John L. Merritt, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent

John L. Merritt, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent. Merritt v. Mayor, etc., of New York 21 App. Div. 165, appeal dismissed. (Argued January 16, 1901: decided February 26, 1901.) Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 11, 1899, affirming a'judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. Charles Haines for appellant. John Whalen, Corporation Counsel (Theodore Connoly and Henry T. Dykman of counsel), for respondent. [MAJORITY — Haight, J.] Haight, J. The complaint in this action alleges that the plaintiff was engaged in the milk and dairy business on a farm situated in the town of Lewisboro, Westchester county, and that in or about the month of May, 1893, the commissioners of public works of the city of New York, under and pursuant to chapter 543 of the Laws of 1885, and the several acts amendatory thereof and supplemental thereto and in continuation thereof, and by virtue of the power and authority vested in the defendants' by the acts, rules and regulations of the state board of health for the sanitary protection of the Croton river and its tributaries, ordered and commanded the barn on the said premises then occupied by the plaintiff to be vacated and prohibited its use thereafter, and that by reason thereof the plaintiff suffered damages, for which he demanded judgment in this action. Issue having been joined upon the complaint in the action, the case was moved for trial, and thereupon the plaintiff admitted that the state board of health had not ordered the construction of any sewerage system affecting the lands of the plaintiff for the benefit of the potable water supply of the defendant. Upon these concessions the defendant moved for judgment upon the pleadings. This motion was granted and judgment was ordered for the defendant dismissing the plaintiff’s complaint, with costs. The appeal book in this case does not contain any minutes of the trial, and it does not appear that any exception was taken by the plaintiff to the order of the court granting the defendant’s motion for judgment. All of the facts disclosed with reference to the trial appear only in the recitals of the judgment. No exception having been taken, no error of law is presented which this court has the power to review. The appeal, therefore, should be dismissed, with costs. Bartlett, Martin, Vann and Landon, JJ., concur; Parker, Ch. J., and Cullen J., not sitting. Appeal dismissed.