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plaintiff of leakage of the roof, or that it was out of repair. To this second separate answer the plaintiff demurred on the ground that it was insufficient in law upon its face. The court below sustained the defendant's demurrer to the plaintiff's second cause of action, and overruled the plaintiff's demurrer to the defendant's second separate defense, and dismissed the plaintiff's complaint. The defendant's demurrer relating only to the plaintiff's second cause of action, the first cause of action was not affected by the issue of law thus raised. The only theory upon which the entire complaint could be dismissed would be that the defendant's second separate defense, which was held to be a good one, was a complete and unassailable defense to any action on the part of the plaintiff, either in tort or for breach of the contract of letting.

While all the allegations of negligence set forth in the first cause of action of the complaint are without objection incorporated in and made a part of the second cause of action stated therein, the plaintiff's counsel does not claim that the latter cause of action is in tort, but insists that, notwithstanding the provision in the lease with respect to notice of leakage of the roof, it states a good cause of action for breach of contract. It is quite plain that no legal eviction is pleaded, and hence there was no breach of the covenant of quiet enjoyment.

The question to be determined, therefore, is whether the defendants, when they themselves permitted the roof to be occupied in a manner likely to and which did make holes in it, and permitted a business to be carried on from which débris would be likely to accumulate and cause a stoppage of the drainage pipe, and which in fact happened, thus flooding the roof, were under the terms of the lease entitled to notice that the roof was in a leaky condition before they could be held liable for any resulting damages.

The covenant with respect to keeping the roof in repair is one of several mutual covenants contained in the lease for the care and use of the demised premises. The provision exonerating the defendants from liability for any damage caused by leakage of the roof, unless they shall neglect to make repairs within a reasonable time after receiving written notice of such defect, must be deemed to refer to defects arising from ordinary wear and action of the elements, and not from those caused by the affirmative acts of the defendants themselves, or by negligence on their part. If the defendants deliberately tore up a portion of the roof, or made holes in it, it could hardly be claimed that they would not be liable for any resulting damage until their tenants had given them notice that water leaked through. The law is not so unreasonable as to assume that the parties to the contract contemplated that a notice should be given under such circumstances. If the defendants permitted the roof to be occupied in such a way as was likely to and which did, with their knowledge, as alleged in the complaint, break it and make holes in it, the act was their own act, and the plaintiff was not obliged to give them notice of the defect which they themselves had caused. The defendants having covenanted to keep the roof in repair, it was their duty so to do, and if they failed to perform it they were responsible for the damages resulting from such failure. O'Rourke v. Feist, 42 App. Div. 136, 59 N. Y. Supp. 157. If the pro

vision of the lease with respect to their not being liable in damages for any leakage until notice of such defect in the roof was given them by the plaintiff, with a reasonable time thereafter to make the repairs, does not apply to defects caused by their own acts (and as we construe the agreement it does not), it follows that no notice was necessary, and that the second count of plaintiff's complaint states a good cause of action for breach of contract.

The defendants' second separate answer pleads lack of notice as a defense to plaintiff's cause of action, alleging negligence. Presumably a good cause of action in tort is stated, for the defendants have answered instead of demurring. If the provision of the lease with respect to notice were as broad as defendants claim it to be, it would not apply to exempt them from liability for their own negligent acts. The general words of a contract limiting liability will not be presumed to include exemption from negligence unless so expressed in unequivocal terms. Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28. The negligence charged is the act of defendants themselves, and under our construction of the contract, to the effect that notice was not contemplated respecting defendants' own acts, the lack of notice of defects caused by such acts constitutes no defense.

That portion of the complaint demurred to stated a good cause of action, and the separate answer demurred to set forth no defense, and the interlocutory judgment should be reversed, with costs, and the defendants' demurrer to the second cause of action of the complaint overruled, and the demurrer of the plaintiff to the second separate defense of the answer sustained, with costs, and with leave to the defendants to withdraw their demurrer and serve an amended answer upon payment of the costs of this appeal and in the court below. All concur.

(114 App. Div. 723).

PEOPLE V. BROOKLYN COOPERAGE CO. et al. (Supreme Court, Appellate Division, Fourth Department. July 12, 1906.) 1. STATES-POWER TO INCUR INDEBTEDNESS-CONSTITUTIONAL PROVISIONS-AID TO UNIVERSITY.

Laws 1898, p. 230, c. 122, authorizing Cornell University to establish a college of forestry, empowering it to acquire at the expense of the state forest lands for the purpose of conducting experiments in forestry, and containing an appropriation to carry out the provisions of the act, is constitutional; the appropriation being assumed not to be in aid of the university, within Const. art. 7, § 1, and article 8, § 9, declaring that the credit of the state shall not be loaned to any individual, association, or corporation.

2. COLLEGES AND UNIVERSITIES-EDUCATION IN FORESTRY-STATUTES.

Under Laws 1898. p. 230, c. 122, authorizing Cornell University to create a college of forestry and empowering it to purchase at the expense of the state forest lands for the purpose of conducting experiments in forestry, etc., the university is a trustee of the lands acquired by it, and it cannot be deemed the absolute owner thereof, so as to permit it to use or dispose of the same as it may choose.

3. SAME.

While, under Laws 1898, p. 230, c. 122, authorizing Cornell University to establish a college of forestry, and to acquire at the expense of the state forest lands on which experiments in forestry shall be conducted as it

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may deem most advantageous, etc., the manner of doing the work in instruction in scientific forestry is left to the discretion of the university; yet the university is not permitted to do what it sees fit in the way of denuding the forest lands acquired under the act, and cut or permit to be cut timber thereon in such quantities as to destroy the forests, without regard to the interests of the state, or the duty which the university, on accepting the provisions of the statute, has undertaken to perform. 4. SAME.

Laws 1898, p. 230, c. 122, authorizes Cornell University to establish a college of forestry, and to acquire at the expense of the state forest lands on which experiments in forestry as it may deem advantageous to the state shall be conducted. The university accepted the provisions of the act, and thereafter conveyances of forest lands were made to it by deeds providing that the lands were for the purposes mentioned in the statute, and that the lands should at the expiration of 30 years become a part of the forest preserve. The university thereafter entered into a contract with a third person, whereby he was authorized to cut and remove substantially all the merchantable timber on the lands thus conveyed. third person had knowledge of the obligations assumed by the university. Held, that the third person acquired no greater interest in the lands than the university had, and neither the university nor the third person had the right to devastate the lands without any attempt to carry on the work of scientific forestry.

5. SAME.

The

Laws 1898, p. 230, c. 122, authorizes Cornell University to establish a college of forestry and to acquire at the expense of the state forest lands on which experiments in forestry shall be conducted, and provides that at the expiration of 30 years forest lands acquired by the university shall be conveyed to the state. The university accepted the provision of the act, and acquired forest lands paid for by the state. It then entered into a contract with a third person, authorizing him to cut and remove the merchantable timber on the land without any attempt to carry on the work of scientific forestry. Held, that the state, whether its rights were legal or equitable, was entitled to the aid of the court in the enforcement of the statute with respect to the lands acquired thereunder.

Appeal from Special Term, Albany County.

Action by the people against the Brooklyn Cooperage Company and another. From an interlocutory judgment overruling a demurrer to the complaint, defendant the Brooklyn Cooperage Company appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, NASH, and KRUSE, JJ.

Edward M. Shepard, for appellant.

Julius M. Mayer, Atty. Gen., and Edward B. Whitney, for the People.

KRUSE, J. The question involved is the right of the state in, and its dominion over, the so-called "College Forest," consisting of about 30,000 acres of land in the Adirondack region, which were conveyed by the Santa Clara Lumber Company to Cornell University on December 21, 1898, the consideration of $165,000 being paid wholly by the state. The deed was made out and the consideration paid pursuant to the provisions of chapter 122, p. 230, of the Laws of 1898, entitled "An act to promote education in forestry, to encourage and provide for the establishment of a college of forestry at Cornell University, and making an appropriation therefor," which became a law on the

26th day of March, 1898. That act authorized the trustees of Cornell University to establish a department in the university to be known as the "New York State College of Forestry," for the purpose of education and instruction in the principles and practices of scientific forestry, upon acceptance by the university of the provisions of the act. For the purpose of carrying out the object of the act, it authorized the board of trustees of the university, with the consent and approval and under the direction of the forest preserve board of this state, to purchase and acquire not more than 30,000 acres of land in the Adirondack forest. It was provided that the university should have the general possession, management, and control of the land, and, through its trustees and College of Forestry, conduct upon said land such experiments in forestry as it may deem most advantageous to the interests of the state and the advancement of the science of forestry, and plant, raise, cut, and sell timber at such times, of such species and quantities and in such manner as it may deem best, with a view to obtaining and imparting knowledge concerning the scientific management and use of forests, their regulation and administration, the protection, harvesting, and reproduction of wood crops, and earning a revenue therefrom; and to that end to appoint a faculty for the school, and a forest manager, rangers, and superintendents, and incur such other expense in connection therewith as might be necessary for the proper management of the college and the care of the lands for the purposes of the act and within the amount appropriated.

Section 4 of the act reads as follows:

"Every deed or conveyance of lands acquired under the provisions of this act by said university shall contain in the habendum clause thereof a condition and covenant that the same, and the title to the land conveyed therein and thereby, is taken by the grantee therein named, the Cornell University, under and pursuant to the provisions of this act; and shall also contain an express covenant running with the land and binding upon said university, that the same is conveyed for the uses and purposes in this act provided for, and also an express covenant on the part of said university to convey said lands to the people of the state as hereinafter provided for. Every such conveyance shall be executed in duplicate, one of which shall be recorded in the office of the clerk of the county where the land is situated, and the other in the office of the Secretary of State."

The act further required Cornell University to keep all moneys from state appropriations for the college in a separate fund, and required a report of the expenditures and of the general operations of the college to be made to the Legislature, and that all sums received by the university from the sale of timber or otherwise under the act be immediately paid to the State Treasurer, and credited to the fund appropriated from time to time for the purposes of the act.

Section 8 provided:

"Subject only to the powers, duties and responsibilities vested in or imposed upon the trustees of Cornell University by this act, and except as may be inconsistent with this act and the objects and purposes herein provided for, the land so purchased shall be deemed to be and shall be regarded as a part of the forest preserve, so far as may be necessary for the protection of fish, game and forests as prescribed by the fish, game and forest law and the jurisdiction, supervision, powers, duties and responsibilities of the fish, game and forest commission, and of the fish and game protectors and foresters,

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authorized by the fish, game and forest law, except as may be inconsistent with the provisions of this act, shall extend and apply to the land so purchased hereunder for the purposes of this act."

Section 9 of the act provides for the conveyance of the lands after the expiration of 30 years from the time the act took effect, which was on the 26th day of March, 1898. It reads as follows:

"Upon and at the expiration of thirty years from and after the taking effect of this act, all lands and each and every part and parcel thereof, purchased by said university, and paid for by the state under and pursuant to the provisions of this act, shall be by the board of trustees of said university, or its sucessors, granted and conveyed to the people of the state of New York by a good and sufficient deed of conveyance, without further price or consideration therefor, and the same shall thereupon be and become a part of the forest preserve. Nothing herein contained, however, shall be held or construed to render it obligatory upon the trustees to accept the provisions hereof."

The act appropriated the sum of $10,000, and was passed with a three-fifths quorum being present. On the 1st day of April, 1898, the board of trustees of Cornell University by a formal resolution accepted the provisions of the act, and the deed of conveyance was thereafter, and on the 21st day of December, 1898, made to it by the Santa Clara Lumber Company, at which time most of these lands were covered with a forest. Soon after this conveyance the university took possession of the lands, and on or about May 5, 1900, entered into a contract in writing with the defendant, the Brooklyn Cooperage Company, whereby the cooperage company was required to erect and maintain on the college forest two or more factories, at least, one for the manufacture of staves and heading, and at least another for the manufacture of the products of wood distillation, permitting the company to maintain the necessary buildings and structures, to use any water power upon the college forest for the purpose of its plants, with a right to construct and maintain dams; holding the university harmless, however, from any damage resulting from any construction or maintenance or use of the water power, and providing, further, that this should not imply any warranty on the part of the university. Also permitting the cooperage company to produce and use electricity or other agents for fire, heating, lighting, or telephone service for the use of its plant, or other uses of the college forest or the adjoining tracts; "provided, however, that no such use shall be permitted which shall be inconsistent with the purposes for which the college forest has been acquired by the university." The university further assumed by said contract to give to the cooperage company the right, subject to the terms and conditions of the agreement, "to take and use all the maple, beech, and birch wood and timber of merchantable trees now upon the college forest, and also such spruce and other soft woods as under proper forestry management it shall become proper to cut; but the university may in its discretion reserve all or any of the timber standing alongside of rivers, streams, ponds, highways, or fire lines to the width of not to exceed twenty-five rods, and altogether not compromising more than 1,500 acres of the whole college forest. The university shall also have the right to accept and dispose of and sell separately such firewood and stovewood as is required for local use, not to exceed 1,500 cords