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and 136 New York State Reporter HOOKER, J. The appellant is the owner of several acres of land in the town of Tuxedo, Orange county, and of a water right in the adjoining town of Monroe; and the respondents are the assessors of the town of Monroe. This proceeding was brought to set aside an assessment made by the respondents, in the town of Monroe, upon the water right owned by the appellant. Mt. Bashan Pond is a body of water, in extent about a mile square, located in the town of Monroe. The outlet of the lake runs southerly, and at its head there is a dam, with gates, by which the amount of water released from the lake may be augmented or diminished. Some three or four miles southerly from the outlet, and beside the stream, the appellant owns about seven acres of land, well within the town of Tuxedo. The lands of several different owners intervene between the appellant's premises and the town line. Erected upon the appellant's lands are buildings used for a manufactory of wooden articles, and water from Mt. Bashan Pond supplies the power therefor. The plaintiff's title to his seven acres in the town of Tuxedo gives him the right and privilege of using or drawing off the water from Mt. Bashan Pond, for the purpose of carrying on his work, in certain defined quantities and at certain times. He has no ownership in or to any of the lands under the waters of Mt. Bashan Pond, or any of the lands adjoining it. His sole interest is the right to draw water from that pond through the natural outlet, in defined quantities, and at certain times.

The learned court below, in quashing the writ, treated the appellant's right to use this water as corporeal property, and spoke of it as physicålly lying in the town of Monroe and distant from the mill property in the town of Tuxedo. This erroneous premise has naturally led to a false conclusion. The right did not have physical being. It is incorporeal in its nature. The Court of Appeals has discussed the nature of the appellant's right to use the water of Mt. Bashan Pond. In Hall v. Sterling Iron & R. Co., 148 N. Y. 432, 42 N. E. 1056, one of the questions presented for consideration pertained to the plaintiff's ownership of that right. The paper title to one-half of his mill property had come to him with an omission in one of the mesne convevances of any words of grant specifically addressed to the water right. It contained this language:

"Together with all and singular the devices, buildings, rights, members, privileges, advantages, hereditaments, and appurtenances to the same belonging or in any wise appertaining."

The court decided that, although the water right was not specifically mentioned or otherwise referred to, it was an appurtenance to the land and passed with it. The opinion states:

"The water flows through the natural outlet of Mt. Bashan Pond. This water course passes through the plaintiff's premises. It is used in connection with the land, and cannot well be severed therefrom. It consequently is attached as an incident to it.”

And the court held that Hall's title to the whole premises was good.

That the right, if valuable, may be taxed is not denied (People ex rel. Niagara Falls P. Co. v. Smith, 70 App. Div. 543, 75 N. Y. Supp. 1100); but it should be taxed as a part of the real estate to which it appertains and to which it is incident. In this case the water right has connection with the appellant's land in the town of Tuxedo, and, as has been held by the Court of Appeals, even passes with the land by virtue of a conveyance that does not mention the water rights. To allow the right to be taxed in the town other than where the land itself is situated might result in an anomalous situation. If the taxes on the mill property were not paid, and the property sold under a tax sale, it would seem that under the Court of Appeals decision the right to use the water of Mt. Bashan Pond would pass as an incident to the land, and the purchaser would own that right in connection with the mill property. Suppose, however, that the right itself were allowed to be taxed in the town of Monroe, and, the taxes remaining unpaid, a tax sale should follow. It could easily be imagined that, if the tax were valid, the purchaser at the sale would hold a valid title to the water right, and he would find himself, as to his ownership, at once at war with the purchaser under the tax sale conducted in the town of Tuxedo. It cannot be doubted that water rights incorporeal in their nature may, under certain circumstances, exist independent of lands; but that is not this case.

The conclusion is that the order and judgment appealed from should be reversed, and the assessment annulled, with costs. All concur.

(116 App. Div. 793)

ACARDO V. NEW YORK CONTRACTING & TRUCKING CO. et al. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) PLEADING-STRIKING OUT MATTER.

In an action for injuries, an order striking out from the complaint allegations involved in a common-law action, unless plaintiff serve an amended complaint separately stating his common-law action, and action under the employers' liability act, was not authorized by Code Civ. Proc. $ 545, authorizing the striking out of irrelevant and redundant matter.

Appeal from Special Term.

Action by Sebastian Acardo, as administrator of the estate of Guiseppe Acardo, deceased, against the New York Contracting & Trucking Company and another. From an order ordering an amended complaint on penalty of having certain allegations stricken from the complaint, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Thomas J. O'Neill, for appellant.
J. C. Toole, for respondents.

WOODWARD, J. The plaintiff set forth an action based upon the defendant's negligence, alleging various grounds of negligence, including common-law grounds, and those arising under the employers' liability act, and set forth, as it is claimed, that one John Gahler was in the defendant's employ operating a dirt train, for the purpose of gaining an admission of this fact in the pleadings, thus saving the trouble of proving a fact which was involved in the case. The defendand 136 New York State Reporter ant moved for an order striking out as "redundant and irrelevant” this allegation in reference to Gahler, and the other allegations involved in a common-law action, and the order appealed from strikes out these allegations unless the plaintiff shall serve an amended complaint, separately stating his common-law action, and his action under the employers' liability act. The plaintiff appeals.

The plaintiff clearly has but one cause of action, and that is for the damages he has sustained through the actionable negligence of the defendant, if such negligence exists. Whether the facts bring his case within the employers' liability act, or whether he must rely upon his common-law rights, must depend upon the evidence which he is able to produce upon the trial, and we can see no good reason for a refinement of the pleadings such as is directed by the order appealed from. If the plaintiff establishes his cause of action under the employers' liability act, the common-law allegations are mere surplusage, just as a portion of them would be if various common-law grounds were asserted, and only one of them proved.

The authority of section 545 of the Code of Civil Procedure to strike out "irrelevant, redundant, or scandalous matter" has not been understood to cover a case of this character, so far as we have been able to discover. On the contrary, it was said, in considering this provision of the Code in Carpenter & Wilcox v. West & Van Venthuysen, 5 How. Prac. 53, 55, that:

"By "irrelevant or redundant in the Code, I take it is meant, what is usually understood as impertinent; for a pleading in equity is impertinent, when it is stuffed with long recitals, or long digressions, which are altogether unnecessary and totally immaterial to the matter in hand.”

And clearly this is not such a case. Here the plaintiff only claims to have a single cause of action. It is based upon the negligence of the defendant, and he has specified several different propositions as to which the defendant is alleged to have been negligent, some of these constituting actionable negligence at common law, and some of them under the statute, and the defendant is equally liable in either event, but is only liable for the single damages sustained by the plaintiff. Why should he be compelled to amend his pleadings, and to set up two causes of action where he only has one, at the expense and delay of this motion ? No practical reason, no reason commended by the law, appears to us.

It is true in Mulligan v. Erie Railroad Company, 99 App. Div. 49), 91 N. Y. Supp. 60, this court refused to compel a plaintiff to stand upon his common-law rights, and permitted him to amend his complaint by setting up his common-law action, and his action under the employers' liability act in separate counts, but that was not the real question under consideration here; the point involved being that the plaintiff had elected to stand upon his common-law rights, and the court held that he was entitled to either remedy, and strongly intimated that his second count, under the employers' liability act, was all that was necessary. The case decided no question involved here, nor do we find that the question has been adjudicated. We conclude that the matter directed to be struck out properly belongs in the com

plaint, and that the plaintiff, having but a single cause of action, may not be compelled to plead two causes, but that the allegations of negligence which are not admitted or proved, may be considered as surplusage, and that the plaintiff has a right to submit his case upon the pleadings as they originally stood.

The order appealed from should be reversed, with costs, and the motion denied, with costs. All concur.

(117 App. DI:. 34)

EMPIRE TRUST CO. V. MAGEE. (Supreme Court, Appellate Division, First Department. January 11, 1907.) 1. JUDGMENT-BAR-PARTIES BARRED.

An action by a bank on a promissory note indorsed and delivered to it by defendant for value, was not barred by a recovery, in a pending action between the bank's president and defendant, for the amount of the consideration of the note, to which action the bank was not a party, even though it was the agent of its president and advanced the money

paid as a consideration for the note at his request. 2. BILLS AND NOTES--ACTION-DEFENSES.

A bank holding a promissory note was not precluded from recovery thereon by failure of consideration, resulting from the noncompletion of certain building plans and agreements, to which defendant and the president of the bank were parties, though the advancement of money by the bank on the note was made at the request and for the account of its president, where the note was made by defendant for value and de

livered for value to the bank. 3. PLEADING-ANSWER-SEPARATE DEFENSES--SUFFICIENCY.

An answer setting up two separate defenses to the allegations of the complaint, was demurrable, where neither defense standing alone was suflicient on its face without reference to other parts of the answer.

Ilti. Yote.--For cases in point, see Cent. Dig. vol. 39, Pleading, $ 193.} Appeal from Special Term.

Action by the Empire Trust Company against Franklin R. Magee. From a judgment overruling plaintiff's demurrer to defendant's answer, plaintiff appeals. Reversed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Robert L. Wensley, for appellant.
George D. Beattys, for respondent.

INGRAHAM, J. The action was upon a promissory note. The second clause of the complaint alleges that:

“On or about the 18th day of September, 1905, defendant made his certain promissory note in writing, dated on that day, whereby, for value received, he promised to pay to the order of himself, one month after said date, the sum of $700 at Empire Trust Company, New York City, with interest at 6 per cent. per annum; and said defendant on or about said date, duly indorsed the said note and for value delivered the same to the plaintiff, who is now the owner and holder thereof,”

The answer denies that: "The allegations contained in paragraph 'second' of said complaint. which allege that defendant made his certain promissory note for value received and denies that for value he delivered the same to plaintiff.".

and 136 New York State Reporter The other allegations of the complaint being admitted, it follows that the defendant does not deny that he made the promissory note and delivered the same to the plaintiff; the denial only being that he made the note for value and for value delivered the same to the plaintiff.

The first defense alleged is that at the commencement of this action there was pending an action in the Supreme Court between parties, who, though nominally different, are in reality the same as in this action, and for the same cause as that set forth in the complaint herein, namely, to recover the sum of $700, alleged to have been advanced to defendant by Le Roy W. Baldwin, which sum is the alleged consideration for the note set forth in the complaint herein; that in reference to said alleged claim of $700 for which said note was given, the plaintiff herein represents and is the agent of said Le Roy W. Baldwin; that plaintiff herein had notice and knowledge of all the facts in reference thereto, and if it advanced any money on said note, it did so at the request and for the account of said Le Roy W. Baldwin, its president. The second defense alleged that the Brunswick Construction Company and Le Roy W. Baldwin, president of the plaintiff herein, and certain other interested parties, entered into an operation, the avowed purpose of which was to build a hotel and to pay for the same by the issue of certain bonds; that said persons agreed to underwrite a certain portion of said bonds, and in furtherance of their purpose, obtained a loan of certain moneys, out of which was paid to said persons certain sums of money as a bonus or compensation for underwriting said bonds; that through the negotiation of some outside party as broker, said Le Roy W. Baldwin, president of the plaintiff herein, and said defendant, entered into an agreement dated September 3, 1903, by the terms of which said defendant agreed to save, indemnify, and hold the said Le Roy W. Baldwin, president of plaintiff herein, harmless, under and by virtue of and as a party to said underwritten agreement, to the extent of $20,000 of the bonds of the said Brunswick Construction Company; that the said plans and purposes of the said persons failed and said hotel was not constructed, and that the terms and conditions of the alleged agreements entered into in connection with the said undertaking have not been carried out or complied with, and that the said Baldwin, president of the plaintiff herein, was not really and actually compelled to pay out and advance on his own account any cash or moneys and has not really suffered any damage, nor has plaintiff on his own behalf; that no bonds have been issued in accordance with the purposes above set forth and that the whole negotiations and everything connected therewith are entirely within the control of said Le Roy W. Baldwin, president of the plaintiff herein, and his intimate associates, in such a way that said plaintiff has suffered no damage whatever ; that by reason of the facts set forth the consideration of said note utterly failed, of all of which facts the plaintiff herein and said Le Roy W. Baldwin were cognizant; that the plaintiff herein had knowledge and notice of all said facts, and if it advanced any money on said note, it did so simply at the request and for the account of Le Roy W. Baldwin, its president. To these two separate defenses plaintiff interposed demurrers, which were sustained.

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