defendant corporation located upon the site thus selected and designated and began excavating for the building to be erected thereon. Thereafter, and on the 10th day of May, at an adjourned meeting of the board of trustees, a resolution was adopted rescinding the permission theretofore given to the defendant corporation to erect its church upon the site so selected, and its officers and agents were notified thereof and requested to desist from further operations; but they insisted upon their right to proceed, and this action was brought to restrain them. The defend· ant corporation never had occupied any portion of block 66 prior to May, 1889.

George T. Spencer, for app'lts; A. S. Kendall, for resp'ts.

MACOMBER, J.-On the 10th day of April,,1837, prior to the incorporation of the village of Corning, the territory now embraced within the corporate limits was by the owners thereof, Ansel Bascom, Hiram W. Bostwick and Bowen Whitney, plotted and laid out into blocks, and subdivided into village lots, with defined streets and alleys. Block No. 66, the right to occupy a portion of which is in controversy in this action, consisted of about four acres of land lying upon a side hill towards the south side of the village. Such lands were generally offered in market for sale and for occupancy except this plot No. 66, together with what is known as the Dickinson House Square. There was reserved from sales to settlers this block No. 66, and the same was used by the inhabitants of the village thereafter, or so much thereof as was not otherwise occupied, as a public square or park, as pleasure grounds and as a place for public gatherings. Such use was continued for many years after the incorporation of the village of Corning, which was on the 12th day of January, 1848. Churches and a school house, all structures of wood, were erected upon portions of this park without objection being made, but without written authority. But the defendant, the rector, wardens and vestrymen of Christ Church, did not, nor did any of its predecessors, occupy any portion of such lands for church purposes. Before the beginning of this action, however, all such church edifices, together with the school house, had been removed, leaving this plot of ground without any buildings thereon except the county court-house.

On the 15th day of September, 1855, the original proprietors, by their trustees, Erastus Corning and Joseph Fellows, conveyed the fee of this tract to the village of Corning, excepting so much. thereof as had been conveyed to the county of Steuben as a site. for a court-house and jail, and it was expressed in such deed that this block "is to be used by the inhabitants of said village of Corning as sites for the erection of the following public buildings, viz. a county court-house, clerk's office, town or city hall and gaol, churches or places for public worship, for academies and union school houses and for a public park, and for no other purposes and for no other use whatever. The last described piece of land hereby conveyed to be used and enjoyed by the inhabitants of said village as a public park, excepting nevertheless and always

reserving to the grantors, or their representatives, the right at any time to lay one or more railroad tracks, with switches and all necessary siding therefor, through the said granted last described piece of land, on such course and direction as they shall elect; to use for that purpose and no other use or purpose whatsoever, together with all and singular the hereditaments and appurtenances,"

etc.

It admits of no doubt that, by this conveyance, the fee of the lands in question was conveyed to the village of Corning, subject only to such rights of occupancy, if any, as had theretofore become vested, No trust was impressed upon the grant requiring the grantee to give to persons subsequently applying therefor any right of occupancy. Under this deed no one could enter upon such lands without the permit of the village. Whatever interest any religious corporation might seek to work out under it would be through a supposed trust imposed upon the grantee for its benefit. But any such supposed trust is not recognized by the statutes of this state, in so far as it is claimed that the same was designed for pious uses (1 R. S., 727, § 45), and the same is not cognizable by our courts.

By chapter 318 of the Laws of 1840, § 2, the right to hold real and personal property in trust for certain purposes is conferred upon municipal corporations; but those purposes are educational, charitable and secular in their character, and do not include such as may be termed pious or religious. The right had been conferred already upon the county of Steuben to erect and maintain a court house and jail upon a portion of this block. The public park is concededly among the objects which the act of 1840 permits municipal corporations to maintain, and hence the deed to the village of Corning for these purposes was valid and capable of enforcement. Harrison v. Harrison, 36 N. Y., 543; Manice v. Manice, 43 id., 303; Woodgate v. Fleet, 64 id., 566.

In our judgment, the true construction of the deed of 1855, above mentioned, in so far as it appertains to the claim made by this religious body, is that it merely recognized the vested rights of the religious bodies which then occupied portions of these lands for religious purposes. There is nothing in the deed designed to perpetuate such occupation, nor is there anything in it designed to invite further occupation of that character. No provisions are found in that instrument by which any given religious society might put itself in position to demand of the village authorities the right to enter upon and possess the lands for religious uses. In the absence of such provisions, and with no means provided for carrying any supposed trust of this character into effect, a further discussion of the matter is unnecessary, for we know of no law which permits municipal corporations to parcel out their possessions for pious uses.

Yet, whatever the acquired rights of the religious bodies occupying portions of these lands may have been, there is at present no reason remaining why either they or their successors, or any other religious bodies, should lay claim to any right of further occupancy. The several church societies, occupying portions of

this property, have voluntarily, and doubtless in view of the general purpose for which this plot of ground was laid out, abandoned their possession and have erected places of worship else

where.

In the year 1884 the legislature, at the special instance and request of the village, passed an act (chap. 99) relating to this public park, by which it was enacted that this block should be under the exclusive control and management of a board of commissioners to consist of five persons named in the act. Such commissioners and their successors were made a board of commissioners, to be known as the park commission of the village of Corning, and such commission immediately entered upon the discharge of its public duties. Such commission was given by this act full power to govern, manage and direct the park, to grade, lay out and improve and regulate the same, together with the approaches connecting said park with the streets, and to have full control of all streets, alleys and passageways through the same. The board was further empowered to remove any obstruction that might exist upon the park other than the removal of the court house. It was also given the control and custody of funds and moneys contributed or appropriated for the improvement, grading and management of the park, and was permitted to receive bequests, gifts, donations in trust for the improvement and ornamentation thereof, and to adopt and pass such rules and ordinances as were thought necessary for the proper regulation and protection and government of the park and its approaches.

Under this act it was not lawful for any person to enter upon this park for the purpose of erecting any building for religious worship or private occupation. The defendant, the rector, etc., of Christ church, it is true, before beginning the work of erecting a church, obtained the consent of the trustees of the village, but the same, under this act, was a nullity. But even had the trustees the power to permit such occupation and use, the consent so given was but a mere license, and hence revocable at pleasure, and the same was in fact revoked before this religious body had expended any appreciable labor or money in pursuance of such permission. There is no room for the doctrine of equitable estoppel to be applied in this regard. Cronkhite v. Cronkhite, 94 N. Y., 323; Duryee v. The Mayor, 96 id., 477.

The judgment appealed from should be affirmed, with costs.
DWIGHT, P. J., and CORLETT, J., concur.

ALBERTUS LARROWE, App'lt, v. HERMAN J. LEWIS, D. HORATIO LEWIS and HARRIS LEWIS, Resp'ts.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) CONTRACT-WHEN NOT VARIED BY CUSTOM.

Plaintiff's assignor contracted to purchase of defendants railroad ties at a specified price, nothing being stated as to quality. In an action for an alleged overpayment the referee refused to find that ties are classified as firsts and seconds, and that the second class ties were taken and received by N. Y. STATE REP., VOL. XXXIII. - 97

plaintiff's assignor at half the price of first class ties, and held in substance that the contract required payment of the price mentioned for all ties delivered and accepted. Held, no error, in the absence of a modification, which could not be proved by custom.

APPEAL by plaintiff from a judgment entered in Livingston county upon the report of a referee dismissing the complaint. Action brought to recover for moneys alleged to have been overpaid by plaintiff's assignor to defendants.

E. A. Nash, for app'lt; J. F. Parkhurst, for resp'ts.

CORLETT, J.-On the 23rd day of May, 1881, a contract was made, of which the following is a copy:

"Messrs. Lewis Bros. :

"May 23, 1881.

"GENTS-I will give you 47 cents for your white and yellow oak, and 37 cents for black oak, cherry, red oak, chestnut, butternut and slippery elm ties piled up on the flats below the mill, you to give me all you can get during the season suitable for rafting; ties to be counted and paid for before put in the river, you to put them in the river as directed by me.

"(Signed)

"We accept your offer.

"(Signed)

T. J. REYNOLDS.

LEWIS BROS."

Before any of the ties were counted or delivered, a quantity were washed away by high water, on account of which the defendants made a claim upon Reynolds, and he agreed to allow them out of the moneys advanced by him the sum of $125, the defendants to have all the washed away ties they could find. Also, that on account of the allowance of the ties washed away, those to be delivered should be drawn to a railroad station near by. The referee also found that it was agreed between the parties that the ties should be counted according to the contract, and that the defendants should furnish men enough to deliver the ties to Reynolds. The referee also found that the word "counted," as. used in the contract and as understood by the parties, meant that the ties should be inspected; that they were inspected by one Tallman, an inspector of railroad ties employed by Reynolds; that Tallman classified all ties not rejected as "firsts" and "seconds," indicating that the ties classified as firsts were of first class, and those classified as seconds were of that quality. He also found that after they were so inspected, they were counted and numbered by a brother of Reynolds and one of the defendants, and that the brother entered the same upon a book kept by him, and called the number to said defendant, who entered the same upon a book kept by him, the books being compared from time to time to correct differences; that the numbers as so entered corresponded with the inspection of Tallman, and were:

That the ties so inspected and counted were delivered to Reynolds about the 16th day of October, 1882. While the inspection was progressing the defendants notified said Reynolds that they did not recognize and would not accept any ties counted or inspected as seconds.

On the 3d day of August, 1881, Reynolds purchased from the defendants 13,708 feet of oak timber at the price of $21 per thousand, and on the 3d day of February, 1883, 32 red oak ties for the price of 37 cents each; 16 red oak ties at the price of 184 cents each; 14 red oak ties at the price of 47 cents each; 3 white oak ties of the value of 234 cents each, and 108 chestnut ties of the value of 45 cents each. The defendants also drew to the railroad station for Reynolds 2578 ties at the agreed price of 5 cents each.

The referee also found that the values of the ties delivered at the price stated in the contract were 1532 white and yellow oak ties at 47 cents each, $720; 4861 red oak and C. ties at 37 cents each, $1,798.57; that the 13,708 feet of oak purchased from the defendants by Reynolds amounted to $282.87; also that the ties purchased by Reynolds from the defendants on the 3d of Febru ary, 1883, were of the value of $70.68; that the services of the defendants for drawing ties were worth $125.90, and the allowance for ties washed away $125, amounting in all to $3,128.88.

On the 12th of February, 1883, Reynolds assigned his claim to the plaintiff, which amounted according to his theory to $483.12. Afterwards this balance was demanded and the defendants refused payment. The referee dismissed the complaint.

The plaintiff's counsel requested the referee to find that ties are classified as first class or firsts, and second class or seconds and culls; also that in pursuance of the arrangement, the ties were inspected by Tallman, and were counted as above stated and delivered by the defendants to Reynolds; also, that the second class ties were taken and received by Reynolds at one-half the price of first class ties. These requests were severally refused and excep

tion taken.

Each of these requests involved the proposition that proof of a general custom, without evidence of its application to the facts of this case, operated as a change or modification of the original contract between the parties. This is the plain import of the language of the requests and it was manifestly so understood by the referee. There was no error in these refusals.

The defendants on the trial admitted receiving the sum of $3.000.90.

The case was tried once before. and resulted in a report in favor of the plaintiff for the alleged over-payment. On appeal the judgment was reversed, and a new trial granted by this court. 41 Hun, 226; 7 N. Y. State Rep., 809. One of the justices in his opinion states, "Under the contract in question, the defendants were required to furnish and deliver to the plaintiff's assignor merchantable and probably first class railroad ties of the kind of timber specified, and he was required to accept all such ties offered and pay therefor the stipulated price, having the right to inspect