The evi

with the mother. Mildred, aged 6 or 7, was not sworn. dence satisfies me that the respondent's status and surroundings are not what they should be, in view of the fact that these young children are of tender years, with minds susceptible to improper influences. They are living in a rooming house, and have in the past moved from place to place many times. These three children, however, appear to be content, well clothed, and well nourished. Corporal punishment seems to be the rule; but the children who were sworn on behalf of respondent seem to be satisfied that the punishment, when administered, was deserved and not excessive. The conduct of the relator is criticised; but, while the criticism is in some respects just, it is not of a character to justify the court in making an order which might be construed as interfering with the judgment of the court of the state of Wyoming. The record here, however, might, with propriety, be presented to the Wyoming court, with a view to reforming the decree to fit present conditions.

It is unfortunate that this family of children should be broken up and the members of it separated; but separation seems inevitable, because the oldest child, having been barred from her mother's apartments, is supporting herself, and states that she does not desire to return to Wyoming, but is content to make her own way here, where she is employed. The disabled boy, Claude, is under the protection and care of his father. The youngest child, a girl of 6 or 7, should not at this time be taken from the custody of the mother. The writ is therefore dismissed.

(78 Misc. Rep. 1.)

LEHIGH & H. R. RY. CO. v. VILLAGE OF WARWICK. (Supreme Court, Special Term, Orange County. October 17, 1912.) INJUNCTION (§ 38*)-PRELIMINARY INJUNCTION-RAILROAD STATION GROUNDS -USE BY VILLAGE.

Where plaintiff railroad company acquired certain land by deed requiring plaintiff to use it exclusively for railroad purposes, and since 1861 it had been used by plaintiff and its patrons in going to and from a station and freight buildings, such use by the public, together with the removal of a water trough and hydrant therefrom by the village, did not show a dedication of the land to public use, so as to deprive the railroad company of the right to a preliminary injunction restraining the village from further work on the land during the trial of the question of right on the merits.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 86-90; Dec. Dig. § 38.*]

Suit by the Lehigh & Hudson River Railway Company against the Village of Warwick. On motion for a preliminary injunction. Granted.

Agar, Ely & Fulton, of New York City, for plaintiff.
Kane & Stage, of Warwick, for defendant.

TOMPKINS, J. I think the motion for an injunction pendente. lite should be granted, and the defendant restrained from any further

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

work upon the lands claimed to be owned by the plaintiff, until the trial and determination of the action upon the merits. The land in question was acquired by the plaintiff in 1861, by a deed which requires the plaintiff to use it exclusively for railroad purposes, and ever since it has been used by the plaintiff for general railroad purposes, and by the patrons of the plaintiff's railway, in going to and from the station and freight buildings, and incidentally by the general public. But such use of the railroad station grounds, permitted by the owner of the fee, cannot be construed as a dedication and acceptance of such lands as a village highway. In other words, by allowing the public to use the land in question as an approach to its station, the plaintiff did not relinquish its title thereto. Such use is permissive only. N. Y. Central R. R. Co. v. Village of Ossining, 141 App. Div. 765, 126 N. Y. Supp. 517; Concklin v. N. Y. Cent. & H. R. R. Co., 149 App. Div. 739, 134 N. Y. Supp. 191, and other cases.

It may be that, at the trial of this action, the defendant will prove facts showing a dedication to the public of the strip in question; but the facts presented on this motion, in respect to the removal of the water trough and hydrant, etc., are not sufficient, in my opinion, to establish an intention on plaintiff's part to entirely surrender its land to the village for public use.

Motion granted.

(78 Misc. Rep. 15.)

In re WARD et al.

(Supreme Court, Special Term, Kings County. October 15, 1912.) ELECTIONS (8 154*)-PRIMARY ELECTION-ACTS OF INSPECTORS-REVIEWELECTION LAW-INSTRUCTIONS "THIS ARTICLE."

Election Law (Laws 1911, c. 891) § 56, provides that any action or neglect of members of a political convention or committee, or of any inspector of primary election, or of any public officer or board, with regard to the right of any person to participate in a primary election, convention, or committee, or to enroll with any party, or with regard to any right given to, or duty prescribed for, any voter, political committee, officer, or board, by "this article," shall be reviewable by summary proceedings, etc., before the Supreme Court, or a justice thereof, within the judicial district where the transaction, act, or neglect of duty took place. Held, that the phrase "this article" is not limited to article 4, which does not prescribe any duties for inspectors of primary elections, but includes articles 4a and 4b, supplemental to article 4, regulating primary elections and conventions.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 156; Dec. Dig. § 154.*]

In the matter of the application of Robert B. Ward and another to review the action of the inspectors of primary elections in certain assembly districts in Kings county under Election Law, § 56. Granted. Joseph Nicchia, of New York City, for petitioners.

Melville J. France, of Brooklyn, for Charles I. Stengle.

Archibald R. Watson, Corp. Counsel, of New York City (James D. Bell and Charles J. Druhan, both of Brooklyn, of counsel), for respondents.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

STAPLETON, J. The moving papers do not show illegalities in the primary election which would change the result in relation to the candidate for member of assembly in the Sixteenth assembly district, and, in so far as the motion affects the nomination of Charles I. Stengle, the motion is denied.

The moving papers do show neglect or illegal action on the part of certain inspectors of primary election in the assembly districts of which the Eighth senatorial district is composed, in relation to the statement of result of the canvass of the votes for senator. I am bound to say, however, that they do not satisfy me that such neglect or illegal action necessarily sustains any suggestion of fraud. It is probable that the occurrences are due rather to ignorance and neglect in the performance of duty.

There is no obvious reason why the Republican inspectors should have fraudulently aided an opposing candidate, and no motive for fraud is suggested in the moving papers, or was claimed on the argument. No papers have been presented in opposition; but the learned counsel representing the officials opposes the motion of the petitioners, asserting that section 56 of chapter 891 of the Laws of 1911 has made a radical change in the Election Law relating to judicial review of the action or neglect of inspectors of primary election, to the effect that the action or neglect of those officers is not now subject to judicial review. His contention is that a review is now confined to duties prescribed by article 4 of the Election Law, which article does not prescribe any duties for inspectors of primary election. Those duties are now prescribed in article 4a.

It is sufficient for the purposes of this motion to hold that an ordinary and reasonably plain construction of the phrase "this article," contained in article 4, would include the power to review acts or neglect concerning duties imposed upon officers, not only by article 4 itself, but also by the supplemental articles 4a and 4b. Any other interpretation would be narrow, and, indeed, destructive, of other essential phrases in and features of the statute.

If this be not correct, the Legislature has taken a backward step, and the fraudulent, illegal, or negligent acts or omissions of inspectors of primary election and officers or members of political conventions are no longer subject to review. Such a design is not to be attributed to the Legislature without more cogent reason.

I decide that the ballot boxes be opened, the enrollment books examined, the true result adjudged, the boards directed to reconvene and make and file a statement of the result as so adjudged, and that a certificate be issued to the candidate lawfully elected.

(78 Misc. Rep. 2.)

SCOTT et al. v. MCCLUNG et al.

(Supreme Court, Special Term, Orange County. October 18, 1912.)

1. MUNICIPAL CORPORATIONS (8 280*)—STREET IMPROVEMENTS—ESTABLISHMENT OF GRADE.

In 1835 the trustees of the village of N. adopted a grade for a part of G. street, and in 1890 the city council, the city having succeeded to all the rights and liabilities of the village, passed two resolutions, one establishing the grade of a part of the street, as shown by a "profile of the grade," and another for another part of the street, establishing a "grade line on both sides of the street." In 1910 another resolution established the grade line of the center and both sides of another part of the street. These resolutions covered almost the whole length of the street, and the street was graded to the grades so established, and grades were from time to time given to abutting owners, in order that they might build sidewalks and otherwise improve their property. Held, that the street grade had been established, so as to preclude a change, except on petition of the owners of a major part of the abutting property.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 740-743; Dec. Dig. § 280.*]

2. MUNICIPAL CORPORATIONS (§ 280*)-CHANGE OF GRADE OF STREETS. If the proposed levels according to which a street is to be paved will tend to make it generally higher or generally lower than it is at present or has, been in the past, the paving will amount to a change in grade.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. & 740-743; Dec. Dig. § 280.*]

Action by J. Bradley Scott and others against Benjamin McClung and others. To enjoin the awarding and execution of a contract for street paving. Injunction made permanent.

See, also, 135 N. Y. Supp. 311.

Howard Thornton, of Newburgh, for plaintiffs.
Graham Witschief, of Newburgh, for defendants.

TOMPKINS, J. When this case was before me on the motion for an injunction pendente lite, I held that the city council had authority, upon its own motion, not only to make a detailed statement of the cost of a proposed street improvement, but as well to make a contract therefor. I also decided that the provision of the city charter forbidding a change of grade without the consent of a majority of the property owners of a street does not contemplate such slight changes of grade as are only incidental to the repaving of a street, and, further, that the grade lines of Grand street would not be substantially changed by the proposed work. The Appellate Division, on an appeal from the order then made, denying the plaintiff's motion for an injunction pendente lite, decided that, while the common council

"is vested with entire power to ascertain the cost of an improvement, to hold a hearing and determine the propriety of the expenditure, no express power is conferred to spend the money by making a contract for the improvement unless at least one-third of those upon whom the expense of the improvement falls have indicated their approval by making a petition."

For other cases see same topic & § NUMEER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes.

Upon the trial of this case, it appears without dispute that there was no petition of the owners of one-third of the lineal feet frontage for the proposed improvement. Hence it follows that the plaintiffs are entitled to judgment for that reason alone.

As to the second question-i. e., that of change of grade-my conclusion now, after the trial and a consideration of all of the evidence, is that the contemplated work will result in substantial changes of the grade of Grand street, and that the work cannot be done, except upon the written application of the persons owning a major part of the property adjoining said street. No such application has been made, and it follows that the plaintiffs must prevail upon this branch of the case as well. The defendants claim that Grand street has never been graded within the meaning of the second section of subdivision 2 of section 1 of title 6 of the charter of said city, and that therefore the defendants could act without first obtaining such written application. The defendants also contend that the plans adopted by them do not call for such a change of grade as is contemplated by that section, and cite the case of Stenson v. City of Mt. Vernon, 104 App. Div. 17, 93 N. Y. Supp. 309, in support thereof, claiming that the filling and cutting necessary to conform Grand street to the levels of the proposed new work is merely incidental to proper grading.

For the past 70 years Grand street has been one of the principal public streets of the city of Newburgh, and its predecessor, the village of Newburgh. On November 19, 1835, the grade of a portion of Grand street was adopted by the village trustees of the village of Newburgh. The city of Newburgh was incorporated in 1865, succeeding to all the rights, and assuming all the liabilities, of the old village. On January 7, 1890, the common council adopted the following resolution:

"Resolved, that the profile of the grade line on Grand street, between Broad and Nicholl, às prepared by the city surveyor under the direction of the mayor and street committee, be adopted, and the grade established as shown by the red line of said profile, and that the map of such profile be filed."

And on July 1, 1890, the following resolution was adopted:

"Resolved, that the grade line of both sides of grand street, from Washington to Second, be and the same is hereby fixed and established as shown on profile of said portion of Grand street, as made by Charles Caldwell, city surveyor, and on file in his office."

And on January 4, 1910, the following resolution:

"Resolved, that the grade line of the center and both sides of the following named streets be and the same is hereby fixed and established as shown by the red line on the several profiles made by W. J. Blake, Jr., city engineer, to wit: Prospect street, from Broadway to first street; Dubois street, from South to Gidney avenue; Grand street, from Clinton to Broad; First street, from Liberty to Dubois; East side of Edward street, from Renwick to South William."

[1] These resolutions cover almost the entire length of Grand street. It will be noted that the first resolution refers to the "profile of the grade line"; the second, to the "grade line of both sides";