plaintiff that defendant would not pay because the premiums had not been paid and because the house was unoccupied at the time of the fire, and had been for a long time previously, without the written consent of defendant. Thereafter plaintiff verified and served new proofs of loss. Defendant retained both proofs of loss without objection that timely notice had not been given. ing the same, or that its highway commissioners had funds or means of acquiring them. Motion by plaintiff for a new trial on exceptions ordered heard at General Term in the first instance. Action to recover for injuries to a horse by reason of a defective bridge. The complaint alleged that plaintiff was the owner of a stallion of great value, and that on July 18, 1882, while travelling on a public highway in the town of Hounsfield, without plaintiff's fault, the horse was injured and disabled by falling through a defective bridge on said highway; that such defective condition of the bridge and highway was 3" caused by the neglect of said de Held, That from these facts the referee would have been justified in finding that the third defense had been waived. 12 N. Y., 81; 80 id., 108. Undisputed facts sufficient to justify such a finding appearing in the case, this court may infer, in support of the judgment, that the fact was so found. Lans., 155; 40 N. Y., 248. Judgment affirmed, with costs. Opinion by Follett, J.; Merwin and Vann, JJ., concur. TOWNS. NEGLIGENCE. PLEADING. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Thomas W. Eveleigh v. The Town of Hounsfield. Decided Oct., 1884. The liability of towns is not extended by bridge, the complaint must allege that de- fendant, its commissioners of highways, officers and servants of its and their duties;" that long before said accident the pathmaster noti fied defendant's commissioners of highways that said bridge was unsafe and unfit for the purposes for which it was used and built, and said defendant neglected and refused to repair said bridge until after the injury complained of. There was no averment that the bridge and highway were defective at the time of the previous annual town meeting, or in such condition as to call on the commissioner to avail himself of the power to raise additional moneys. On the trial plaintiff offered to prove all the allegations of the complaint, which the court refused, and granted a motion to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action "on the ground that the complaint contains no allegation that the highway commissioners of the town had funds or had neglected to take any steps to procure them, or any facts showing negligence in that regard." H. M. Wilber, for motion. Lansing & Rogers, opposed. Held, No error; that the complaint should have contained a positive allegation that defendant had funds or means of acquiring the same, or that its commissioners of highways had funds or means of acquiring the same. By Chap. 700, Laws of 1881, towns were made liable "in cases in which the commissioner or commissioners of highways of said towns are now by law liable there for, instead of such commissioner or commissioners of highways." Before the passage of that statute it was held settled that it was the duty of commissioners of highways to repair defective highways and bridges" after notice of their condition with a reasonable and ordinary degree of diligence, if they have sufficient funds in their hands or authority to procure to the enforcement of any obligation on the part of the commissioners to repair. 2 Hill, 619; 29 N. Y., 297; 24 Hun, 472. We think the liability of the town has not been extended to cases in which the commissioner or commissioners were not liable prior to the passage of the statute of 1881. That statute was not remedial: it simply substituted the town as a party defendant in the same cases in which the commissioner or commissioners were liable prior to the passage of the statute. 30 Hun, 168; 6 Hill, 382. It will not do to presume that a public officer has neglected his duty. 5 Hun, 338. A commissioner of highways has no power to pledge the credit of the town for the purpose of repairing bridges. or highways. 93 N. Y., 397. Warren v. Clement, 24 Hun, 472, distinguished. Motion denied and judgment ordered for defendant, with costs. Opinion by Hardin, P. J., Boardman and Follett, JJ., concur. TRESPASS. such funds, and neglect of this N. Y. SUPREME COURT. GENERAL duty renders them liable to any person injured thereby. 44 N. Y., 113; 24 Hun, 472; 29 N. Y., 297; 2 R. S., 7 ed., 1212, § 1. It was also well settled that in an action against the commissioners of highways for neglect of duty it was necessary to allege and prove the existence of funds or specific means provided by the statute as a condition precedent other TERM. FIFTH DEPT. William Burk, applt., v. John Quinn, respt. Decided Oct., 1884. In an action of trespass plaintiff made a prima facie case by proving his recent improvements and acts upon the land, and defendant's offer to prove that he had been in exclusive possession of the premises for the last 19 years was excluded, on the ground that the inquiry must be confined to the last year. Held, Error. that no proof could be added on that question for the period anterior to the last year. Taking possession may not be actual possession or occupancy; the latter is the condition following the taking of possession which will permit one to exercise his power over property or premises at his pleassure. 1 Mackeldy's Civ. Law, 236, § 229; Burr. L. Dict., Possessio. And after that relation is produced to one, another may not by entry and in the exercise of some power over premises be deemed as having the actual possession. The evidence offered was competent and material. See 1 Mackeldy's Civ. Law, §§ 240, 244, 246. Appeal from County Court judg- | session, or permit the conclusion ment reversing justice's judgment. Trespass. The damages claimed arose from the burning by defendant of a brush fence. The premises are marsh lands adjoining and lying north of improved lands of the parties. In the winter and spring of 1881-2, plaintiff cut the brush on a part of the marsh adjacent to his land and that of defendant, and cut a ditch on the north of the improvement part of the way, and put a brush fence on the rest of that side; made a wire fence on the west side of it and along north of defendant's land, and near it made a brush fence, this being on the north side of a ditch made by defendant. In May, 1882, plaintiff turned his cattle into the inclosure thus made. In June following, defendant burned part of the brush fence last mentioned. Defendant offered to prove that he had been in the exclusive possession of the premises in queestion for the last 19 years, which offer Judgment of County Court affirmed. Opinion by Bradley, J.; Smith, P. J., Barker and Corlett, JJ. concur. EMINENT DOMAIN. was excluded, the court holding N. Y. SUPREME COURT. GENERAL that the inquiry about possession "must be confined to a recent time-say within the last year." Wm. Porter, for applt. Chester M. Elliott, for respt. Held, Error. The case turns on the question of actual possession. Plaintiff's proof does not exclude the possibility of defendant's proving the possession as declared in his offer. The fact that defendant did testify that he had not occupied the premises since the fall before the trial does not necessarily deny the fact of pos TERM. FIFTH DEPT. In re petition of the N. Y., L. & W. RR. Co., applt., for ap pointment of commissioners to appraise lands, &c., of Harriet A. Bennet et al., respts. Decided Oct., 1884. The measure of damages for property taken for railroad purposes is its fair market value based on existing conditions and not on speculations of future developments. Where the parties have made a contract of bargain and sale of the premises, leaving the question of consideration to be decided by certain commissioners named, who are to proceed under the statute, and the contract reserves to the parties the right to appeal from their decision, Held, That the court upon setting aside the award on appeal cannot direct the appointment of new commissioners. Appeal from appraisal and report of commissioners and from Special Term order of confirmation. Proceeding by petitioner to acquire lands in Buffalo. Negotiations resulted in a written contract between petitioner and respondents Bennett, whereby petitioner agreed to buy and they to sell the premises. Petitioner agreed to proceed under Ch. 140, Laws of 1850, as amended, for the purpose of ascertaining the compensation which should be paid. It was agreed that H., D. and C. should be appointed commissioners to determine the compensation, the decision of a majority of them to be binding. It was agreed that all rights of appeal given by law should be reserved to either party. Proceedings were had accordingly, and the persons agreed upon were appointed commissioners by order of court; and after hearing proofs two of them made a report appraising the value of the premises and the amount of compensation to be paid at $469,375, which report having been confirmed this appeal was taken. The property was the Union elevator on Buffalo creek. There was a difference in the estimates of witnesses for the different parties as to the value of the property of about $500,000. The highest estimates were based largely upon the earnings which, under certain assumed conditions, might be made with the property. The Union elevator is small, compared with the 36 or 38 others at Buffalo, and it has not done much business of late years; of all the elevators more than one-third are idle, but they have a revenue from the earnings of the others, arising from a combination between them, and by which they receive shares in the so-called Western Elevator Co., according to their capacity and facilities. This arrangement cuts off competition and makes the business more profitable than it would otherwise be. Respondents have an interest in the company, but do not control it. Evidence was admitted of the earnings of the first-class elevators and as to how the Union elevator could be so increased in capacity by the requisite expenditure as to produce a profitable income, and as to the estimated value of the premises for elevator purposes. Respondents were also allowed to prove that by operating their elevator in connection with another one, by the improved means of machinery, the quantity of grain handled might be increased; that respondents had an offer of connecting facilities with the N. Y. C., &c., R. R.; and that the property might be valuable as a coal-yard in connection with coal-shutes on adjacent property. John G. Milburn, for applt. Held, Respondents are entitled to the fair market value of the property, and that is the basis upon which the estimate should be made and allowed by the witnesses and the commissioners. 19 Wend., 678, 690; 13 Barb., 169; 9 Hun, 104; 27 id., 151; 29 id., 609. See 6 Allen, 115; 103 Mass., 365; 113 id., 262; 112 id., 305-6; 127 id., 358, 363. Such value is to have relation to the time in question and is not confined to any particular use, but the then market value may be given as for any use for which the property is the most advantageously adapted. 98 U. S., 403; 13 Gray, 546; 5 T. & C., 217; 6 Hun, 149, 154; 29 id., 1. Speculations of future developments and property relations are not a proper basis of estimate. 117 Mass., 302; 27 Hun, 151. Individuals hold their property subject to be taken for public uses, 17 Wend, 669; 13 Barb., 171; but it is not intended that such taking shall be a matter of profit to the owner, nor is it done for his benefit, 9 Hun, 104, 106, but to give him full compensation measured upon a proper basis. 22 Hun, 176, 179. Much of the testimony was improperly admitted. 117 Mass., 302, 306; 127 id., 358, 362; 19 Wend., 690; 27 Hun, 149, 154. The conclusion must be that the commissioners reached their result by the application of erroneous principles to the appraisal of the value of the property. The value is to be estimated as of the date of the contract. 29 Hun, 336. We think the contract still continues to speak, and we cannot order a new appraisal by other commissioners. 50 N. Y., 250. Order reversed and appraisal and report set aside. Opinion by Bradley, J.; Barker, J., concurs; Haight, J., concurs, except as to the power to direct new appraisal before new commissioners, upon which question he dissents; Smith, P. J., not sitting. MUNICIPAL CORPORATIONS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Carl Nagle, applt., v. The City of Buffalo, respt. Decided Oct., 1884. In an action ex delicto against a city, it is not necessary to allege in the complaint that the claim has been presented to the common council for audit, as required by the city charter. Appeal from Special Term judg ment, sustaining demurrer to complaint. Action for injuries alleged to have been caused by a street and sidewalk of the city being out of repair and unsafe. The demurrer is founded on the fact that the complaint does not show that plaintiff's claim for damages was, before suit, presented to the common council for its audit, as required by the city charter. Daniel Wallen, for applt. Edward C. Hawks, for respt. Held, That plaintiff's cause of action is founded in the principles of the common law; it is not statutory, and it was complete without presenting his claim to the common council. That requirement of the charter is in the |