ited to, and co-extensive with, the burying-ground as now inclosed. The defendant admits the plaintiff's title to one acre within that inclosure. The northern, eastern, and southern boundaries thereof have been quite satisfactorily established, and are not seriously disputed. The real point in controversy relates to the western boundary. After a careful consideration I have come to the conclusion that the only reasonable inference from the evidence is that the western boundary of the old burying-ground is the eastern boundary of the home lots, which lay between it and the main street on the west, for the following reasons, viz.: (1) The James Herrick home lot is one of those home lots, and the footway up that home lot, mentioned in the record of January 5, 1665, extends to and ends at the burial place. That footway is wholly upon the Herrick home lot, thus showing that the eastern boundary of the Herrick home lot and the western boundary of the old burying-ground are coterminous. (2) The acre which Herrick received in exchange is in the rear of his home lot, and must necessarily have been located outside the old burying-ground. The location thereof was not conclusively proven, but I think the evidence warrants the inference that it must have been a parcel adjoining the southern boundary of the old burying-ground as now inclosed. (3) The western boundary of the old burying-ground, as thus established, has been designated in the same manner as the other boundaries thereof, viz., by a permanent fence, for a period whereof the memory of man runueth not to the contrary;' and it satisfactorily appears that there never has been any other designation of the western boundary thereof. These facts, I think, show an actual location of the old burying-ground along the eastern boundary of the home lots. That being so, the extension thereof eastward within the present northern and southern boundaries, so as to embrace the parcel really in dispute, would seem to be reasonably established. use. "The entry in the record of 1665 does not prove that land lying eastward of the premises in dispute, and which had been devoted to a similar use, is the one acre therein referred to. On the contrary, as before stated, the acre referred to in the record is at the termination of the footway on the James Herrick home lot. The earliest burial in the eastern part of the inclosure appears to have been made in 1682. Probably there were earlier burials, but, as no memorials of them remain, it is impossible to determine in what part of the old burying-ground they were made. To hold that all of them were made in the eastern, and none of them in the western, part, would be a conclusion devoid of evidence to support it, and it cannot be presumed. Indeed there is some evidence that the old burying-ground, as now inclosed, became full of graves a century ago, and for that reason the town set apart another. Nor can the statement in the record of 1665, that the town have one acre at the burial place,' operate to limit the quantity of land actually devoted to that No doubt it is evidence on that subject, but the quantity actually set apart and appropriated to such use is better evidence. Actions speak louder than words.' It is a significant, if not a conclusive, fact that the locus in quo has, during a period extending beyond the memory of any person now living, constituted a single inclosure, and all its boundaries have been marked by permanent fences, as they now appear. By whom those fences were erected has not been, and, according to common experience, could not be, proved. But, excluding acts of the defendant to which I shall presently advert, the land inclosed has been used only for purposes of burial of the dead. That the defendant and his predecessors have until recently apparently acquiesced in such inclosure abundantly appears. These facts are sufficient to prove a practical location of the boundaries, and an acquiescence therein for more than a century. The disturbance of boundaries so established is forbidden by the law of this state. Baldwin v. Brown, 16 N. Y. 359; Hunt v. Johnson, 19 N. Y. 279. The same facts also show the possession of the plaintiff, or at least that quasi possession of which the right of burial that is to be occasionally exer cised is susceptible. Such quasi possession is prima facie evidence of property, (Best, Ev., 5th Ed. 477;) and, being supported by the grant contained in the Dongan patent, proves title in the plaintiff. "The contention of the defendant that he has title by adverse possession cannot, I think, be sustained. The conveyance from Murray and Barnett, dated May 20, 1778, merely conveys messuage, and designates the exterior boundaries thereof. Although that conveyance contained no exception of the premises in question, yet it cannot be construed as embracing a public burying-ground, because such a parcel of land from its very nature can form no part of a messuage. Moreover, the defendant testified that his claim of title under that conveyance excludes the old burying-ground. While it is true that he claimed that the old burying-ground contains only one acre, yet his claim of title under that deed must be restricted to the actual dimensions of the old burying-ground, whatever those dimensions may be. And it is apparent from , the acts of the defendant and his predecessors in title that the present area of the old burying-ground has always been treated as devoted to burial purposes. If the foregoing views are correct, there can be no doubt that some of the acts of the defendant were, in contemplation of law, trespasses on the property of the plaintiff. His use of the strips along the southern and northern boundaries of the locus in quo for roadways, and his traversing it with a cart, and other acts which it is not necessary to enumerate, were invasions of the right of property of the plaintiff, and were not done in the exercise of a right which he claims was conferred by the grant of herbage contained in the entry of January 5, 1665. It is not necessary, therefore, to consider the validity, nature, or effect of that grant. The principle is elementary that any willful invasion by a person of the right of property of another, however trifling and whether followed by any pecuniary damage or not, constitutes an actionable trespass. I think, therefore, that the plaintiff is entitled to judgment declaring that it has title, and is in possession of the locus in quo, and assessing damages sustained by reason of the trespasses alleged at six cents." Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Timothy M. Griffing, for appellant. Thomas Young, for respondent. DYKMAN, J. This is an appeal from a judgment entered upon a report of a referee in favor of the plaintiff in an action of trespass on lands. It seems to have been the object of the action to establish the title of the town to the premises in question, and although the case is involved in some obscurity, yet the title of the town seems to have been proved. The cause was tried before a referee, and he has given the case much consideration, and written an opinion which makes the case plain; and we coincide with the views expressed in the opinion and the conclusions reached by the referee. We deem it unnecessary to add anything thereto. The judgment should be affirmed, with costs. All concur. MAYO v. DAVIDGE et al. (Supreme Court, General Term, Second Department. February 11, 1889.) MORTGAGES-SATISFACTION-Evidence. A mortgage was given by a husband and wife on the wife's property, to secure any indebtedness that might arise from the husband to plaintiff on account of certain speculations. On a settlement of the accounts open at the time the mortgage was given, a balance of $500 was left due on the mortgage, but, on an account opened with other parties after the delivery of the mortgage, there was a balance of $600 admitted to be due from plaintiff to the husband on account of advances. Held, that the husband's testimony that such advances were agreed to be applied in satisfaction of the mortgage, being credible and corroborated by the circumstances, was sufficient to sustain a finding that the mortgage was fully satisfied. Following 1 N. Y. Supp. 792. Appeal from special term, Kings county. For the evidence given on a former trial of this case, which is substantially the same as that given on the second trial, and on which the judgment now appealed from was rendered, see the opinion of the general term on a former appeal, reported in 1 N. Y. Supp. 792. Argued before DYKMAN and PRATT, JJ. H. S. Snow, for appellant. F. C. Cantine, for respondents. DYKMAN, J. This is an action for the foreclosure of a mortgage. The complaint is in the usual form, and the defendants came in with an answer, which required a trial, and a trial was had, and the trial judge made the following findings: The mortgage mentioned in the complaint was delivered April 11, 1883, and was given to secure the payment of any sum which should thereafter become due from Robert C. Davidge to the plaintiff for moneys which the plaintiffs should thereafter advance for the account of said Robert • C. Davidge in speculative transactions in which the plaintiff and said Robert C. Davidge were then engaged; and, after the delivery of said bond and mortgage, the plaintiff advanced no money for the account of said Robert C. Davidge in said transactions. That before the commencement of this action all the indebtedness due from the defendants, or either of them, to the plaintiff, upon said bond and mortgage, was fully paid and discharged. As a conclusion of law, the judge found that the defendands were entitled to a judgment for the cancellation of the mortgage, and for discharging the same from the records, with costs. Judgment was then entered in accordance with such decision, and the plaintiff has appealed therefrom. The conclusion of the trial judge was reached through some contradictory testimony, but we think the findings are supported. He took the same view of the case which we took when the case was before us on appeal, and the whole transaction seems to be harmonized by the finding and decision. The judgment should be affirmed, with costs. All concur. BLACK v. CITY OF BROOKLYN et al. (Supreme Court, General Term, Second Department. February 11, 1889.) TAXATION-EXEMPTIONS-CHURCH PROPERTY. Property owned by a private person, occupied by a church building, which is not used for religious purposes, is not exempt from taxation, under 2 Rev. St. N. Y. (7th Ed.) p. 982, § 4, subd. 3, providing that "every building for public worship, ** and the several lots whereon such buildings are situated," shall be exempt. Appeal from special term, Kings county. Action by plaintiff, Alexander G. Black, against the city of Brooklyn. A judgment was entered dismissing the complaint, and plaintiff appeals. Argued before DYKMAN and PRATT, JJ. Arnold & Greene, for appellant. Almet F. Jenks, for respondents. DYKMAN, J. It is the object of this action to secure exemption from taxation for certain real property in the city of Brooklyn, and to obtain a judgment which shall declare certain taxes levied upon the property illegal and void. There was erected upon the property in question, many years ago, a church edifice, which was devoted to the purposes of religious worship. There was a mortgage upon the property, which was foreclosed, and the property was sold under a judgment in that action, and the plaintiff became the purchaser of the property at such sale, and received the deed of conveyance therefor in March, 1885, and has since that time been the individual owner thereof. The property was not assessed for taxation, and no tax was levied against the same until the plaintiff became the owner. It was used as a place of pub lic worship until August, 1887, and, as we gather the facts, it has not since been used for any purpose, but has been in the market for sale as the private property of the plaintiff. The plaintiff's claim for exemption for this property is based upon the statute (2 Rev. St. N. Y. 7th Ed. p. 982, § 4, subd. 3) which exempts from taxation "every building erected for the use of a college, incorporated academy, or other seminary of learning; every building for public worship; every school-house, court-house, and jail, and the several lots whereon such buildings are situated, and the furniture belonging to each of them." The statute quoted was not made for this plaintiff. If he can successfully invoke its provisions to secure immunity from taxation for the property in question, then any private property hired out and used for educational or religious purposes will escape taxation for the same reason. Such never could have been the intention of the legislature, and the statute is not fairly susceptible of such interpretation. The law was intended to benefit church societies and incorporations and seminaries of learning. No religious society would be benefited by the exemption of this property from taxation in the hands of the plaintiff. He is the only party interested in the question, and no other party will be prejudiced by a sale of the property for unpaid taxes. There was a similar question presented to us in Rorke's Case, 32 Hun, 457, and we refused the exemption, and our decision was affirmed by the court of appeals. 97 N. Y. 648. The reasons which induced the conclusion reached in that case have application here, and, in our view, they are unanswerable. The judgment should be affirmed, with costs. All concur. WALSH v. BROWN. (Supreme Court, General Term, Second Department. February 11, 1889.) 1. SALE-WHEN TITLE PASSES-BILL OF SALE-DELIVERY. Where an accommodation indorser, on maturity of the notes, takes a bill of sale of certain property of the maker as indemnity, but the maker makes an assignment for benefit of creditors before the bill of sale is delivered, no title passes to the indorser. 2. EVIDENCE-PAROL TO VARY WRITING. A written contract, absolute in its terms, executed to carry out an agreement for dissolution of partnership, must be taken as the final conclusion of all preliminary or previous arrangements. Appeal from circuit court, Orange county. Action by John D. Walsh against William C. Brown, as assignee of Henry K. and William M. Thompson, to recover the proceeds of a quantity of tissue paper, which both parties claim to have owned. Trial to the court, and judgment for defendant. Plaintiff appeals. Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. DYKMAN, J. This is an action for the recovery of the proceeds of the sale of a quantity of tissue paper. Henry K. Thompson and William M. Thompson were copartners in the business of paper manufacturing, under the firm name of Thompson Bros., and in October, 1887, Joseph T. Edwards became a member of the firm, and the partnership title was changed to Thompson Bros. & Co. Previous to June 14, 1888, a judgment had been obtained against Edwards, and a receiver had been appointed in that action. In June, 1888, Edwards commenced an action against his copartners for a dissolution of the partnership and an accounting in the usual form, and that suit was settled July 7, 1888, as follows: Edwards sold and assigned his interest in the property and credits of the firm to the two Thompsons, who assumed all the outstanding liabilities of the firm, and agreed to save Edwards harmless from all liability which might attach to him by reason of his membership in the copartnership firm. There was also a written stipulation, signed at the same time, by the attorneys for the respective parties to that action, which provided for the discontinuance of the action upon the payment of four promissory notes given by the Thompsons to Edwards upon the settlement of the action. On the 13th day of July, 1888, two promissory notes, for $750 each, made by the Thompsons after their dissolution with Edwards, which had been indorsed by the plaintiff for their accommodation, matured at the bank where they had been discounted. About the time of the maturity of those notes the agent of the Thompsons proposed to sell to the plaintiff a quantity of tissue paper, equal in value to the amount of those two notes, and, upon the understanding that he would receive the paper, the plaintiff paid the notes. The proposed sale was not consummated, however, until the 18th day of July, 1888, when the Thompsons gave the plaintiff a bill of the tissue paper, dated the 17th day of July, 1888, with their receipt thereon signed by them. On the 17th day of July, 1888, the Thompsons executed to the defendant, William C. Brown, a general assignment of all their property, in trust for the benefit of their creditors, and, when the plaintiff was about to take possession of the tissue paper so sold to him by the Thompsons, the delivery was arrested by the assignee; and thereupon a stipulation was entered into by which the assignee was to sell the paper and deposit the proceeds in a bank, to await the result of this action, which was to be brought to determine the ownership of the paper. With the foregoing facts before us, it is not difficult to give them their legal signification and application. If the assignment of the Thompsons was valid and effectual to pass the title to the paper to their assignee, then the plaintiff cannot recover in this action, because the assignment was prior in point of time to the bill of sale made to the plaintiff, and he is not a purchaser for value. It is the insistance of the plaintiff, however, that the assignment to the defendant never attained validity, because Edwards retained an interest in the partnership property, and therefore the Thompsons could make no general assignment for the benefit of creditors without his assent. Without a decision of the legal proposition involved in this contention of the plaintiff, we deem it sufficient to say that we find the evidence insufficient to establish the fact which underlies the argument. The trial judge refused to find it, and it rests alone upon the testimony of the receiver, which is contrary to the written bill of sale or contract executed by the parties to carry out the agreement for the dissolution of the copartnership. That instrument is absolute in its terms, and must be taken as the final conclusion and inclusion of all preliminary or previous arrangements. That view disposes of the case adversely to the plaintiff, and the judgment should be affirmed, with costs. All concur. GROLL v. PROSPECT PARK & C. I. R. Co. (Supreme Court, General Term, Second Department. February 11, 1889.) CARRIERS-INJURIES OF PASSENGERS-DANGEROUS PREMISES. A verdict of damages to one injured by tripping on a railroad station platform, while approaching it in the dark as a passenger, will not be disturbed; it appearing that the only dispute was whether the platform and its approaches were properly lighted, and that the question was properly submitted to the jury.1 Appeal from circuit court, Kings county. Action by Joseph Groll against the Prospect Park & Coney Island Railroad Company, for personal injuries. Judgment for plaintiff, and defendant appeals. 1 Concerning the duty of railroad companies, as carriers of passengers, to properly light their stations and approaches, see Grimes v. Pennsylvania Co., 36 Fed. Rep. 72, and note. |