Opinion of the Court, per RAPALLO, J. under that agreement, and that in pursuance of it he surrendered a large amount of bonds of the La Crosse & Milwaukie Railroad Company, thus entitling himself to the benefits of the agreement. Being such party, he also necessarily assented to the issue of the new stock to the old stockholders. Although this might not prevent his asserting any equitable rights which he might have as a creditor, to the application of the new stock to the payment of his claims, yet it would preclude him from claiming as against the new company after they had distributed the new stock in pursuance of the agreement, and he would be obliged to follow it in the hands of the old stockholders who might have received it. There is no allegation in the complaint that any of the defendants have in their hands any of the stock thus appropriated to the old stockholders of the La Crosse & Milwaukie Railroad Company. Even if it be assumed, therefore, that the plaintiff was a creditor of the La Crosse and Milwaukie Railroad Company, as claimed, and that he could pursue his remedies in equity without having exhausted his legal remedies or established his status as a creditor by the recovery of a judgment, and that his right would not be barred by delay, the facts alleged in the complaint do not show that any of the defendants have in their hands any property applicable to the payment of his demand, or that he has any cause of action against them, unless by virtue of some right conferred upon him by the agreement of October 3, 1861. Under that agreement he clearly cannot claim to have provision made for any unsecured and unliquidated demand for damages, or otherwise, arising under his contract of December 3, 1856. The agreement of October 3, 1861, provides only for the redemption of different classes of bonds therein specified, held by the parties to the agreement, and which they should surrender to the trustees. It makes no provision for general unsecured creditors. To meet this difficulty, the plaintiff claims that, inasmuch as according to his construction of the agreement of December, 1856 (the correctness of which construction it is not necessary to question), the La Crosse and Milwaukie Railroad Company Opinion of the Court, per RAPALLO, J. ought to have issued to him a sufficient additional amount of bonds to make up the amount of the purchase-money of the iron at the reduced price of the bonds, he is now entitled to be treated precisely as if the additional bonds had been actually issued to and held by him at the time of the agreement of October 3, 1861, or of the distribution of the bonds and stock of the Milwaukie and St. Paul Railroad Company, under that agreement, and that the defendants, or some of them, hold the property formerly of the La Crosse and Milwaukie Railroad Company subject to the trust of making provision according to that agreement for the additional bonds which the plaintiff should in equity be thus supposed to hold. The insuperable difficulty in the way of granting relief on this theory is that the agreement of October 3, 1861, provides only for bonds actually issued and outstanding. In the scheme which was the basis of the agreement, the numbers and amount of these bonds are specifically stated, and specific amounts of new bonds and preferred stock are appropriated to the redemption of such bonds, and the rates at which different classes of them are to be redeemed are specified. And the agreement provides only for the redemption of the specific bonds described in the scheme, viz.: First issue land grants numbered 1 to 1,991, medium issue land grants 1,992 to 2,500, second issue land grants 2,501 to 3,950, and $500 bonds numbered 1 to 100, making in all $4,000,000 of land grant bonds. This was the class of bonds the plaintiff's firm was to have received in payment for iron under the agreement of 1856, and if he had received the additional bonds claimed it is clear that they were not provided for by this agreement. He was a party to the agreement, and necessarily assented to the limitation of the amount of land grant bonds to be redeemed to $4,000,000. The parties to the agreement of October 3, 1861, entered into it with reference to the known existing obligations of the company, and arranged their scheme accordingly. However equitable it might have been in a controversy between the plaintiff and the La Crosse and Milwaukie Railroad Company to have treated as done that which they ought to have done, it SICKELS- VOL. IV. 44 Statement of case. certainly would not be equitable as to third parties, who made their arrangements, predicated upon what the company had actually done, to extend this fiction to them, so as to affect their rights as between each other. I am unable, after a careful examination of the complaint, to discover any theory upon which the plaintiff is entitled to relief in this action upon the facts alleged. It is, therefore, unnecessary to consider the minor objections to the joinder of parties, etc., set forth in the demurrers. The judgment should be affirmed, with costs. JANE E. WIGGINS, Appellant, v. PATRICK MCCLEARY, Respondent. Where the owner of a tract of land lays it out into lots, and intersects it with a street or alley for the convenience of the lots, and sells a lot bounding it upon said street or alley, the purchase being made in reference to such convenience, the purchaser acquires an easement in the street or alley which cannot be recalled. Such an easement is not lost by mere non-user, and where the non-user is claimed as evidence of an abandonment of the right, it is a question of intent dependent upon the circumstances, and therefore, a question of fact. (Argued April 26, 1872; decided May 3, 1872.) APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendant entered upon the decision of the court at Special Term dismissing plaintiff's complaint. The action was for an injunction restraining defendant from trespassing upon an alley called Howard's court, in the city of Brooklyn. The premises were originally owned by Joshua Sands, who laid it out into lots and laid out the alley. The alley ran west from Main street; all the lots along it were bounded thereon, it being referred to in the deeds Opinion per CURIAM. as "an alley." The alley ended at defendant's lot, which was bounded thereon. Evidence was given tending to show that defendant and his grantors had not used the alley for twenty-two years. The court found that defendant had an easement in the alley, that it had been dedicated to the use of the owners of the lots bounded thereon, including defendant, and directed the dismissal of the complaint. Philip S. Crooke for the appellant. The case is a proper one for an injunction. (U. R. Co. v. Bolton, 3 Railway Cases, 345; Carpenter v. Gwynn, 35 Barb., 396; S. and N. R. R. Co. v. S. and G. R. Co., 4 Eq. Cases, 174; Hervey v. Smith, 1 K. & J., 389.) If any easement ever existed, the voluntary abandonment thereof was a waiver. (2 Wash. on Real Prop., 47; 3 Kent Com., 449; Reg. v. Charley, 12 Jurist. R., 1850, p. 822; Ward v. Ward, 14 Eng. L. & E., 413.) Sidney V. Lowell for the respondent. Defendant has an easement in the alley. (Matter of N. Tenth St., 48 Barb., 211, 221; Child v. Chappell, 5 Seld., 237.) The easement having been acquired by deed, was not extinguished by nonuser. (Jewett v. Jewett, 16 Barb., 150; Sengles v. Hastings, 22 N. Y., 117.) Per CURIAM. If it be granted that the plaintiff showed upon the trial that she had the title in fee or otherwise to the alley, still, if the defendant had a right to the user of it for the purpose complained of, she cannot maintain her action. The finding of the learned justice who tried the case determines that he had such right. It is not put upon actual use by him and his grantors for such period, and in such manner, as to constitute a possession adverse to the owner of the real title. It is put upon the effect of the conveyances in evidence. These conveyances are not set out in the papers before us. But the synopsis of them furnished, and the oral evidence in Opinion per CURIAM. the case, indicate this: that Joshua Sands was once the owner of a tract of land upon which this alley, and the lots now abutting upon it, are situated; that Sands laid out this tract into lots; that he laid out this alley; and that he then conveyed lots, in terms bounding them upon the alley. There was enough in evidence to warrant the learned justice in inferring that these lots were sold and bought with reference to this alley as a continuing convenience to them; and in finding that there was an easement in the alley, conveyed to the purchasers and their assigns. The conveyances do recognize this alley as a visible and permanent boundary of the lots described as abutting upon it. In the oral testimony, though it is conflicting, there was matter which tended to show a use of the alley by the grantees in the conveyances and their assignees. It is well settled that where the owner of a tract of land lays it out into lots, and intersects it with a street or alley, obviously for the convenience of the lots, and purchases are made in reference to such convenience, and conveyances are given bounding lots upon such street or way, recognizing it as an established and permanent subject of use by the owners of the lots, there is created in the owners an easement in the street or way which cannot be recalled. (Trustees, etc., v. Cowen, 4 Paige, 510.) Bissell v. N. Y. C. R. R. Co. (23 N. Y., 61), in which MASON, J., says of a deed of lots bounding them upon a street, not public, because not accepted by the authorities, that, as between the grantees and the grantor, his conveyance, per se, dedicated it to their use as a street. Whatever may be the evidence as to non-user by the grantors of the defendant, if it go no farther than is claimed by the plaintiff, it does not impair the right which he obtained from them. A right of way created by deed is not lost by mere non-user. (Smyles v. Hastings, 22 N. Y., 217; Arnold v. Stevens, 24 Pick., 106.) And where non-user is evidence of an abandonment of a right, it will depend upon the circumstances, and is a question of intention. (Ward v. Ward, 14 |