Howard v. Robbins. THIS action was for damages caused by the defendants in tearing down and removing some six and a half feet of a building belonging to the plaintiffs, and which had encroached, to that extent, upon a street in the village of Watkins sixtysix feet in width. The trustees of the village had declared the encroachment to be a nuisance,* and the defendants had been appointed a committee to remove it, which they did by virtue of such authority and because the encroachment was in their judgment a nuisance. The jury were instructed to assess the plaintiffs' damages and find a verdict for the amount assessed. The defendants' exceptions were ordered heard at General Term, and this was a motion for a new trial upon such exceptions. J. J. Van Allen, for the defendants. R. H. Marriott, for the plaintiffs. Present-BALCOM, BOARDMAN and PARKER, JJ. By the Court-BOARDMAN, J. The positions taken by the defendants are: 1st, that such encroachment is per se a nuisance which any person may remove; 2d, that the action of the trustees of the village of Watkins, under their charter, declaring such encroachment a nuisance, was, under the cir * * * * * * or * The provision of the village charter, under which the trustees acted, is as follows, viz.: "§ 4. The said trustees shall have power to determine upon view, or upon testimony of witnesses (who may be examined on oath before them, such oath to be administered by any one of said trustees), whether any building, any other structure, substance, or thing whatever, within said village, is a nuisance, upon two days notice to the owner or occupant of the same, and to abate the same by causing it to be removed, and shall have full power to enter upon the premises upon which the same is situated, and cause the same to be removed; and may also impose a penalty by any ordinance of said village, in respect to any such nuisance, and enforce the same; but all such determinations shall require a concurring vote of two-thirds of all the trus tees of said village. Howard v. Robbins. cumstances, conclusive evidence of the fact, and justified its removal by defendants as the agents of said village. Neither of these positions is tenable. It is not pretended that this encroachment prevented the use of the street for its ordinary purposes. It was not, therefore, an obstruction constituting a nuisance. (Peckham v. Henderson, 27 Barb., 207, 211, 212; Griffith v. McCullum, 46 id., 561; Harrower v. Ritson, 37 id., 301.) Every encroachment upon a public highway is not a nuisance. The evidence in this case does not establish such an obstruction as to constitute a nuisance. Nor have the trustees, by virtue of their charter (Laws of 1861, chap. 125, title 4, sec. 4), authority to declare that a nuisance which is not so in fact or in law. If they possessed that power they might make a crime and designate the criminal where the laws recognized neither, for one who maintains a nuisance is liable to indictment. They must act at their peril and within the law. So long as they so act their decisions can be enforced. But they are not beyond the law, and the law cannot be subverted by any adjudication of theirs. (Hoffman, mayor, etc., v. Schultz and others, 31 How., 385.) Every person who assumes to judge of and remove an obstruction to a highway upon the ground that it is a nuisance, does so at his own risk. If he misjudges, he is liable for the damages; if he is right, the law will uphold him. The action of the village of Watkins in its corporate right and by its agents is subject to the same rule. No power is given it to create and declare that a nuisance which by law is not recognized as such. Even if this encroachment were a nuisance, it would justify only such a degree of abatement as would enable the public to enjoy the right of way. (37 Barb., 301.) In doubtful cases other modes are provided for determination of mutual rights. Such modes should be pursued where each party may be fairly heard and the rights of each equally protected. The motion for a new trial should be denied and judgmen ordered for plaintiffs on the verdict with costs. Mason v. Hand. DAVID MASON, Appellant, v. THOMAS HAND, Respondent. (GENERAL TERM, SIXTH DISTRICT, MAY, 1869.) When an action is brought directly upon a contract, express or implied, to recover the moneys due thereby, the summons should be framed in accordance with sub. 1, of § 129 of the Code. The People v. Bennett (6 Abb., 343) upon this point, approved and followed. When the action seeks to recover damages arising from a breach of contract, the summons should be in the form required by sub. 2 of said section. Semble. The complaint claimed a larger amount than that demanded by the summons.-Held, the variance was immaterial. APPEAL from an order of the Special Term setting aside a complaint for variance from the summons. The summons demanded judgment for seventy-five dollars in money, while the complaint contained two counts, both apparently for the same cause of action, to wit: Board, and other necessaries, supplied by the plaintiff to the defendant's infant daughter; the first being founded on an alleged promise to pay therefor and the second upon a quantum meruit. The damages demanded by the complaint were $110. The Special Term order sets aside the complaint unless, &c. B. R. Johnson, for the appellant. E. S. Sweet, for the respondent. Present-BALCOM, BOARDMAN and PARKER, JJ. By the Court-BOARDMAN, J. This court, in the case of Hubbell v. Hubbell (MSS., opinion Genl. Tr.) adopted the rule laid down by BIRDSEYE, J., in The People v. Bennett (6 Abb., Pr. R., 343, 349), as follows: "When the action is brought for the recovery of a sum of money payable by the contract on which the action is brought, whether the contract be written or verbal, express or implied, and even if it be no more than a legal duty or liability, whether imposed by statute or declared by the judgment of a court, if the sum Mason v. Hand. sued for is certain in amount, or capable of being reduced to certainty by computation, then the summons must be in the form prescribed by sub. 1 of § 129." In 1 Tilling & Sh., Pr., 356, etc., the authorities are collected and considered, and the same conclusion arrived at. The cases of Tuttle v. Smith (6 Abb., Pr. R., 329, 14 How., 395), Kidder v. Whitlock (12 How., 208), Cobb v. Dunkin (19 id., 164), Norton v. Carey (14 Abb., 364, 23 How., 469), Garrison v. Carr (34 How., 187), cited by defendant, are none of them exceptions to the rule above laid down. Each of the above actions was brought, in part at least, to recover damages for a breach of contract. The gravamen of the complaint is the breach of the contract and the damages. The contract is only necessary as inducement. The cases cited by defendant hold that actions for damages arising from a breach of contract come under the 2d sub. of § 129, in which opinion this court entirely concur. But when the action is directly upon the contract, express or implied, to recover the moneys due thereby, the summons should be framed in accordance with the 1st sub. of § 129. If the summons be so framed, and demands money only, it matters not what the complaint may claim by way of damages in case of default, since judgment can be taken for no greater sum than is claimed in the summons. (Code, § 246, sub. 1.) The variance between the amounts claimed in the summons and in the complaint is, therefore, immaterial, and cannot prejudice the defendant. The order appealed from should be, reversed, with ten dollars costs, and the defendant's motion denied, with ten dollars costs. Cummings v. The New York and Oswego Midland Railroad Co. STEPHEN M, CUMMINGS, Appellant, v. THE NEW York and OSWEGO MIDLAND RAILROAD COMPANY, Respondent. (GENERAL TERM, SIXTH DISTRICT, MAY, 1869.) To charge a railroad corporation with liability for the indebtedness of a contractor to his laborers, under § 12 of the general railroad act (Laws 1850, chap. 140), the indebtedness must arise from services personally performed by the laborers. Accordingly, where an action was brought against a railroad company, in the manner provided by that section, to recover for the services of plaintiff's servant and team, rendered upon the defendant's road, for a contractor constructing a portion thereof, the claim was disallowed. APPEAL from an order of the Chenango County Cou:: denying plaintiff's motion for a new trial. Plaintiff sued for his personal labor, and also for the services of his servant and team, while engaged upon the construction of a portion of the defendants' road, under the employment of a sub-contractor for such construction, and had recovered judgment on both claims before a justice of the peace. There was a retrial upon appeal, when plaintiff proved his personal services, and offered to show those ra dered for the sub-contractor by his servant and team, in te construction of the road. The offer was rejected, and plai a tiff excepted. It appeared also that the action was brought, after the notice required by § 12, chap. 140, Laws 1850, and within the time limited thereby. The court ruled that plaintiff could recover only for his personal services, and directed a verdict for the value thereof, with interest. To the ruling and direction plaintiff excepted, and moved, upon a case containing the exceptions, for a new trial, which was denied, and appealed from the order denying his motion. Calvin L. Tefft, for the appellant. David L. Follett, for the respondent. Present-BALCOM, BOARDMAN and PARKER, JJ. By the Court-BALCOM, P. J. The defendants are a railroad |