City Court of New York, May, 1908. [Vol. 59. cubic yards, plus a small fraction of a cubic yard. The evidence of the character of the debris and the fact that a quantity of tin was left upon the premises were corroborated. The testimony of the defendant Rosoff was that the reasonable cost of removal of the debris such as came from these buildings was $2 a load of two and one-half cubic yards, making the total cost, based upon the figures given, of $1,776. If twenty-five per cent. of this was required to be removed the pro rata cost would be $444. The defendants raise the question that the sum sued for was in the nature of liquidated damages, and, therefore, the jury, finding for the plaintiff upon the issues presented, should have found a verdict for said sum, and that a verdict for a smaller amount cannot be sustained. In considering this question it should be observed that the agreement is by reference made part of the bond, and, therefore, in seeking the extent to which the defendants obligated themselves to the plaintiff and in determining the scope of their liability, the two documents should be read together. Though the liability of a surety is in strictissimi juris, his undertaking must be given a fair and reasonable construction, and the intention of the parties sought to be ascertained, guided by the same rules applicable to the construction of contracts in general. Smith v. Molleson, 148 N. Y. 241, 246. However, the question whether such damages as are stipulated in the gross amount. fixed for a failure to perform a contract are in the nature of a penalty is one of considerable difficulty, and the authorities upon the subject are replete with contradictions. Nothing can be gained by a review of the numerous cases where the question is discussed. One rule of construction, however, seems established. That is, that the courts are to be governed by the intention of the parties, to be gathered from the language of the contract itself, and from the nature of the circumstances of the case. Colwell v. Lawrence, 38 16 N. Y. 71; Kemp v. Knickerbocker Ice Co., 69 id. 45. In Hosmer v. True, 19 Barb. 106, 109, Johnson, J., says: Whether a sum agreed to be paid as damages for the violation of an agreement, shall be considered as liquidated damages or only a penalty, depends upon the meaning and Misc.] City Court of New York, May, 1908. intent of the parties as gathered from a full view of the provisions of the contract, the terms used to express such intent, and the peculiar circumstances of the subject-matter of the agreement (Dakin v. Williams, 17 Wend. 447; s. c., 22 id. 201). The contract in such cases, as in every other, is to govern, and the true inquiry is, what was the undertaking? Whether it was folly or wisdom for the contracting parties thus to bind themselves is of no consequence if the intention is clear." Mundy v. Culver, 18 Barb. 336, 238, is authority for the statement that there are various legal rules for ascertaining whether a sum named in a contract to be paid by a defaulting party was intended as liquidated damages or a penalty merely. Among these rules is one well established by numerous decisions, that when a contract is such that the damages, in case of a violation of it, will be uncertain in their nature and amount and the parties have stipulated that in the event of a breach a certain sum shall be paid by the party in default as liquidated damages, they will be regarded as having so intended, and that sum will be treated as the measure of damages. Sedg. Dam. 421; Holmes v. Holmes, 12 Barb. 137; Dakin v. Williams, supra. Considering the subject-matter of the agreement in the case at bar, the nature of the transaction that the bond was intended to facilitate, and giving a natural construction to the provisions of the contract and bond in seeking therefrom the intention of the parties, it seems quite clear to me that the defendant Rosoff bound himself to remove certain specified debris within a certain time limitation, and that upon a breach of his obligation both defendants obligated themselves to respond in damages to the plaintiff in such sum, not exceeding $1,000, as he may have been damnified, governed by the proper measure of damages in such cases. The defendants urge that the plaintiff failed to prove that he suffered any actual damage whatever, as the evidence showed that the premises in question, with the debris thereon, were sold and conveyed to a third person. When the breach of said contract occurred the rights and liabilities of the parties became fixed and determinable. The breach occurred, as found by the jury, thirty days after the City Court of New York, May, 1908. [Vol. 59. date of the contract, when the defendant Rosoff had failed to remove the debris pursuant to contract, and the plaintiff was entitled then to recover damages to be measured by the cost of removal of the debris that the defendant Rosoff should have removed. How can a subsequent history of the premises in question affect the rights and obligations of the parties as they then existed? When we regard the fact that this action may have come to trial at the first Trial Term of this court after November 2, 1905 (the date of the joinder of issue herein) and before the premises were sold and conveyed, the fallacy of this proposition becomes apparent. Should the fact that our calendars are congested, and that two and a half years elapsed from the joinder of issue herein till the trial of said issue, narrow the plaintiff's rights or affect the defendants' liabilty? In the case of Scott v. Haverstraw Clay & Brick Co., 135 N. Y. 141, involving the question as to the measure of damages for a breach of a covenant by which the defendant bound itself to leave the surface of a brick yard leased by it in a smooth condition, which condition was necessary in order to manufacture brick successfully in the manner in general use when the contract was made, at page 150, the court says: "The fact that since the lease was made other methods for making brick have been devised, which rendered this condition of the surface unnecessary, does not change the construction to be put upon the covenant, nor the defendants' liability under it." To the same effect is Appleton v. Marx, 191 N. Y. 81. The question raised by the defendants as to the sufficiency of the evidence as to the quantity of debris other than old mortar and cement left upon the premises is answered by the fact that the evidence on this element of the case was submitted to the jury, who found by their verdict what proportion of the unremoved debris was other than old mortar and cement. Assuming for the sake of argument that the evidence on this proposition was meager, the jury passed upon the credibility of the witness on this point and the probability of his evidence, and found the facts substantially to be as testified to. There is sufficient, in my opinion, to support the verdict, and I am loath to disturb it. Motion to Misc.] Supreme Court, June, 1908. set aside the verdict and for a new trial denied. The de fendants may have ten days' stay of execution after notice of entry of judgment and thirty days to make and serve a case. Motion denied. SAMPSON W. GEORGE, as Trustee, etc., of PHILIP R. GEORGE, Deceased, Plaintiff, v. THE VILLAGE OF CHESTER, Defendant. (Supreme Court, Orange Special Term, June, 1908.) Constitutional law - Deprivation of life, liberty or property without due process of law - Taking property for public or private useRights of riparian owners. Health Health regulations and offences Municipal water supply- Property rights in Rules and regulations of the State Commissioner of Health for the protection from contamination of the public water supply of a municipality, made under the authority of the Public Health Law, cannot deprive landowners adjacent to a pond or lake of the ordinary and reasonable use of the waters adjacent to and covering a part of their lands without compensation. ACTION for an injunction. Watts & Cox, for plaintiff. M. N. Kane, for defendant. TOMPKINS, J. The plaintiff was the owner of premises, a part of which is, and from time immemorial has been, covered by the waters of a lake known as "Long Pond " or "Walton Lake;" and plaintiff and his predecessors in title have, from time immemorial, freely exercised, in and upon said lake, and particularly the part thereof covered by, and adjacent to, said premises, and as an incident and appurtenance to their ownership thereof, the rights of swimming, bathing, watering cattle, boating, fishing and such other rights as are ordinarily exercised by a riparian owner. Supreme Court, June, 1998. [Vol. 59. The complaint alleges that in or about the year 1894, the defendant, which is an incorporated village, wrongfully and without plaintiff's consent, erected, and has since continuously maintained upon certain property, near the outlet of said lake, a dam which has raised the waters of said lake several feet and caused them to flow over a great part of plaintiff's premises, thereby damaging the same, and depriving plaintiff from the use thereof; and the plaintiff asks for equitable relief to prevent the overflow of his lands; but, upon the trial, that claim was waived so far as this action is concerned, inasmuch as proceedings are pending on behalf of the defendant for the condemnation of the plaintiff's lands, overflowed as aforesaid, and the only question now presented for determination is, whether the plaintiff can maintain this action to enjoin the defendant from interfering by threats, criminal proceedings and the enforcement of the rules and regulations of the New York State Commissioner of Health, with swimming, bathing, boating, fishing, watering cattle and such other uses as are generally enjoyed by a riparian owner, by the plaintiff and his lessees. It appears that, pursuant to the provisions of the Public Health Law, the State Commissioner of Health enacted certain rules and regulations for the protection from contamination of the public water supply of the defendant, which were regularly published, and which, among other things, provided that no person should be allowed to bathe in the said lake or reservoir, or in any watercourse of the Chester Water Supply, and that no manure pile or compost heap shall be located, placed, maintained or allowed to remain, with its nearest point less than 150 feet from the reservoir, or less than 75 feet from any watercourse of the Chester Water Supply, and containing other provisions which would interfere with the plaintiff's use of his lands adjacent to the said lake or reservoir, in the manner in which said lands are commonly used. It also appears that the plaintiff has for several years leased camping privileges upon his land adjoining the waters of the said lake or reservoir to parties for the summer months; and that, in the year 1906, the defendant caused |