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action and the complaint in this leaves no doubt in my mind that the defense was completely established. The basis of the action in each case was negligence arising out of precisely the same occurrence, at the same time, and in the same place; and the theory upon which the administratrix sought to enforce her claim for damages in this state, arising out of a negligent or wrongful act committed in another state, was that upon which the Court of Appeals affirmed the judgment in Wooden v. Western New York & Pennsylvania R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803. It seems that there is a statute in Connecticut which provides that no suit on account of the death of any person caused by negligence shall be maintained against a steam railroad company unless written notice of a claim therefor shall have been given to the defendant within four months after the neglect of which complaint is made. The appellant contends that, inasmuch as no such notice was alleged to have been given in the Dutchess county action, that complaint was radically defective and demurrable. Even if this view be correct, however, it does not necessarily affect the validity of the defense based on the pendency of the Dutchess county action. The defendant there did not interpose any objection that the statutory notice required by the laws of the state of Connecticut was wanting, but put in an answer setting up a defense on the merits. If the complaint was demurrable, the right to demur had been waived.

It is argued that the court erred on the trial of the present action in receiving in evidence a copy of the complaint in the Dutchess county action, instead of requiring the production of the original. The copy was sufficiently proved by the testimony of the attorney for the defendant, who swore that it was the paper which had been served upon the corporation; and it has been held that the pendency of a former suit may be established by reading in evidence a copy of the declaration served upon the defendant's attorney. Brown v. Littlefield, 7 Wend. 454. I think this judgment should be affirmed.

Judgment affirmed, with costs. All concur.

In re CULLINAN, State Com'r of Excise.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. INTOXICATING LIQUORS-TAX CERTIFICATE-REVOCATION.

It is no defense to an application for the revocation of a liquor tax certificate because of a violation of Liquor Tax Law, § 23 (Heydecker's Gen. Laws, p. 2378, c. 29), providing that no person as owner or agent shall "suffer or permit" gambling in the place in which the traffic is carried on, that the violation was permitted by an agent in the absence and without the knowledge and consent of the certificate holder.

Appeal from Special Term, Queens County.

In the matter of the petition of Patrick W. Cullinan, as state commissioner of excise, for an order revoking and canceling liquor tax certificate No. 21,917, issued to John Niederstein. From an order denying the application, the petitioner appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

William E. Schenck, for appellant.

Jacob Neu, for respondent.

HOOKER, J. This is an appeal from an order denying an application to cancel a liquor tax certificate, issued to the respondent. An issue was raised by the answer of the certificate holder, and proof was taken before a referee appointed for that purpose. Section 23 of the liquor tax law (Heydecker's Gen. Laws, p. 2378, c. 29) in the enumeration of those who shall not traffic in liquors, provides in part as follows: "No corporation, association, copartnership or person, who, as owner or agent, shall suffer or permit any gambling to be done in the place designated by the liquor tax certificate as that in which the traffic in liquors is to be carried on ;" and section 28 (page 2382) authorizes the revocation of the certificate of a person violating that provision. The petitioner contends that the certificate holder committed such a violation, in that gambling by a device known as a "slot machine" occurred in his place on July 24 and 29, 1902. That the machine was a gambling device is not questioned. The certificate holder contended that this was done without his knowledge or consent, and in his absence, and that, therefore, he did not, in the language of the statute, "suffer or permit" the gambling. It must be taken as a fact, in the state of the evidence, that Niederstein was absent from the premises from about the middle of July until the 6th day of August, and that his place of business, in which liquor was sold under the certificate, was in charge of an agent; and this presents the question whether or not his certificate was liable to be revoked under that portion of section 23 of the liquor tax law relating to gambling. The learned Special Term in its opinion has said: "There was a violation of the law, in that gambling by means of a nickel-slot machine was committed and suffered on the days and at the place in question; but it was the act of the agent then in said barroom, not of the certificate holder, this respondent. The evidence does not establish any participation by him in the violation, or that he suffered or permitted the gambling or use of the machine;" and in that theory of the law he denied the application. This disposition of the case we think erroneous. If this doctrine were to be adopted into the body of the law, it would be only necessary for the holder of a liquor tax certificate to absent himself for a few hours a day from his place of business to avoid the penalty following a violation of this provision of the liquor tax law during his absence; or, in the event of one person holding two liquor tax certificates, his continued absence from one would be a sufficient defense to any revocation proceeding that might be instituted against him for the violation of section 23 of the liquor tax law by his agent at such place of business. We cannot believe that the Legislature intended that the words "suffer or permit" should receive the interpretation given to them by the learned Special Term. It has been held that, where a liquor tax certificate has been issued or transferred to a person upon his application and filing of a bond, he is the principal, whom

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the law will look to during the conduct of the business, and will hold responsible for compliance with the statutory provisions. Lyman v. Kurtz, 166 N. Y. 274, 59 N. E. 903.

The contention of the respondent that the law does not permit the conviction of a person for the unauthorized unlawful acts of an agent is not germane to this proceeding, for the reason that the application is one to revoke the certificate. Nothing more than the revocation is accomplished. It does not convict the holder of crime. Matter of Lyman, Texter Certificate, 59 App. Div. 217, 69 N. Y. Supp. 309. Our opinion is that the failure of the respondent to prevent the conduct complained of clearly makes out a case within the letter, as well as the spirit, of the statute, and that the acts of his agent have rendered his certificate forfeited.

The order appealed from should be reversed, with $10 costs and disbursements, and the proceedings remitted to the Special Term for a rehearing. All concur.

METZGER et al. v. MARTIN et al.

(Supreme Court, Appellate Division, Secon Department. November 13, 1903.) 1. JUDICIAL SALE-PURCHASER-EASEMENT ADVERSE POSSESSION.

Where real estate sold at partition sale has a right of way over the lands of a third person, which has been used with the knowledge of the third person, and without any objection by him, for more than 50 years, and the way is one of necessity, manifest to the third person, the purchaser is compelled to take the title, the proof establishing the easement by adverse possession being clear and strong.

Appeal from Special Term, Westchester County.

Action by Adella C. Metzger and another against Albert S. Martin and others. From an order denying the motion of John H. Shults to be relieved from the purchase of the premises sold in the action, he appeals. Affirmed.

Argued before BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Henry T. Dykman, for appellant.
Maurice Dillon, for respondents.

WILLARD BARTLETT, J. The property purchased by the appellant at the partition sale is entirely shut off from the highway, which can only be reached therefrom by passing over lands belonging to a person who was not a party to the action. Under the terms of sale the purchaser is entitled to a right of way over such inclosing lands. There is no record title to this easement in the owner of the inclosed lot, and the only question presented in the court below and upon this appeal is whether the proof has established a good title by prescription, which the purchaser ought to be compelled to take.

The case is analogous to those in which it has been held that the purchaser at a judicial sale or under a contract may be compelled to take a title founded upon adverse possession. Seymour v. De Lancey, Hopk. Ch. 436, 14 Am. Dec. 552; Shriver v. Shriver, 86 N. Y.

575; Baker v. Oakwood, 123 N. Y. 16, 28, 25 N. E. 312, 10 L. R. A. 387; Ottinger v. Strasburger, 33 Hun, 466, affirmed 102 N. Y. 692. These authorities, however; all agree in holding that the proof requisite to establish the title by adverse possession in such cases must be clear and strong, and it was suggested in the Shriver Case that the cogency of the evidence should be such as would call upon the trial court in an action at law to instruct the jury to find that adverse possession had been made out as matter of fact. The same rule must apply where the purchaser is entitled to an easement, and the only easement which the vendor is able to convey is one founded by prescription. In this view we have carefully examined the affidavits which were presented to the Special Term in support of the contention of the respondents that the right of way in question here has been used with the knowledge of the owners of the servient estate and without any objection by them for more than half a century. There is no evidence whatever in opposition to the statements contained in these affidavits; and we have the further fact that the right of way is one of necessity, and that this must always have been manifest to the owners of the inclosing lands from the time when the inclosed lot was separated from them, in 1838. Without reviewing the evidence in detail, it is enough to say that we have reached the conclusion that there is no reasonable doubt in regard to the title so far as this easement is concerned.

We have therefore concluded to affirm the order.

Order affirmed, with $10 costs and disbursements. All concur.

LYNCH v. METROPOLITAN ST. кY. CO.

(Supreme Court, Appellate Term. November 6, 1903.)

1. NEW TRIAL-POWER TO GRANT-DISCRETION OF TRIAL COURT-REVIEW ON APPEAL. V

The power to set aside a verdict on the ground that it is against the weight of the evidence, and to grant a new trial, rests in the sound discretion of the trial court, and its determination will not be reversed on appeal unless an abuse of discretion clearly appears.

Appeal from City Court of New York, Special Term.

Action by Michael Lynch against the Metropolitan Street Railway Company. From an order granting a new trial after setting aside. a verdict for defendant, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

F. Angelo Gaynor and Bayard H. Ames, for appellant.
Louis Steckler, for respondent.

BLANCHARD, J. This action was brought to recover damages for personal injuries received by the plaintiff through the alleged negligence of the defendant's servants. The defendant denied such negligence, and alleged that whatever injuries and damages were sustained by the plaintiff were sustained through his own negligence.

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The issues came on for trial before a court and jury, and the jury rendered a verdict for the defendant. This verdict the trial court set aside and granted a new trial, and from the order granting a new trial this appeal is taken.

The order granting the motion states that it was granted on the ground that the verdict was against the weight of evidence, and upon the exceptions taken upon the trial by the plaintiff, and because the verdict was contrary to law. We have read the record of the trial with great care, and we cannot say that the trial court erred in setting aside the verdict and granting a new trial. The power to do so rested in the sound discretion of the trial court, and an appellate court will not reverse its determination unless it clearly appears that the trial court has abused the discretionary power vested in it. Lurd v. Spencer, 42 App. Div. 543, 59 N. Y. Supp. 752; Barrett v. Third Ave. R. Co., 45 N. Y. 628. In the latter case the court said at page 632:

are not

"Motions to set aside verdicts as contrary to evidence governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case."

In Serwer v. Serwer, 71 App. Div. 415, 416, 75 N. Y. Supp. 842, the learned court says:

"When a verdict has been set aside by the trial court, in the exercise of its discretionary power, as against the weight of evidence, its determination ought not to be reversed by an appellate tribunal unless it is made to appear beyond all cavil that great injustice has been done to the defeated party, or unless there has been an abuse of discretion."

In the case of Silverman v. Dry Dock, E. B. & Bowery Railway Co., 69 App. Div. 22, 23, 74 N. Y. Supp. 481, the court, in refusing to reverse the action of the trial court in setting the verdict aside, says:

"While it may be that there was not that preponderance of evidence which would justify an appellate tribunal in setting aside the verdict in the first instance, nevertheless it will not disturb the discretion of the trial court In doing so unless an abuse of that discretion appears.”

We do not discuss the other points raised upon the appeal, nor do we think it necessary to do so. As we do not think the trial court abused or exceeded the discretion reposed in it, the order appealed from should be affirmed, with costs.

Order affirmed, with costs and disbursements. All concur.

BERNSTEIN v. LESTER.

(Supreme Court, Appellate Term. November 6, 1903.)

1. FRAUD-ADVANCE OF PURCHASE PRICE-SALE OF GOODS TO THIRD PERSON. One who obtains money on a promise made with fraudulent intent, to deliver certain goods in his stock, and then sells his entire stock to another, is liable for the fraud.

2. WITNESS-DENIAL OF FACTS-PROPRIETY OF FURTHER QUESTIONS.

Questions relating to matters the existence of which the witness denies, and proof of which is essential as a basis for further inquiry, are properly excluded.