citizens in the gathering of the ice, which experience has shown has resulted and would be likely to result if there were no restraints put thereon. It also says, in effect, to the owners of adjacent uplands, that upon complying with its statutes the ice shall belong to them. The plaintiff has complied with the statutes. Its ice has been reduced to possession so far as the same can be done by a compliance with the statute. I can see no reason why its property in said ice should not be protected by the courts, if assailed, without regard to the exact status of the property thus acquired. The plaintiff has parted with value to acquire this property, so that it becomes to it a valuable property right.

The question then recurs, is the operation of the defendant's plant in the manner claimed by the plaintiff, and to the extent not denied by the defendant, a nuisance? It is admitted by the defendant that it so conducts its business that certain material from its property finds its way upon the ice fields of the defendant. It claims, however, that it is conducting a lawful business in a careful manner upon its own premises, and that whatever escapes upon the plaintiff's property is to its own injury, for the loss of the product, and does not injure the ice of the plaintiff to any great extent.

The case of Campbell v. Seaman, 63 N. Y. 568-577, 20 Am. Rep. 567, was an action for damages resulting from an alleged nuisance, and to restrain its continuance, in which it appeared that the defendant owned a brickyard adjoining plaintiff's dwelling house and lands. During the process of burning brick, sulphuric acid gas was generated by the use of anthracite coal, which, when the wind blew in the right direction, was carried to the plaintiff's grounds, killing and destroying his trees and shrubbery. Such brick could not be successfully manufactured without such use of coal. A judgment for damages and for an injunction was sustained; Judge Earl writing the opinion therein, in which, on page 577, 63 N. Y., 20 Am. Rep. 567, he says:

"But every person is bound to make a reasonable use of his property, so as to occasion no unnecessary damage or annoyance to his neighbor. If he make an unreasonable, unwarrantable, or unlawful use of it, so as to produce material annoyance, inconvenience, discomfort, or hurt to his neighbor, he will be guilty of a nuisance to his neighbor. And the law will hold him responsible for the consequent damage. As to what is a reasonable use of one's own property cannot be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality and under some circumstances may be lawful and reasonable, which under other circumstances would be unlawful, unreasonable, and a nuisance. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient."

This case has never been questioned, and was referred to as lately. as Bates v. Holbrook, 171 N. Y. 470, 64 N. E. 181, and Bly v. Edison Electric Illum. Co., 172 N. Y. 10, 64 N. E. 745, 58 L. R. A. 500, as being the approved law of this state.

In Bly v. Edison Electric Illum. Co., 172 N. Y. 9, 64 N. E. 745, 58 L. R. A. 500, a nuisance is defined to be "unreasonable, unwarrantable, or unlawful use of one's own property, to the annoyance, inconvenience, discomfort, or damage of another." The plaintiff here is

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not complaining of the defendant's occupancy or user of its own premises in its own business, but it complains of the defendant occupying and using premises and property of plaintiff as a receptacle for its (defendant's) cinders, ashes, clay dust, coal dust, and soot, thereby injuring and destroying its ice. It is conceded that the defendant may do as it likes upon its own premises, but when it throws its smoke, dust, and soot upon the ice of the plaintiff, it has left its own domain, and gone upon property of the plaintiff, injuring plaintiff's property. I think it thereby becomes a nuisance. It takes property of the plaintiff, for the right to obtain which plaintiff has purchased lands, erected icehouses, and staked out ice fields, and appropriates such property as a receptacle for its smoke, dust, and soot, which should be restrained on its own soil. It makes no difference that this injury only occurs when the wind is in the right direction to carry defendant's soot and other substances to plaintiff's ice fields and is not continuous. Campbell v. Seaman, supra. Nor that defendant's business is not carried on negligently. The injury is just as great to plaintiff's property as it would be if defendant negligently cast its products thereon. Bohan v. Port Jervis G. L. Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711.

I conclude, then, from the papers and exhibits submitted, that an injunction should issue pending this litigation, restraining defendant from so operating its cement plant as to throw said materials complained of from the same upon the said ice fields of the plaintiff while ice is forming, and while the plaintiff, with reasonable celerity, is gathering the same. It is not intended that this injunction shall in any way restrain defendant's operations, except in the manner and at the time suggested, and the plaintiff must immediately give personal notice to defendant when its said houses are filled, or it has harvested all it cares to do for the season; and, if it apparently appears that the injunction directed is being used for the purpose of delaying defendant's use of its plant, defendant may apply to any term of this court, or justice thereof, on three days' notice to plaintiff,

for its modification.

Ordered accordingly.

BRAND v. BORDEN'S CONDENSED MILK CO.

(Supreme Court, Appellate Division, Second Department. June 3, 1904.) 1. WITNESSES-EXAMINATION-LEADING QUESTIONS.

In an action for injuries to a person riding on a car, caused by a collision of defendant's wagon with the car, a question asked of the person injured, "Did you afterwards see what it was that had run into the car?" was not objectionable as leading.

2. ACTIONS FOR INJURIES-EVIDENCE-COMPETENCY.

In an action for injuries to a person riding on a car, caused by a collision of defendant's wagon with the car, testimony of the person injured, who did not see what struck the car at the very moment of the collision, as to what she saw directly afterwards while the horse and wagon were in such a position and so near the point of contact as to indicate that the wagon had struck the car, was competent.

Appeal from Municipal Court, Borough of Brooklyn. Action by Conrad Brand against the Borden's Condensed Milk Company. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

Benjamin F. Norris, for appellant.
D. Milbank, for respondent.

HIRSCHBERG, P. J. The decision was against the evidence. No witnesses were called by the defendant to testify as to the accident, and the evidence for the plaintiff was substantially the same. as on the first trial, which resulted in a dismissal of the complaint, the judgment then entered being afterwards reversed on appeal. See Brand v. Borden's Condensed Milk Co., 89 App. Div. 188, 85 N. Y. Supp. 755. Referring to the evidence then adduced on behalf of the plaintiff, Mr. Justice Bartlett said (page 190, 89 App. Div., page 756, 85 N. Y. Supp.):

"In my opinion, the proof was ample to warrant a finding that a horse and wagon belonging to the defendant, left unattended in the public street, had collided with the car in which the plaintiff's daughter was a passenger, and broken one of the windows thereof in such a manner as to inflict injury upon her."

The proof was equally ample upon the second trial. Two disinterested witnesses, who were also passengers upon the car, saw the horse running away directly after the crash, with no one in the wagon, and the driver running after; and both testified that when the driver caught the horse and brought it back they saw that the wagon bore the defendant's name. There was no other wagon in the street at the time. One of these witnesses saw the wagon just before the collision, and positively identified it as the one which was brought back.

There was also error in the exclusion of evidence on the examination of the plaintiff's daughter. She testified as follows:

"Q. Well, when the car got near Herkimer street, what happened? A. A milk wagon ran into the car, and broke the second rear window. Mr. Rowlette: I move to strike out a milk wagon ran into the car,' unless she saw it. The Court: Strike it out. Mr. Norris: I except. By Mr. Rowlette: Q. Did you see the milk wagon run into the car? A. I did not at the time. By Mr. Norris: Q. You said something broke the window in the car? A. Yes, sir. Q. And on which side did it run into? A. The right side. Q. You don't know what ran into the car. A. Not at that moment. * Did you afterwards see what it was that had run into the car? Mr. Rowlette: I object to that as to what occurred after the accident. The Court: I will sustain the objection. I think your question is objectionable in form. Mr. Rowlette: I object to the question as leading. Mr. Norris: I take an exception."

Neither objection taken to the question was valid. The question was not leading, although it may have been objectionable as calling for a conclusion, and the fact that what the witness may have observed occurred immediately after the actual contact between the wagon and the car did not render it improper or incompetent as

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evidence. It is quite apparent that, although she did not see what struck the car at the very moment of the collision, she may have seen the horse and wagon directly afterwards in such a position and so near the point of contact as to indicate that the wagon had struck the car, and, if so, the fact in relation to what she then saw would have been competent testimony. Under the ruling of the court her evidence as to what she saw after the accident was limited to what she subsequently saw when looking down the street at the time the driver was running after the horse, excluding the results of her observation directly after the collision, when it is fair to assume that the relative positions and the propinquity of the vehicles would have more clearly indicated the cause of the occurrence. The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

PUTTER v. BERGER.

(Supreme Court, Appellate Division, Second Department. June 3, 1904.) 1. BROKERS-PROCURING CUSTOMER-LIABILITY OF PRINCIPAL.

Where a broker employed to bring about a sale of real estate brought to the owner a responsible purchaser willing to take the premises on the terms outlined by the owner, the broker was entitled to his commissions, though the sale fell through because the owner could not give immediate possession as he had agreed to do.

Appeal from Municipal Court, Borough of Brooklyn, Third Dis

trict.

Action by Nathan Putter against Charles Berger. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.

Charles G. F. Wahle, for appellant.
Loren N. Wood, for respondent.

PER CURIAM. The general rule is that where the broker employed to negotiate a sale of real estate brings to his employer a responsible purchaser, willing to buy upon the terms prescribed, he has earned his commissions. Barnard v. Monnot, *42 Ñ. Y. 203; Brady v. Foster, 72 App. Div. 416, 75 N. Y. Supp. 994; McQuillen v. Carpenter, 72 App. Div. 595, 76 N. Y. Supp. 556; Gilder v. Davis, 137 N. Y. 504, 33 N. E. 599, 20 L. R. A. 398, and cases cited. The evidence offered in behalf of the plaintiff in this action to recover commissions for the sale of real estate which the plaintiff owned tended to establish the defendant's liability under this doctrine. The defendant gave the plaintiff a written so-called "authorization" to sell his property, subscribed by him. In the description of the property contained in that writing the defendant stated that the possession of the

1. See Brokers, vol. 8, Cent. Dig. § 94.

property might be had at once, and that he wished to receive the price of $23,000. The plaintiff, after making several efforts, extending over a number of months, to sell the property, told the defendant that the price was too high and could not be obtained, and that he had a customer who would pay $22,000. The defendant replied that he would like to meet the customer, and they would come to an agreement on the price. The plaintiff brought the defendant and intending purchaser together, and they did, after a short conversation, agree upon a price of $22,500. It then appeared, and there was some evidence indicating that the plaintiff knew of its existence before, that the property was under lease by the defendant, and that the lease had 41⁄2 years to run. The intending purchaser stated that he wished immediate possession, and both plaintiff and the purchaser testified on the trial that defendant said he would obtain possession at once from the lessee, who was a friend of his and a nice man, and that he would obtain a cancellation of the lease and pay whatever the lessee demanded. It is true that this was denied by the defendant, but this conflicting evidence presented a question of fact for the justice before whom the case was tried to determine, and we are not disposed to interfere with his conclusion. The lessee, it later developed, wished more money than the plaintiff was willing to give, and, because of that, defendant was unable to give possession to the intending purchaser, and the deal fell through. The plaintiff, however, earned his commissions, and the judgment in his favor should be affirmed, for he produced the purchaser who was willing to take the premises on the terms outlined by the owner, and that he was able to complete the purchase is not denied, and is supported by the evidence. The judgment should be affirmed, with costs.

DORFF v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. June 3, 1904.)

1. APPEAL-NONSUIT-CONSIDERATION OF EVIDENCE.

On appeal from an involuntary nonsuit, plaintiff is entitled to the most favorable view of the evidence which the jury might properly have taken. 2. PLEADINGS-AMENDMENT TO CONFORM TO PROOF.

Where the complaint in an action against a street railway company for personal injuries alleged that plaintiff, believing herself in great peril, and to save herself, jumped from the car in which she was riding, and fell upon the ground, and the evidence developed that plaintiff did not recollect what occurred, and one of her witnesses testified that she fell on the platform of the car, the evidence did not substantially change her claim, and the pleadings might properly have been deemed amended to conform to the facts, under Code Civ. Proc. § 723, providing that the court may, upon trial, amend any pleading to conform to the proof, where the amendment does not change substantially the claim or defense.

3. STREET RAILWAYS-INJURIES TO PASSENGER-RES IPSA LOQUITUR.

Evidence that, while plaintiff was riding in defendant's street car, flames and smoke appeared in various parts of the car, creating a panic, so that while plaintiff was attempting to escape from the car she was injured, was sufficient to justify an inference of negligence, so that it was error to dismiss the complaint.