rods in width on the line of the street now known as "Madison Avenue," and record of the action of such commissioners was duly made in the clerk's office of such town. In January, 1875, the trustees of the village of Watkins caused a survey and map of its streets to be made and adopted, and filed such map and adopted and promulgated an ordinance, under a clause in the village charter authorizing the trustees "to locate and define the boundary lines of the public streets and alleys in said village" (section 5, tit. 6, c. 125, p. 235, Laws 1861, as amended by section 2, c. 192, p. 486, Laws 1870), which located and described the street in question as one 66 feet in width, with 36 feet on the east side of the center line of the old 3-rod highway and 30 feet on the west side of such center line. No steps were taken to condemn lands to widen the street, and nothing further was done to change the width of the street. The building alleged to be an obstruction was erected by the defendant in 1897. There is a village ordinance making it unlawful to place or maintain any obstruction upon any of the streets of the village, and imposing a penalty of $5 for every violation thereof, and a further penalty of $5 for each 24 hours such violation shall be continued. It was to recover the penalties imposed by this ordinance that the action was brought. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. O. P. Hurd, for appellant. CHESTER, J. If the street in question is only three rods wide. as laid out in 1829, the building in question is wholly outside of the limits of the boundaries of the street. If, on the other hand, the street is 66 feet wide, then the building is clearly an encroachment upon the street. The theory upon which this case was presented to the courts below by the plaintiff was that the ordinance of 1875, passed by the board of trustees, the filing of a map thereunder, and the conduct of owners of property upon the street since that time in acquiescing therein, were effective to increase the width of the street to 66 feet. It is evident that the trustees, by passing the ordinance of 1875, and filing a map showing a street increased in width to 66 feet, could not thereby lawfully take private property from the adjoining owners for the purpose of increasing such width, for the reason that that would be an invasion of constitutional rights, as it would be the taking of private property for public use without just compensation. Manifestly, too, under a statute giving to the board of trustees of the village the power to locate and define the boundary line of the streets in the village, such board would have no power to take private property for public use; nor would the board, under such a statute, have the power to locate and define the boundaries of a highway which was laid out to be 3 rods in width in such a way as to show that the boundaries on each side should be 66 feet apart, and in that way encroach upon the title of the adjoining owners. Hence we have examined this record with a view of ascertaining from it if there was sufficient evidence to justify a finding that the owners of the abutting property where the building in question is located had dedicated the land to the public as a street, and the public had accepted it as such, or whether there is any evidence that would justify a conclusion that, subsequent to the passage of the ordinance of 1875, and prior to the erection of the building in question, the public, by user during all that period, which is upwards of 20 years, had acquired a prescriptive right to the entire width described in the ordinance. as a public street. The fact that the ordinance was passed might be regarded as a sufficient public acceptance of the property in dispute for street purposes, but that would not be sufficient unless there had also been a dedication of the land by the owner to the public as a street. The only evidence to support that view is found in the fact that during all that time there were no fences maintained by the owners of the property to divide it from the street, and it was open at all times, and unobstructed by any structure until the erection of the building in question. The mere fact that it was unfenced by the owners is not sufficient evidence to show an intention on the part of the owners to dedicate the land to the public use as a highway. Rozell et al. v. Andrews, 103 N. Y. 150, 8 N. E. 513; Matter of Hand Street, 52 Hun, 206-211, 5 N. Y. Supp. 158; Strong et al. v. City of Brooklyn, 68 N. Y. 1, 16; Flack v. Green Island, 122 N. Y. 107, 25 N. E. 267. While there have been no fences and nothing to interfere with the public use of the property in question as a street, there is no proof that it has in fact been so used at any time during the 20 years prior to the erection of the building thereon by the plaintiff, and such proof would be essential to support a title in the public by prescription; nor is there any proof that the location in question has ever been worked or occupied in any way by the public as a street. Every element seems to be wanting to show that the street has ever been lawfully widened since it was originally laid out as a highway, three rods wide, in 1829. The judgment of the County Court and of the justice's court should be reversed, with costs to the appellant in this court and in the County Court. All concur. (96 App. Div. 48.) RAY v. UNITED TRACTION CO. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. CARRIERS-INJURIES TO PASSENGERS-ASSAULT-COMPLAINT CONSTRUCTION. Where a complaint charged that the conductor of defendant's street car, on which plaintiff was riding, unlawfully threatened to eject plaintiff therefrom, and did wrongfully, unlawfully beat and assault her, by reason whereof she was injured and greatly bruised, etc., but did not allege that she was actually put off the car, it stated a cause of action for assault and battery only, and not for ejection. 2. SAME-PROOF. Where a complaint by a passenger on a street car alleged a cause of action for assault only, and not for ejection, and the proof showed that plaintiff, on being told by the conductor that she could not ride while carrying a large steel cage in her hand, left the car without being forcibly expelled, it was error to charge that, if plaintiff was illegally compelled to leave the car, she was entitled to such damages as the evidence warranted. 89 N.Y.S.-4 and 123 New York State Reporter 3. SAME-RULES-CARRYING OF PACKAGES. A rule of a street railway company forbidding the carrying of cumbersome packages into their cars by passengers is reasonable. 4. SAME-VERDICT-EVIDENCE. Where a passenger boarded a street car carrying a cage 22 feet high and 2 feet square, a verdict finding that such package was not cumbersome, within a rule prohibiting passengers from carrying cumbersome packages into the cars, cannot be sustained. 5. SAME-ACTS OF CONDUCTOR-DISCRETION. The decision of the conductor of a street car that a package carried by a passenger was "cumbersome," within a rule of the company prohibiting passengers from carrying cumbersome packages on board the cars, should be sustained unless such determination was unreasonable and willful. Appeal from Albany County Court. Action by Mary A. Ray against the United Traction Company. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Reversed. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. Rosendale & Hessberg (Albert Hessberg, of counsel), for appel lant. Walter H. Wertime (Mark Cohn, of counsel), for respondent. PARKER, P. J. The complaint in this action charges that a conductor on one of the defendant's cars unlawfully threatened to eject the plaintiff therefrom, and did wrongfully, unlawfully beat and assault her, by reason whereof she was injured about her hand, and was greatly bruised, etc., to her damage of $2,000; and she asked judgment against the defendant there for. There is no averment in the complaint that she was actually put off the car, or that she got off. The complaint is clearly one for assault and battery by the defendant's agent, and for nothing more. The court charged the jury that there was no assault and battery by the conductor upon the plaintiff, and in that it was fully justified by the evidence. The plaintiff's own statement utterly failed to show one. She did testify, however, that because she had a steel cage in her hand-one purchased for and large enough to keep a parrot inthe conductor refused to take her fare, and told her that she must get off the car; that it was not permitted to carry such articles on the car; that, upon his insisting that she get off, she did so, and was greatly humiliated, and suffered great mental agony, etc., thereby. The court charged the jury to the effect that, although there was no assault and battery committed upon her, yet that, "if you find this plaintiff was illegally ejected or compelled to get off of this car, then she is entitled to such damages as you feel the evidence warrants." This charge was duly excepted to by the defendant's attorney, and in this connection he asked the court to charge that: "This is an action for assault. Unless the jury find the plaintiff was assaulted by the company or agents, there can be no recovery." The court refused so to charge, and the defendant excepted. This charge and refusal was error. It is a familiar rule that a plaintiff may not plead one cause of action and recover up on another. Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Reed v. McConnell, 133 N. Y. 425, 434, 31 N. E. 22. It is true that evidence tending to show that the plaintiff was not allowed to ride on the car and carry the cage with her came into the case without objection, but it came in as part of the transaction between herself and the conductor. It could not properly have been excluded, and all of it was properly in as tending to show a justification for a forcible exclusion from the car had the plaintiff given any evidence to show that she was forcibly expelled. It was but incidental to the cause of action upon which alone she sought to recover, viz., an assault and battery upon her; and upon her resting her case the defendant moved for a nonsuit upon the ground that she had utterly failed to prove the assault. Thus the objection was squarely taken, and it seems clear error to permit her to recover for a reason neither claimed nor suggested in her complaint. Moreover, it further appears that the cage which she was carrying was 2 feet square and from 2 feet to 21⁄2 feet high. This is the size which the conductor and the inspector give it, and such evidence is not substantially contradicted by the plaintiff. She did not attempt to give any measurements, except she said it was as wide as her lap, and upon the seat of the car would occupy the space of one passenger. A rule of the company forbids the carrying of "cumbersome" packages, and the court instructed the jury, without objection by the plaintiff's attorney, that, if such cage was a "cumbersome package" within the meaning of that rule, the plaintiff could not recover. The jury must be deemed, therefore, to have found that it was not. But the question arises whether that finding is supported by the evidence. As stated above, we must assume from the evidence that the package was some 22 feet high and 2 feet square. Can we sustain the verdict of a jury that such a sized package is not a cumbersome one? If we do, we practically hold that every passenger has the right to carry such a package in the car. This decision will be authority to all travelers that such rule of the company does not exclude a package of that size. The rule is a reasonable one (Dowd v. Albany Railway, 47 App. Div. 202, 62 N. Y. Supp. 179), and its purpose is evident. A package that would reduce the carrying capacity of a car to one-half if the package was deposited on the seat by the side of the carrier would evidently amount to an unmitigated nuisance if each seat was occupied by a party attempting to carry such a package on his or her lap. Therefore, in my judgment, such a package is a "cumbersome" one within the purpose and intent of that rule. While I would not hold that, as a matter of law, the decision of the conductor should be controlling upon that subject, yet it should have great weight, and his action in determining whether or not the rule is being violated in each particular case should not be reversed by a jury unless it is a case of willful or unreasonable judgment on his part. In the case before us I am of the opinion that the determination of the conductor should have controlled, and that he was justified in enforcing the rule against the plaintiff, and requiring her to leave the car if she insisted on carrying the cage. On and 123 New York State Reporter her own evidence, she does not claim that he used any force whatever against her. He but told her that she was violating the rule, and must therefore get off, and she thereupon got off. The judgment and order should be reversed on the law and the facts, and a new trial granted; costs to the appellant to abide the event. All concur; SMITH, J., in result, and CHESTER, J., on the ground that plaintiff has not proved cause of action alleged in complaint. (96 App. Div. 65.) DICKINSON v. OLIVER. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. BILL OF SALE-CHATTEL MORTGAGES-Fraud. D., being indebted to defendant, and having previously given him a chattel mortgage on certain farm property, including young stock, which had not been recorded, executed a bill of sale to defendant of the property covered by the mortgage, it being agreed that defendant would go to the farm and take possession of the property three days thereafter. Defendant did not surrender the chattel mortgage and notes secured thereby until he went to take possession of the property, when he gave D. a lease of the same for a year for the sum of $42, which was the exact amount of legal interest on the indebtedness. The lease also provided that if D. at any time prior to a date specified should pay defendant the purchase price of the property and interest, defendant would resell the same to him. The evidence was conflicting as to when the agreement to lease was made, but the value of the property was largely in excess of the purchase price. Held, that the bill of sale and lease constituted a chattel mortgage, which, not being filed, was void as against D.'s creditors. 2. SAME-APPEAL-SUFFICIENCY OF EVIDENCE-NONSUIT-REVIEW. Since the Appellate Division is entitled to review questions of law and fact, and reverse where the judgment is against the weight of the evidence, it has jurisdiction to reverse a judgment based on a verdict, where there was no evidence sufficient to go to the jury, though defendant did not move for a nonsuit at the close of the evidence in the trial court. Parker, P. J., and Houghton, J., dissenting. Appeal from Trial Term, Delaware County. Action by Barney Dickinson against William C. Oliver. From a judgment in favor of defendant, and from an order denying plaintiff's motion for a new trial, he appeals. Reversed. This action is brought by the sheriff of Delaware county to recover from the defendant in conversion the value of certain property which was levied upon by the plaintiff as the property of Archibald W. Dickson upon a judg ment against said Dickson. The property was in the possession of Dickson at the time of the levy. Thereafter the defendant took possession of the property under an instrument claimed to be a bill of sale executed by the said Dickson to him prior thereto. In 1889 Dickson purchased a farm, which was subject to a mortgage held by the defendant. This mortgage Dickson assumed to pay. Thereafter, having become indebted to defendant for past interest unpaid upon that mortgage, and for a store bill, Dickson gave to defendant, upon the 5th day of February, 1900, a chattel mortgage covering the property in dispute, to secure the payment of six hundred and odd dollars, with interest. This mortgage was never filed, and upon the 27th day of August 1900, this mortgage was surrendered, and a note taken from Dickson for the same sum, together with interest, and a new chattel mortgage upon the same property. This second mortgage was not filed, and upon the 8th day of November, 1900, Dickson |