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then the plaintiff is not entitled to maintain this action based upon such restrictive covenant.

I do not think the restrictive covenant is broad enongh to prohibit the use of the premises as a way over which to pass and repass. The language of the covenant, to-wit, "will not carry on or permit to be carried on upon said premises any noxious, offensive or dangerous trade or business," indicates that it was the intent of the grantor to prohibit the establishment on the premises of a trade to be thereon conducted and carried on which would be noxious, offensive or dangerous to other grantees in that vicinity.

The meaning of the word "business" while very broad and comprehensive in its general sense, must be limited when used in connection with the word "trade." Wakefield v. Fargo, 90 N. Y. 216; Hickey v. Taaffe, 99 id. 209; Pardee's Appeal, 100 Penn. St. 412.

It appears from the evidence that this is a residential portion of the city. All of the buildings in that vicinity are in the main small residences. There are also many vacant lots interspersed among them. It was probably the design of the grantor to prevent the location upon any of these lands of any trade or business that would be noxious or offensive to the residents of that locality.

It was not intended by the covenant to prevent owners of vacant lots from passing and repassing over them in connection with a trade or business operated or carried on elsewhere.

If the manner of passing and repassing by the owner over his land constituted a nuisance, those injured thereby would have an ample remedy independent of the covenant.

It was not the design of the covenant to protect the plaintiff from every form of nuisance, but only from the establishment of a trade or business to be conducted on the land which would be offensive, noxious, or dangerous.

Plaintiff, therefore, cannot maintain this action by reason of the restrictive covenant in the deeds, for no violation thereof is shown.

I think, however, that the complaint is broad enough, and the proof sufficient, to entitle the plaintiff to relief by reason of the existence of a nuisance, independent of the restrictive covenant.

The defendant had no right to operate this road in a manner to injure the property of the plaintiff.

Assuming that the defendant obtained permission of the Jerome. Park Railroad Company to use its tracks, yet he did not succeed to the rights of the company, or become a common carrier, or become amenable to the laws relating to railroads, or entitled to the rights or privileges of a railroad corporation.

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Supreme Court, February, 1899.

Neither did the public character of the work he was performing exempt him from liability.

To make the rights of the plaintiff subservient to the public it would be necessary to hold that the legislature intended that this particular route should be used for the purpose of carrying away the excavated material. Such contention cannot be sustained. Neither can it be contended that the legislature intended to subordinate private interests along any route which might be selected by the contractor for such purpose.

Consequential damages are withheld only in cases where it appears that the legislature expressly, or by clear implication, sanctioned the doing of the very act complained of. None of the cases go further. Hill v. Mayor, 139 N. Y. 495; Cogswell v. N. Y. & N. H. R. R. Co., 103 id. 10; Atwater v. Village of Canandaigua, 124 id. 602; Benner v. Atlantic Dredg. Co., 134 id. 156; Lester v. Mayor, 29 N. Y. Supp. 1000; Morton v. Mayor, 65 Hun, 32.

The case last cited was decided not alone upon the theory that the structure was permanent and not temporary, but because the legislature did not contemplate the doing of the particular act complained of.

Van Brunt, P. J., writing the opinion of the court, says, on page 35, "It seems to us it would be a great stretch of language to hold that because the legislature authorized the laying of mains and the erection of such structures and fixtures as the commissioner might deem necessary to deliver water at higher levels, that he, therefore, had a right to maintain any nuisance in any part of the city of New York which he might deem necessary."

It might be said with equal force that it will not do to hold that because the legislature authorized the city to construct a reservoir on the site of Jerome park that the contractor would have the right to select a route in any part of the city to cart away excavated material regardless of injury to private property.

I think it is quite clear under all of the authorities that the defendant cannot shield himself under a claim that the exercise of legislative power has operated to protect him in the doing of the acts complained of by plaintiff.

The plaintiff is, therefore, entitled to a judgment against the defendant restraining the further commission of the acts complained of, together with the costs of the action, and $150 damages already suffered by the plaintiff.

Judgment must also provide that in case the defendant shall, within twenty days after the entry of judgment, make, execute and deliver to the plaintiff a good and sufficient bond, with sureties to be approved by a justice of this court, conditioned that he will pay the plaintiff $75 for each and every year that he shall hereafter operate the road for the purpose of carrying away such excavated material, then that part of the judgment restraining the defendant shall cease to be operative.

Ordered accordingly.

NANCY ROWLAND, Plaintiff, v. L. LAFLIN KELLOGG, Defendant. (Supreme Court, New York Special Term, February, 1899.) Jurisdiction - When an action of replevin will not be permitted, by amendment, to be changed into one for conversion.

The power of the court to permit an action of replevin to be changed, by an amendment of the complaint, into one for conversion should be exercised with great circumspection and will be refused where the plaintiff has been guilty of gross laches in moving and where the defendant has gained rights, by the interposition of a counterclaim not replied to in time, which he will lose if the amendment is permitted.

MOTION by the plaintiff at Special Term for leave to serve a certain proposed amended complaint. The facts, so far as they are material, are stated in the opinion.

Charles D. Ridgway, for plaintiff.

Kellogg, Rose & Smith, for defendant.

BEEKMAN, J. This is an action of replevin. Upon the tria! an effort was made by the plaintiff to secure an amendment of the complaint, which was denied, whereupon a juror was withdrawn, on terms, in order to enable her to move at Special Term for leave to serve an amended pleading, which would supply the defect that was the subject of discussion on the trial. This motion was ac cordingly made.

But the proposed amended complaint is quite different from that which the plaintiff and the court had in contemplation when leave was given for the withdrawal of a juror. It is now sought to

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Supreme Court, February, 1899.

While the

change the cause of action from replevin to conversion. court has power to authorize this (Deyo v. Morss, 144 N. Y. 216), it should do so with great circumspection, and only where justice clearly demands it. It is in effect permitting the commencement of a new action with certain advantages of procedure had in the old, and I can see no reason why this should be allowed unless peculiar facts and circumstances are shown which clearly call for such relief, rather than for a discontinuance of the existing action and the initiation of another suit.

I fail to find any such reasons in the case at bar. Undoubtedly the plaintiff has been guilty of gross laches in not moving for leave to amend her complaint before. The necessity for it, if any existed, was as apparent before the trial was entered upon as it was afterwards. Furthermore, I do not think the court should ordinarily allow an amendment to a pleading which is radically different from that stated on the trial to be necessary or desirable, and to secure which, by appropriate motion at Special Term, the court permitted the withdrawal of a juror. It is extremely probable that the trial court would not have granted any such permission had the plaintiff's counsel then stated that his purpose was to move for leave to serve such an amended complaint as that now proposed. Under these circumstances, it seems to me that to grant the relief now asked would be subversive of the orderly administration of justice and tend to bring it into contempt.

But there is another reason why the motion should not be granted, resting on a right which the defendant has gained under the pleadings as they stand. His answer, among other things, sets up a counterclaim, to which no reply has been served, although over two years have elapsed since this defense was interposed. It is true that an effort was made by the plaintiff in April, 1898, to have her default opened, and for leave to serve a reply, but this was denied at Special Term, with costs, and the order thus made was affirmed by the Appellate Division.

The effect, then, of granting this motion would be to deprive the defendant of the important advantage which he has gained of securing the right to judgment in his favor upon the counterclaim, and to afford the plaintiff an opportunity to contest it when again set up by the defendant. Of course, it may be said that the court can provide against this by requiring the plaintiff to pay the amount of the counterclaim as a condition of granting the motion. Undoubtedly that would be done if this were the only obstacle in

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view, but, as has been said, the plaintiff has been guilty of laches in moving, and, further, has not shown adequate reason for the extreme exercise of judicial discretion which she has invoked. This I consider fatal to the motion, and leads to the conclusion that it should be denied.

Motion denied, with $10 costs.

ARMAND WOLFF et al., Plaintiffs, v. MARCUS MOSES, as a Marshal of the City of New York, Defendant.

(Supreme Court, New York Special Term, February, 1899.)

Replevin - Unless the value of chattels is "fixed" in a statutory manner, costs as of course are not recoverable-Code Civ. Pro., § 3228, subd. 2.

Although the plaintiff has taken chattels by a writ of replevin and they have never been rebonded, he cannot recover costs as of course under subdivision 2 of section 3228 of the Code of Civil Procedure, unless the value of the chattels has been "fixed", and, his testimony alone, as to the value of the property, cannot be deemed a sufficient compliance with the statute.

MOTION by the plaintiffs at Special Term for an order directing the clerk of the court to tax their costs and disbursements and overruling the objections of the defendant to the taxation thereof which were sustained by the clerk and duly excepted to by the plaintiffs. The facts of the case, so far as they are material, are stated in the opinion.

Edward B. La Fetra, for plaintiffs.

Jacob Levy, for defendant.

BEEKMAN, J. This was an action of replevin. The property was taken under the writ and delivered to the plaintiffs. It was never rebonded, but continued in plaintiffs' possession down to the time of the trial. The trial resulted in a verdict in favor of the plaintiffs, which was rendered in the following form: "For the possession of two horses mentioned in the complaint." No damages were awarded to the plaintiffs, nor was the value of the horses