the time specified, for the constructing and setting up on plaintiffs' premises of a circular sawing machine or mill.

The defendant had entered into an agreement with the plaintiffs, in which he had agreed, within the space of thirty days next after the date thereof, to construct and set up, upon the plaintiffs' premises, a circular sawing machine, complete in every respect, according to the specifications embraced in the contract, with the capacity of sawing 10,000 feet of lumber from ordinary logs in ten consecutive hours for the price of $920, payable in six months from the completing and proving of the mill. The plaintiffs agreed to furnish the labor of one wood-working mechanic, whose labor was to be performed under the direction of the defendant or his agent, and also to furnish the necessary timber for foundations and other wood work, together with the nails and screws for the same. The contract was in writing, signed in duplicate, dated April 20, 1881.

The referee found as facts that the mill arrived at Glendale, the nearest railroad station to the plaintiffs' premises, about May 30, 1881, and was within three or four days thereafter drawn to the plaintiffs' premises by their team; that when the mill had arrived, the plaintiffs had constructed the foundation for the mill, excepting they had not provided the timbers for the superstructure on which the mill was to rest, and so stated to Singer, the defendant's agent, requesting him to go with their team and servant to a lumberman some five miles distant and procure the timbers; that Singer consented and went for the timbers, but that it was some twelve days before he could procure to be delivered the lumber required for that purpose, and that during the erection of the mill the wood-working mechanic of the plaintiffs was called from the work of assisting Singer for a few days; that the plaintiffs' neglect to transport the mill from the station to their manufactory, where it was to be set up, necessarily delayed the defendant four days, and the failure to furnish timber for the mill to rest on, and their wood-working mechanic being called away from the work, necessarily delayed the defendant twenty-six days more in the construction of the mill, making in all thirty days. He further found that the mill was never completed so as to perform the requirements of the contract, and that on the 26th day of August, 1881, the plaintiffs gave notice to the defendant that they rejected the mill. He further found as a fact that the rental value of the mill during the period was $25 per day, and as a conclusion of law that the plaintiffs were entitled to recover damages for the non-completion of the mill within the time specified in the contract for fifty-four days, amounting to the sum of $1,350, with interest thereon, from the date that the mill was rejected. An exception was taken to this conclusion of the referee. The defendant requested the referee to find as a fact that the plaintiffs did not perform the contract on their part as to time, and that the parties waived such performance by their acts, which request was refused and an exception taken by the defendant.

Assuming as is claimed by the plaintiffs that time was the

essence of the contract, it distinctly appears that the mill could not be placed in position until the foundation timbers had been furnished, and the structure upon which the mill was to rest completed. The performance of this part of the contract on the part of the plaintiffs was required before the defendant could proceed and complete the contract on his part. It is a well settled rule that where one party demands strict performance as to time by another party, he must perform on his part all the conditions. which are requisite in order to enable the other party to perform his part, and a failure on the part of the party demanding performance to do the preliminary work required, in order to enable the other party to complete his within the time limited, operates as a waiver of the time provision in the contract. Stewart v. Keteltas, 36, N. Y., 388; Grube v. Schultheiss, 57 id., 669; Gallagher v. Nichols, 60 id., 438; Weeks v. Little, 89 id., 566; Cooke v. Odd Fellows Fraternal Union, 49 Hun, 23; 17 N. Y. State Rep., 490; Williams v. Shields, 30 N. Y. State Rep., 556; Mulholland v. Mayor, etc., 22 id., 347; S. C., reported in mem., 113 N. Y., 631; Beinhauer v. Gleason, 15 N. Y. State Rep., 227-234; Doyle v. Halpin, 33 N. Y. Supr. Ct. Rep., 352–365; The Board of Water Commissioners v. Burr, 35 id., 522.

It consequently appears to us that the failure of the plaintiffs to perform on their part operated as a waiver of the performance of the contract as to time, and the defendant consequently had the right to perform his part of the contract within a reasonable time after the plaintiffs had completed their part. The allowing of the defendant thirty days additional time in which to complete the contract, as was done in this case by the referee, does not restore the provisions of the contract which had been waived. It was, in fact, the making of a new contract for the parties by the referee. The defendant having contracted to do this work within a specified time, was bound to have his servants and employees on hand ready to perform within that time. He had the right to assume that the plaintiffs would perform on their part, and therefore could properly contract with other parties for the time of himself and employees for any future time not covered by his contract with the plaintiffs. They could not prevent his performance by delays on their part for even a greater period than that specified in the contract in which he was to perform, and then require him to proceed immediately; for this would require him to do the work at another time than that named in the contract, and when he might be under obligations to other parties.

That the conclusion of the referee is unsound and operates unjustly to the defendant is apparent from a brief consideration of the facts as found. Under the contract the defendant was to put the mill up within thirty days from the date of the contract, which was April 20th. The referee allowed him thirty days additional time, which would take it to June 20th, and yet the plaintiffs did not have the foundation or structure on which the mill was to be placed ready until thirty days after the 30th of May, or until July 1st. And yet the referee has charged the defendant at the rate of twenty-five dollars per day from the 20th

of June for not having the mill set up and ready for use on that day.

Again, the conclusion of the referee that the plaintiffs were entitled to recover for fifty-four days is not sustained by the facts as found. As we have seen, an exception was taken to this conclusion. The thirty days delay on the part of the plaintiffs occurred after the mill arrived on the 30th day of May. This would take it to the 1st of July.

The plaintiffs in their letter to the defendant of April 11th, in stating their understanding of the contract, say that they understood that the defendant could finish the mill in three weeks and could set it up in ten days thereafter. It thus appears that the defendant required ten days in which to place the mill in position ready for work. If the foundation was not ready until the 1st of July, he had ten days thereafter in which to set it up, and by making allowance for an intervening Sunday and one holiday would bring it to July 12th, the day on which it was in fact reported ready for use, and the day on which the first trial of the mill took place. From this date to the 26th of August, the date on which the notice was given, deducting the intervening Sundays, would be thirty eight days, which would be the only time for which a recovery could be had upon the referee's theory of the

case.

There is some evidence tending to show that the mill was used by the plaintiffs after they gave notice that they would not accept it. There is, however, no finding of fact as to the amount and extent of such use. We consequently do not consider the ques

tion before us for determination as to whether such use amounted to an acceptance of the mill by the plaintiffs and a waiver of the defects if any existed.

The judgment should be reversed and a new trial granted, with costs to abide the event

BROWN, J., dissented upon the ground that under the findings of fact made by the referee the proposition discussed by Judge Haight is not available to the appellant in this court. The point is not made in the appellant's brief and was not argued orally and does not appear ever to have been raised in the case.

All concur, except BROWN, J., dissenting, BRADLEY, J., not voting, and FOLLETT, Ch. J., not sitting.

PHILANDER W. FOBES, Resp't, v. THE ROME, WATERTOWN & OGDENSBURG R. R. Co., App'lt.'

(Court of Appeals, Filed June 10, 1890.)

1. RAILROAD-RIGHT OF TO LAY TRACKS THROUGH STREETS-LIABILITYF OR DAMAGES TO ADJOINING OWNER.

The case of Story v. The N. Y. Elevated R. R. Co., 90 N. Y., 122. did not overrule or change the principle of law that a duly incorporated steam curface railroad company, having authority from the state to build its road, and laying its tracks and operating its road through and upon the surface of the streets of a city under the protection of a license from such 1 Reversing 50 Hun, 603, mem.

city, takes thereby no portion of the property of an individual who owns land adjoining the street, but bounded by its exterior line, and the company is not liable to such an owner for any consequential damages to his adjoining property arising from a reasonable use of the street for railroad purposes, not exclusive in its nature and substantially upon the same grade as the street itself, which leaves the passage across and through the street free and unobstructed for the public use.

2. SAME.

Nor did the Story case so alter the law as to permit a recovery in cases where the easement of the adjoining lot owner, through the building and operation of a steam surface or horse power road, is injuriously affected by deprivation or diminution of light, air or access, even though he did not own the fee to the center of the street.

APPEAL from judgment of supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

William B. Hornblower, for app'lt; C. P. Ruger, for resp't.

PECKHAM, J.-We think that the defendant has by its exceptions duly raised the question argued before us. We are also of the opinion that the plaintiff's lot is bounded by the exterior line of the street in question, and that he has no title to the land to the center of the street subject to the public easement. The courts below held that the occupation and appropriation by defendant of a part of the plaintiff's easement in Franklin street is and always has been unlawful. To that conclusion the defendant excepted.

It admits that plaintiff had an easement in that street, but it denies that it has occupied or appropriated it.

Whether it has taken any portion of the plaintiff's easement in the street in question is what the defendant asks shall be decided by us, and it denies in toto any taking whatever of the plaintiff's property or any portion thereof.

For many years prior to the decision of the case of Story v. The New York Elevated R. R. Co., 90 N. Y., 122, I think the law was that a duly incorporated railroad company, having authority from the state to build its road and laying its tracks and operating its road through and upon the surface of the streets of a city under the protection of a license from such city, took thereby no portion of the property of an individual who owned land adjoining the street, but bounded by its exterior line. The company was, therefore, not liable to such an owner for any consequential damages to his adjoining property arising from a reasonable use of the street for railroad purposes, not exclusive in its nature and substantially upon the same grade as the street itself, and leaving the passage across and through the street free and unobstructed for the public use.

The first case in this state upon that subject, and decided more than forty years ago, is that of Drake v. The Hudson River Railroad Co., 7 Barb., 508. This was a case decided by the general term of the supreme court sitting in the city of New York, and composed of three most able and learned judges, and I do not find that the principle involved in that decision has been reversed or overruled by any judgment of this court. That case holds the doctrine which I have above stated. It was elaborately argued on both sides by counsel as eminent at the bar as the state

afforded, and the opinions of the learned judges are conclusive proof of the ability with which the case was considered by them.

In Williams v. New York Central R. R. Co., 16 N. Y., 97, it was held that the dedication of land to the use of the public for a highway is not a dedication of it to the use of a railroad, and such a road cannot be built upon it without compensation to the owner of the fee. It was in that case held to be another and an additional burden upon the land if used for railroad purposes, not covered by the dedication for ordinary street purposes, and hence the owner of the fee was entitled to a compensation for an additional burden to which he had never dedicated his property. It was not a mere additional use of an easement, but it was an actual taking of the land for railroad purposes, though not absolutely exclusive, and hence the owner was protected by the constitution from such a taking without a compensation. The Drake case was alluded to, but only for the purpose of pointing out the clear distinction between the two cases, and the court said the Drake case involved simply the right of an adjoining owner on the street, who did not own the fee, to recover for incidental damages unavoidably resulting from the construction of the railroad in the street under authority of the law and with the permission of the city authorities, where no land or easement of the adjoining owner was taken. It was also stated that the Drake case might be considered as settling the question that a railroad in a populous town is not a nuisance per se (of course when legally authorized), and that when the company has acquired the title to the land upon which its road is located, such company is not liable, unless guilty of some misconduct, for consequential damages resulting from the operation and use of its road. It has been regarded as having such title so far as the adjoining owner is concerned, who has no fee in the street, when by authority of law and the consent of the city owning the street its rails are therein laid upon the surface and the use of the street for ordinary street purposes is not thereby prevented.

In Wager v. Troy Union Railroad Co., 25 N. Y., 526, it is assumed that there is no difference in kind or species between a railroad in a city street operated by horse power, and one operated by steam. Smith, J., in writing the opinion in that case, says that such difference would present simply a question of degree in respect to the enlargement of the casement, and would not affect the principle. He also said that if the title to the Troy street were in that city as the fee in the streets in New York is in the city itself, the mayor and common council of Troy might perhaps have authorized such appropriation of the street without compensation to the adjoining owners. The case of Wager was followed in this court by that of The People v. Kerr, 27 N. Y., 188. It was there held that the legislative permission to lay down street railroad tracks without change of grade in those streets of the city of New York where the city owned the fee was a sufficient justification for such action by the company and that no compensation was necessary to be paid to the owner of the adjoining property. It