Fourth Department, July, 1911.

[Vol. 146. blurred appearance therefrom. It is practically conceded that this could not be done. The defects were not trivial or unimportant and concededly were not made up as was the sample of the cuts furnished to the defendant. The register in the sample is practically perfect, while that of many of the cuts in the catalogue is bad, in some cases very bad, causing them to look blurred.

Mr. Hart, the expert called by the plaintiff, testified that a large number of the cuts in the catalogue, which he specifically called attention to, were out of register and presented a blurred appearance, and that the sample was practically in perfect register. His evidence in that regard is uncontradicted.

Under such circumstances, we think there is no basis for the finding that the defects in the catalogues were trivial or unimportant. According to the testimony of the defendant, he regarded them, because of such defects, worthless and of such character that he could not reasonably send them to his customers as an advertisement of his wares. Neither were such defects the result of inadvertence on the part of the plaintiff. After the defendant received the first twenty-five catalogues, he called the plaintiff's attention to the defects, advised him that he would not accept the catalogues if the balance of the order was like the few sent him, and suggested to the plaintiff that he print them over again in plain black as originally planned. Plaintiff refused to comply with this suggestion after his attention had been specifically called to the fact that the color work was defective and that because of such defect the catalogues would not be accepted.

Under these circumstances and under the rule laid down in Spence v. Ham (supra) and in the cases cited in the opinion of the court therein, we think the defendant was under no obligation to accept and pay for the catalogues in question. He had a right under his agreement to have photographs in which the coloring registered with the original printing precisely as was shown by the sample from which he made his order and which sample, as we have seen, was in practically perfect register and did not have the blurred appearance.

In this case, upon the conceded facts, the question of substantial performance does not arise, because a large number of

App. Div.]

Fourth Department, July, 1911.

the photographs were out of register and to such an extent as to make worthless all the catalogues. It is not pretended that the defects in the photographs in the catalogues could be remedied, and by inserting such defective photographs in the catalogues each catalogue was practically rendered useless or was an entirely different catalogue from that which the defendant ordered, because, as we have seen, he ordered a catalogue in which the coloring put upon the original photographs should be in practically exact register. They were not in that condition and the defendant was justified in refusing to accept or to pay for the same.

We conclude that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

LEHIGH VALLEY RAILROAD COMPANY, Respondent, v. CANAL BOARD and Others, Appellants, Impleaded with STEWARTKERBAUGH-SHANLEY COMPANY, Defendant.

Fourth Department, July 11, 1911.

Canals-barge canal — railroad — bridge over stream to be used for new route of canal-water and watercourses-navigable stream — right to bridge interference with navigation — paramount rights of State-Barge Canal Act-right of railroad to compensation for alteration of bridge — constitutional law.

A railroad corporation organized under the General Railroad Law (Laws of 1850, chap. 140) has power under section 28 of said act to construct its road across any navigable "stream of water" or water-course" which the route of the road intersects or touches, provided the corporation restores "the stream or water-course * * * thus intersected or touched to its former state or to such state as not unnecessarily to have impaired its usefulness."

Such a corporation may erect a bridge which interferes with navigation to carry its road across a stream which, although originally navigable,

Fourth Department, July, 1911.

[Vol. 146. has, because of changed conditions, been abandoned by commerce, and on which navigation has been made impossible by other structures erected with the consent and acquiescence of the State. Thus a railroad corporation organized under that act had power to build a bridge, which interfered with navigation, across the Seneca river, which although at one time used as a highway for commerce had been practically abandoned as a trade route long before, and which had been made almost unnavigable by other structures already erected. Such a bridge, under the circumstances, did not interfere with the "usefulness" of the river as a highway.

Whatever the rights of the owners of lands bordering on a navigable river, they must yield whenever the State desires to improve the stream for purposes of navigation.

Grants of land under navigable streams and the franchises and licenses having to do therewith are subject to a reserved right of the State to do whatever is reasonably necessary to preserve and promote the public right of navigation.

The Seneca river being a navigable stream did not lose its character as such because of any obstructions which were permitted by the State to exist in or over it, and the Legislature had power at any time for the improvement of navigation to remove or cause to be removed all obstructions in the river, including the bridges, at the cost of the owners, or, at its option, to require such bridges to be reconstructed so as not to interfere with navigation.

The railroad bridge before mentioned was a lawful structure when constructed, and since it was erected pursuant to a franchise granted under the Railroad Law (§ 28), it is not competent for any State official to cause it to be removed except by the authority of a statute for improving the navigability of the river.

The use of the Seneca river for the construction of the barge canal is for the purpose of increasing its navigability.

Section 3 of the Barge Canal Act, providing that "new bridges shall be built over the canals to take the place of existing bridges wherever required," applies to railroad bridges as well as to highway bridges. Section 5a of said act, providing that where bridges have been erected by any corporation across canals to be abandoned, and "where the State shall have made compensation to them on account of the expense of constructing bridges for their use in crossing the new routes provided for in this act, those portions of such abandoned canals over which such bridges extend shall not be sold," means that a corporation whose line crosses a canal which is to be abandoned, and also the new canal, shall receive compensation "on account of the expense of constructing" a new bridge for its use in crossing the new route.

It was the intention of the Legislature in passing the Barge Canal Act to provide that railroads required to change their bridges to accommodate such canal should be reimbursed by the State for such cost and expense, and the State officials and contractors will be enjoined from interfering with plaintiff's bridge across the Seneca river without making com

App. Div.]

Fourth Department, July, 1911.

pensation for all damages and expenses incurred by plaintiff in raising the bridge and making it conform to the Barge Canal Act.

The appropriation of money by the State to build a new railroad bridge for plaintiff does not violate section 9, article 8 of the State Constitution. KRUSE and SPRING, JJ., dissented, with opinion.

APPEAL by the defendants, the Canal Board and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 8th day of December, 1910, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term.

The judgment enjoined the defendants, their employees, agents and servants from in anywise interfering with a bridge constructed by the plaintiff or its predecessor in interest across the Seneca river near the village of Weedsport, N. Y., without making compensation for all damages and expenses which might be suffered or incurred by plaintiff in the raising of said bridge and approaches thereto to conform to the requirements of the Barge Canal Act, so called. The judgment also awarded costs to the plaintiff and against the defendants in the sum of $1,106.82. The judgment ran against all of the defendants but only the State officials are appealing.

The action was commenced on the 25th day of March, 1910, practically to obtain the relief awarded by the judgment.

Edward J. Mone, Deputy Attorney-General, and Thomas Carmody, Attorney-General, for the appellants.

Frank H. Platt, for the respondent.

MCLENNAN, P. J.:

The Southern Central Railroad Company was incorporated in the year 1865 under and pursuant to the provisions of the General Railroad Law, being chapter 140 of the Laws of 1850, for the purpose of constructing and operating a railroad from Sayre, in the State of Pennsylvania, to North Fair Haven, in the State of New York. As required by section 22 of the Railroad Law said company filed in the Cayuga county clerk's office the profile and maps of its proposed railroad, showing

Fourth Department, July, 1911.

[Vol. 146. its location in said county, which included crossing the Seneca river at a point in said county about seven miles west of Jack's reef and fifteen miles east of the mouth of the Clyde river. Thereafter in the year 1871 said company, claiming to act under the authority conferred by the Railroad Law and with the consent or acquiescence of the State authorities, constructed a wooden fixed bridge across said river at the point in question and as shown upon the maps and profile filed by it as aforesaid. When completed said bridge was used as a part of said company's railroad and it continued to use the same and to maintain its tracks thereon until the year 1888, when it was replaced by an iron truss bridge, which is the subject of this litigation. Such new bridge, which is commonly known as the Weedsport bridge, is a three-span iron structure, about 342 feet in length, resting upon two stone abutments, one upon each bank of the river, upon land which said company had acquired and owned in fee simple; also upon two piers placed in the bed of the river at a distance from each other the length of the middle span of the bridge. Such bridge has a clearance above the ordinary height of the water in the river of seven and seven-tenths feet. Approaches to said bridge upon either side of the river were constructed by the company upon lands acquired and owned by it. Thereafter such bridge and approaches constituted part of said company's line of railroad and ever since its construction has been maintained and operated by it or its successors in interest, all with the acquiescence of or without objection by the State officials. In 1895, by foreclosure and reorganization proceedings, duly had, all of the railroad property, rights, privileges and franchises of the Southern Central Railroad Company were conveyed to the Lehigh and New York Railroad Company, which has since been the owner thereof. In the year 1895 all of said railroad property, rights, privileges and franchises were duly leased by said Lehigh and New York Railroad Company for a term of 999 years to the plaintiff, the Lehigh Valley Railroad Company, a foreign corporation, duly created under the laws of the State of Pennsylvania, and which company prior to the commencement of this action filed the certificate required by law to enable it to carry on its business in this State.