ed.) 641, § 28. In 16 Wend., 285, where the result was similar to that in this action, it was held that each party was entitled to costs. In that case there were not separate counts in the declaration, but it was substantially as the complaint was in this case, for the recovery of the possession of property alleged to have been wrongfully withheld by defendant, but the court did not regard the form of the declaration as a legal obstacle to the right of defendant to costs, and as it was not so in that case it could not be in those arising under a similar provision contained in the Code.

In 9 Abb., N. S., 310, it was conceded that each party would have been entitled to costs if the Code of Procedure had contained the provision now embodied in the present Code. That, under the present law, is consequently an authority in favor of defendant's right to costs, and it is substantially maintained by 16 Wend. 285, because of the identity of its controlling circumstances with those existing in this case.

pealed, either expressly or by implication, by the general law of 1880 on the same subject, and both of said statutes stand together and are applicable to the city of New York, and proceedings in said city may be taken under either of them, and, if such proceedings conform to either of said statutes as to the filing of the lien, the lien is valid.

Appeal from judgment rendered on the report of a referee in an action to foreclose a mechanic's lien upon premises situate in the city of New York.

One of the defenses set up to the action was that, under Chap. 379, Laws of 1875, plaintiff, being a subcontractor, was obliged to file his claim within 30 days after the completion of the work or furnishing of the materials for which the lien was claimed, and that he had failed to do so. Plaintiff insisted that his lien was filed under Chap. 486, Laws of 1880, which permitted the filing of a lien within 30 days after the completion of the building towards the erection of which the materials were furnished, and that the lien in question was filed within that time. In response to this propo

the act of 1880 did not apply to the city of N. Y.

MECHANICS' LIEN.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

William F. MacRae, for applt. Wm. Hildreth Field, for respt. Held, That it was decided in McKenna v. Edmonston, 91 N. Y., 231, that the mechanic's lien law of 1880 was a general law and ap

Peter Loonan, applt.

Decided Jan. 9, 1885.

The Mechanics' Lien law of 1875 applicable solely to the city of New York was not reVol. 20.-No. 23b.

state, including the city of New York, but that the mere fact that the city of New York was included within its purview was not

sufficient to indicate an intention on the part of the legislature to repeal the act of 1875 applicable solely to that city, and that, since there was no express repeal of the statute of 1875 by that of 1880, if the former was repealed by the latter it must be upon the ground that the two could not consistently stand together, and that therefore there was a repeal by impli cation.

That it follows as a necessary result of this interpretation that the two statutes stand together and are both applicable to the city of New York, and that the proceeding may be under either of the statutes, and that, if it conform to either as to the filing of the lien, the lien is valid. Daily Reg. Sept. 16, 1882; 19 W. Dig., 338; distinguished.

Judgment affirmed.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur.

seriously ill, delivered them to a third person, B., upon his promise to pay the admission fee, and the latter mailed them to the applicant, who died before the mail arrived. B. forthwith forwarded the amount of the admission fee to the agent, with information of the death, who remitted it to the home office. Upon learning these facts, the association tendered back the money. Held, That the agent had no authority to waive the essential conditions requisite to membership, and his acts were not binding on the association, and the applicant was not a member at the time of his death.

Appeal from order sustaining exceptions to report of referee, and disallowing claim of Sarah Van Vliet to funds in, or to come into, the hands of the receiver.

The by-laws of the association constituted its officers an execu tive committee, to whom all applications were required to be referred, and authorized them to make all contracts for the association, and further provided that any person in good health, etc., between the ages of 20 and 55, may become a member on approval by the executive committee. "Application must be in writing, aecompanied by the certificate of a physician. Every member shall board of trustees may require." pay such an admission fee as the

The question was whether appellant's testator ever became a

member of the association. On May 25, 1881, he made application in writing for membership in classes A., B. and C., and delivered the same to the agent at La Colle, in Quebec, who sent the same forthwith to the home office at Rochester, and it was there received on the 30th May; and was

accepted by one of the executive committee by endorsement thereon. The next day the association mailed to their agent in Montreal three certificates for said applicant, which were received by H., the agent at that place about noon of June 2. In the meantime the applicant had became seriously ill, and expired June 2, between five and six o'clock, p. m. H., the agent, was informed of the fact of sickness by one B. on May 30. On the 2d of June, at about 2 o'clock p. m., H., at the request of B., and upon his promise to pay the $18 admission fee required by the by-laws, delivered the certificates to him, and he enclosed the certificates in an envelope and mailed them to the applicant at La Colle, but they did not arrive at that place until after his death. Upon the same day B. sent the the agent, and informed him of the applicant's death, and the agent remitted it to the home office. Upon learning these facts the association tendered back the money.

$18 to

was well known to the applicant, as it appeared in the by-laws as the basis of the contract, and by which, in his application, he expressly agreed to be bound.

Secondly: That the deposit of the certificates in the post office, under the circumstances stated, was not such a waiver of this condition as bound the association without the payment of the admission fee by the insured while he was alive.

Thirdly That the delivery of the certificates to B. upon his promise to be responsible for the payment of the admission fee did not amount to a waiver of the condition upon the performance of which the agent was authorized to deliver them, viz., payment of the fee during the lifetime of the applicant.

Fourthly That the acceptance of the admission fee by the agent after the death of the applicant was unauthorized, and no waiver of the condition.

Fifthly That the agent had no authority to deliver the certificates to an applicant whom he knew to be sick, even upon receipt of the admission fee. The contract, and the only basis upon which the association could contract, was for the admission of a member in good health. To hold that an agent could waive such a condition and bind the association, would place the latter at the mercy of unscrupulous agents, and defeat the purposes of the association.

Order of Special Term affirmed. Opinion by Childs, J.; Bradley and Haight, JJ., concur.

EASEMENT.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Sheldon, applt.

Decided Jan., 1885.

The construction and maintenance of con

necting ditches through and across the lands of adjoining owners, for the purpose of draining and discharging the surface water into a creek below, and the use and enjoyment thereof for the period of more than twenty years creates no right or easement by prescription to have the ditches kept open for the discharge of the water over the land of the lower proprietor. The draining of the upper lands through the ditch being by the license or permission of the owner, the use or enjoyment is not adverse, and consequently cannot ripen into a right by prescription.

Appeal from judgment upon verdict and from order denying motion for new trial made upon a case and exceptions.

Action for damages caused by obstructing an artificial ditch upon defendant's land, whereby the water was set back upon plaintiff's land, and also for entering upon plaintiff's land and opening the banks of his ditch.

The parties owned adjoining farms. Forty years ago the then owner of defendant's farm dug a ditch across the farm, extending from the line between his and plaintiff's land in a northeasterly direction towards a creek, for the purpose of draining off the surface water, the land being swampy. The owners of the lands between defendant's premises and the creek extended this ditch to the creek, and shortly thereafter the

structed to expedite the flow of water across these lands. They were not constructed at the same time, but the action of each proprietor was taken because of the action of the others. At first they did not carry off the surface water from the adjoining lands of the farms, except such as might percolate through the banks of the ditch. By cultivation and other causes the ditches filled up, and were from time to time re-opened. Just previous to the commission by defendant of the acts complained of plaintiff deepened and widened the ditch on his farm the whole length thereof about three feet deep and four in width, whereby the flow of water was expedited, discharging it in larger quantities upon defendant's land than it otherwise would. Defendant purchased his farm in 1872, and it was occupied by his tenant until 1876, when he took possession. In cultivating his his land he ploughed through and over the ditch, leveling its banks so that the surface water on either side thereof could not flow unobstructed into the ditch. After plaintiff deepened his ditch defendant made a small sod dam near the line of plaintiff's land, thereby causing the water to set back, etc. The jury were in effect instructed, that if the water had continued to flow across defendant's land through the ditch for twenty years he was liable if he

caused the ditch by any means to be filled or the bottom of it to be raised so as to set back the water upon plaintiff's land, even if the interference with the ditch was the result of cultivating defendant's farm; that plaintiff had the right to have it continued as it had continued during the twenty years, and it was defendant's duty to maintain this ditch upon his premises in such condition that the water might flow as it had during that time. Exception taken.

W. A. Sullivan, for applt. W. J. Abbott, for respt. Held, Error. These ditches were constructed and maintained by the owners of these lands for their mutual convenience. They were allowed to be filled up and remain in that condition for a time, were again cleaned out at the pleasure of the several proprietors, not being kept in the same condition for any great length of time. There is nothing in the case showing that the occupants of plaintiff's farm, until this contention arose, made any claim of right to use defend

mere privilege enjoyed by leave of the proprietors of the servient tenement it is not adverse. 39 Me., 437; Angell on Watercourses, § 210.

The law is clearly settled, that no length of time creates any easement by which the owner of the lower land is prevented from using his own land at will, although the natural flow may be stopped thereby and set back upon the upper estate. 12 Allen, 516; 26 Penn., 407; Angell on Watercourses, § 108, a.

No person has the right to relieve his own land from standing water, or prevent its accumulation thereon, by discharging it through the ditches or drains upon the lands of his neighbor. 4 Lans. 51; 15 Barb., 96; 86 N. Y., 140.

Judgment reversed and new trial granted.

Opinion by Lewis, J.; Barker, Haight and Bradley, JJ., concur.

NEGLIGENCE.

water accumulating on their farm. It was a mere user by implied license. The draining of plaintiff's land through defendant's ditch being by the license or permission of the owner thereof, the use or enjoyment was not adverse, and therefore could not ripen into a right by prescription. 84 N. Y., 44; 11 Gray, 148; 16 W. Dig., 353.

If the user is of such a character and the circumstances attending it are such as to show that it was a

TERM. THIRD DEPT.

Hugh Reilly, respt., v. The Hudson River Bridge Co., applt.

Decided Nov., 1884.

Plaintiff was sailing in a yacht when he sig

nalled defendants that he wished to pass their draw. He was familiar with the signals given when the draw was about to open. He heard these signals (although they were not addressed to him) when very near the bridge, but far to the east of the draw. Proceeding on a westerly tack nearly parallel to the bridge, and in a position where he could not see how far the draw had opened, he found on reaching it