sovereign power has prescribed that title to the private property is transferred from its owner. The rule is too familiar to require discussion at this day that a statute authority in derogation of the common law to divest the title of one must be strictly pursued, and all prescribed requirements strictly observed and conformed to, or it will be ineffectual for the purpose. 4 Hill, 76-86; 10 N. Y., 329; 78 id., 362, 366; 96 id., 351, 357. The fact that the proceeding is for the purpose of acquiring private property is argument enough, if any argument were needed in behalf of a statutory prescription. The land owner is entitled to the notice provided for and to the opportunity of knowing exactly by the map and survey which has been made and filed, where and how the line or route of railroad is projected. Such knowledge is evidently of so practical and available a character that it is provided for in order to enable the property owner the more readily to determine the question of acquiescence, or of opposition. But discussion is needless on this head. The act of 1884 refers the company to the provisions of the general act of 1850 for purposes of acquiring private lands, and no reason in law exists why those provisions should not be as binding and the protection to the private citizen be as sacredly maintained in the case of a street railroad as in that of a steam railroad. The rule is a salutary one, and should be respected for that reason, as well as for its absoluteness under the statute. For the reasons expressed in the foregoing opinion, the order appealed from should be affirmed, with costs. All concur (EARL, J., in result on last ground discussed in opinion), except RUGER, Ch. J., not voting. THOMAS HOGAN, Adm'r, Resp't, v. THE CENTRAL PARK, NORTH & EAST RIVER RAILROAD CO., App'lt. (New York Superior Court, General Term, Filed November 3, 1890.) NEGLIGENCE-RAILROADS. Where the driver of a horse car, in attempting to put off a trespasser, acts in such a way as to cause him to believe that bodily punishment is about to be inflicted upon him, although he offers no resistance, it is not contributory negligence for the trespasser to jump off the wrong side of the car, and in front of an appreaching car on the other track; but the railroad company is liable for the ill timed act of its agent. APPEAL from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant's motion upon the minutes for a new trial. Vanderpoel, Cuming & Goodwin, for app'lt; Hays & Greenbaum, for resp't. FREEDMAN, J.-The action was brought by the plaintiff as administrator of his infant son, John Joseph Hogan, deceased, for damages by reason of the death of the said John Joseph Hogan, occasioned by the alleged negligent and wrongful acts of the defendant. At the trial, evidence was given upon which, if credited, the jury could find that defendant's driver, in attempting to put the intestate off the car as a trespasser, acted in such a way as to cause the intestate to believe that bodily punishment was about to be inflicted upon him, although he offered no resistance, and that consequently, within the rule laid down in McCann v. Sixth Ave. R. R. Co., 117 N. Y., 505; 27 N. Y. State Rep., 834, it was not contributory negligence on the part of the intestate to jump off on the wrong side of the car on which he was stealing a ride, and to jump in front of the horses of a car coming in the opposite direction upon an adjoining track. In such a case the defendant's liability rests upon the rude and ill-timed act of the agent who attempts to put the trespasser off. This point was fairly submitted to the jury, and they were instructed to find for the defendant in case they should come to the conclusion that the attempt of defendant's driver to induce the intestate to leave the car involved no menace of bodily harm. Upon testimony which was conflicting the jury determined the fact in favor of the plaintiff, and their verdict in this respect cannot be disturbed. The case seems to be fully controlled by the decision in McCann v. Sixth Ave. R. R. Co. It is even a stronger case for the plaintiff, for while in the McCann case the car from which the plaintiff was caused to jump was standing still, the proof in this case is that the car from which the intestate was caused to jump was kept moving. In view of that decision none of the rulings of the learned judge who presided at the trial can be held to have been erroneous. The substance of the seventh request had already been charged, and consequently the refusal to charge otherwise than already charged constituted no error. The judgment and order should be affirmed, with costs. GEORGE T. PATTERSON, Pl'ff, v. THE MUTUAL LIFE ASSOCIATION (New York Superior Court, General Term, Filed November 3, 1890.) 1. SUBMISSION OF CONTROVERSY. Where the only proper judgment that can be rendered on the facts stated is an injunction, the submission should be dismissed. 2. SAME. No question was made as to the right of plaintiff to recover the amount of the certificate, the only point in controversy being the right of defendant to lay an assessment for its payment, defendant claiming to have such right. Held, that the only controversy that could possibly be the subject of an action would be to restrain defendant by injunction from making the assessment, and that is prohibited by § 1281 of the Code. CONTROVERSY submitted under § 1279 of the Code. Joseph Kunzman, for pl'ff; Clifford A. II Bartlett, for def't. INGRAHAM, J.-This is a controversy submitted upon an agreed statement of facts for the purpose of procuring a judgment as to the right of the defendant to assess the amount that they would be required to pay upon the death of one George T. Patterson, a member of the association. By 1281 of the Code it is provided that if the statement of facts contained in the case is not sufficient to enable the court to render judgment, an order must be made dismissing the submission, without costs to either party. This case comes within this provision, and it is impossible for the court on the statement of facts contained in the case to render any judgment authorized in such a proceeding. The question that the court is asked to determine involves a construction of § 23 of the by-laws of the association, which is substantially reproduced in the certificate issued to its members. That section provides "that the relief fund above $100,000 may be applied to the payment of claims in excess of the American Experience Table of Mortality.' Both parties conceded that the plaintiff is entitled to recover from the association the amount named in the certificate, and the only point in controversy is as to whether or not the association has the right to cause an assessment to be levied upon the members of the association to pay that claim. No such assessment has yet been levied, and the only fact in relation to such assessment that is stated in the submitted case is that the association claims the right to make such an assessment. The only judgment, therefore, that the court could give that would at all be effectual would be an injunction restraining the association from making such an assessment. In the case of the Cunard Steamship Company v. Voorhis, 104 N. Y., 528; 5 N. Y. State Rep., 736, it was held that in such a case the court had no jurisdiction to decide the controversy or render judgment on the merits; section 1279 of the Code authorized the parties to a question in difference, which might be the subject of an action, to agree upon a case containing a statement of facts upon which the controversy depends, and present the same to the court. Such a question must be one which might be the subject of an action, and § 1281 expressly prohibits any relief by injunction. Now on the facts presented the only controversy that could possibly be the subject of an action would be to restrain the defendant by injunction from making the assessment, and that § 1281 prohibits. I think, therefore, that this court has no jurisdiction, and that the proceedings must be dismissed, without costs. FREEDMAN and TRUAX, JJ., concur. ADDIE F. WHITNEY, Resp't, v. SILAS G. WHITNEY, App'lt. (New York Superior Court, General Term, Filed November 3, 1890.) CONTEMPT-NON-PAYMENT OF ALIMONY. An order committing a person for contempt in not paying almony must contain an adjudication that the refusal to do so is calculated to or did actually defeat, impair or prejudice the rights of the party in whose favor it has been ordered, and must show that payment cannot be enforced by execution, sequestration or resort to security. APPEAL from an order made at special term adjudging the defendant guilty of contempt in not paying alimony and counsel fee. Charles H. Ketchel, for app'lt; Andrew F. McNickle, for resp't. TRUAX, J.-We held in Mahon v. Mahon, 50 N. Y. Supr. Ct., 92, that an order committing a person for contempt in not paying alimony and counsel fee must contain an adjudication that the party sought to be committed has refused to pay alimony and counsel fee, and that such refusal was calculated to or did actually defeat, impair or prejudice the rights of the party in whose favor alimony and counsel fee had been ordered. The order now before us on this appeal does not contain such an adjudication. See Matter of Swenarton v. Shupe, 40 Hun, 41; Sandford v. Sandford, 40 id., 540; 2 N. Y. State Rep., 133. Section 1773 of the Code of Civil Procedure provides that when the husband, in an action for divorce, fails to pay any money required to be paid by an order, and it appears to the court that payment cannot be enforced by execution, sequestration or resorting to his security, he may be punished for contempt. In the order before us no provision was made for security, nor does it appear that payment of alimony and counsel fee cannot be enforced by sequestration proceedings, or by execution. It is true that the attorney for the plaintiff states in the affidavit on which the order appealed from was granted, that he believes that "an execution issued against the defendant herein could not be satisfied by reason of defendant's being out of this court's jurisdiction," but such statement is not one on which the court could determine that payment of alimony could not be enforced by execution. Nor does it appear in the order that the court did so determine. For these reasons the order appealed from is reversed. See Cockefuir v. Cockefair, 7 N. Y. Sup., 170; Sandford v. Sandford, 44 Hun, 563; 9 N. Y. State Rep., 46. Order reversed and motion denied, without costs, and with leave to plaintiff to renew on further affidavits. INGRAHAM, J., concurs in result. THOMAS MORTIMER, Resp't, v. JACOB DOELGER et al., App'lts. (New York Superior Court, General Term, Filed November 3, 1890.) VERDICT-WHEN WILL NOT BE DISTURBED. Where the evidence as to the question in issue was conflicting, and neither side asked the direction of a verdict, and the case was submitted to the jury under a charge which carefully guarded the rights of the parties and to which no exception was taken, the verdict cannot be disturbed. APPEAL from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendants' motion upon the minutes for a new trial. Michael C. Gross, for app'lts; Hugh Coleman, for resp't. FREEDMAN, J.-This action was brought to recover for services rendered by the plaintiff to the defendants in procuring, under an employment for that purpose, purchasers of beer manufactured by the defendants. The real issue litigated at the trial was as to the rate of compensation to which plaintiff was entitled. Plaintiff N. Y. STATE REP., VOL. XXXIII. 89 claimed that his agreement with the defendants was that he should receive fifty cents for each and every barrel sold through his procurement of the purchaser. According to the contention of the defendants, plaintiff was to receive fifty dollars for each customer. There was quite a conflict of evidence, direct and circumstantial, upon this issue. Neither side asked for the direction of a verdict on the ground of any alleged preponderance of the evidence, or any other ground. Both parties in effect conceded that there was sufficient evidence to require the submission of the case to the jury, and each took the chance of a favorable verdict which was to conclude the other side upon the facts, and the case was submitted to the jury under a charge which carefully guarded the respective rights of the parties and to which no exception was taken. Under these circumstances the verdict of the jury, which was for the plaintiff, cannot be disturbed. Keeler v. Barretts, etc., Dyeing Establishment, 54 N. Y. Superior Ct., 369. The judgment and order should be affirmed, with costs. CHARLES C. TABER et al., Resp'ts, v. THE NEW YORK ELE- (New York Superior Court, General Term, Filed November 3, 1890.) 1. RAILROADS-TRESPASS-EVIDENCE. Where one of the defenses to an action for damages caused by the operation of an elevated railway is that plaintiff saw the work of construction going on and never objected or interfered to prevent it, it is not error to admit testimony to show that in building the road defendant put posts in plaintiff's vaults and that plaintiff protested against its so doing. 2. TRIAL STIPULATIONS-EXPERT EVIDENCE. The owner of real estate in the neighborhood of the property described in the complaint, who testifies to facts, is not an expert within the meaning of a stipulation restricting each side to three real estate expert witnesses. APPEAL from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial. Action to recover damages for the maintenance and operation of defendant's railroad in front of plaintiffs' property. Davies & Rapallo, for appl't; John E. Parsons, for resp'ts. TRUAX, J.-The trial judge allowed the plaintiffs to show that when the defendant began to build an elevated railway in front of plaintiffs' premises it went into the vaults of plaintiffs' building and put posts there and that the plaintiffs protested against defendant's employees so doing; and to-this ruling of the trial judge the defendant excepted. It was not error for the trial judge so to rule. One of the defenses set up by the defendant was that the plaintiffs stood by during the construction of the railroad and saw the work going on and never objected, remonstrated or interfered to prevent it. The testimony above referred to tended to disprove this defense and it was not error to admit it in evidence. The defendant contends on this appeal that the trial judge erred in admitting the testimony of an additional expert in the face of a stipulation restricting each side to three expert witnesses. The |