Doe ex dem. Village of Fulton v. John Mehrenfield. take and certify the acknowledgment of deeds, who shall certify the same in the manner prescribed for the proof and acknowledgment of deeds; and such map or plat, so recorded, shall be deemed a sufficient conveyance to vest the fee, of such streets, etc., in such city or town corporate, in trust for the uses expressed or intended. The capacity of the plaintiff to sue, is not denied, and the only question submitted, on the record, is this: Was there such a dedication of the property, by Davies, as vested the legal title in the town of Fulton, for the public use? As the recorded plat was not acknowledged by the proprietor, in the mode required by the statute, no legal estate could, therefore, vest in the donees. It may well be regarded as evidence of the donor's intention to dedicate, but it did not create a perfect right; although, if streets had been occupied in accordance with the plat, the right of the public could not then be disputed. The proprietor would be estopped from denying it. Such has been the construction by our Supreme Court of the several clauses of the statute providing for the recording of town plats. In Wright's Rep., 749, Morris v. Bowers, Judge Collett held that the plat must have been both acknowledged and recorded, before the legal title would vest; and the same point is decided in 6 Ohio, 304, Brown v. Manning. Under a similar statute, the Supreme Court of Michigan affirm the same rule; holding that the subsequent admission of the donor of the prior dedication, even by deed, to another person, did not cure the defect in the recorded plat. 2 Doug. 256, People v. Beaubien. It is very clear, therefore, that the legal title in the property sought to be recovered, never vested in the plaintiff by virtue of the recorded plat. It is claimed, however, that the subsequent acts of Davies, and those who claim under him, may be referred to, in aid of the dedication, and thus remove all doubts as to the donor's intention. We admit the propriety of such testimony, and could give it full effect, were the plaintiff now in possession, Doe ex dem. Village of Fulton v. John Mehrenfield. claiming the property, in trust, for the public use, and the original proprietor, or his grantees, suing for the land; in such a case, there need be no technical title, as the question would have been merely upon the right to occupy under the license. The public enjoyment of the easement need not be supported by deed, if once begun, and is acquiesced in by the owners of the fee; for there can be no distinction between a legal or an equitable claim to the possession of the public, provided the use is consistent with the purposes of the dedication. On this principle, the case of, 6 Peters, 432, The City of Cincinnati v. White, was decided, and, as we believe, upon broadest view of the whole question, where the rights of the public were fully examined and determined. the The plaintiff does not pretend that she has ever assented to the dedication, or been in the enjoyment of the easement. If they had proved an occupation, with the consent of Davies, and their right had been disturbed, they would have their remedy; but the proposition, in the imperfectly executed plat, to dedicate, never having been accepted by those who represented the public, could not confer a right until the agreement was executed by some unequivocal act on the part of the donees. We suppose there is no obligation upon a municipal corporation to accept the grant of a street, on the offer of any proprietor to set apart a portion of his estate for that purpose. She may withhold her assent, and no title will pass. Such a power should always be reserved to the public authorities, else the highways of a city or town, instead of being regularly laid out and symmetrically numbered, may be as irregular in their form, width, and adaptation to the public benefit, as the caprice or humor of the individual may dictate. In that case, the city would cease to supervise and control the streets and avenues; the authority would be practically withdrawn from her appointed agents, and confided to the owners of lots within the corporate limits. In the case of Brown v. Manning, already referred to, Doe ex dem. Village of Fulton v. John Mehrenfield. Judge Lane, who delivered the opinion of the court, lays down the law thus: "It is now well settled, that where lands are dedicated, by the owners, to any lawful use, and are used for the object, and in the manner contemplated by the owner, it inures as a grant. The existence of a grantee is not essential to the validity of such dedication, nor is any particular form of words necessary to give it effect. If accepted and used by the public, in the manner intended, it works an estoppel 'in pais,' precluding the donor, and all claiming in his right, from asserting any ownership inconsistent with such use." This is but the affirmance of the general rule, adopted by the Supreme Court of the United States, in 6 Peters, 432, and since recognized in 7 Ohio, Part 2, 135, Bryant v. McCandless; 7 Ohio, Part 1, 217, Le Clerc v. Gallipolis; 8 Ohio, 298, Cincinnati v. First Presb. Church; 9 Howard, U. S., 10, Irwin v. Dixion; 1 R. I. 522, Simmons v. Cornell. If we apply the principles of these cases to this action, we find no actual acceptance or use of the property by the donees. Within a very few years from the time the plat was recorded, it was claimed to be private property, and permanently improved. It never was open to the public use, nor could it have been enjoyed as a thoroughfare from the fact that it was a part of a side hill, into which the highway must have been dug at an unusual depth, and which at the time of the alleged dedication, would seem to forbid the practicability of its present enjoyment. If the street had been extended to the point claimed, it would have terminated upon the land of another individual, without leading into, or being connected with, any outlet for the public use; and we may well infer, it was not the intention of the proprietor to donate an easement, when it could not have been reasonably supposed it would be of any value to the public. This view is further sustained by proof that the street claimed to have been laid out, some fifty feet in width, could not have had any existence beyond the point west of the W. A. Work & Son v. Samuel M. Haughton, et al. Columbia road; as it appears by the plat, that other proprietors, who are named as having donated a portion of their property for the use of the street, never executed their intention, and the purpose must, therefore, have failed. In all cases where a dedication is recorded, there must be proof of an intention to donate, by some unequivocal act; it must not be doubtful or conjectural. 8 Adol. & Ellis, 99, Barraclough v. Johnson; 11 Mees. & Wels. 827, Poole v. Huskinson; 5 Watts & Serg., 141, Gowen v. Phil. Exch. Co. We might well dispose of this case on the ground that there was no proof of an intention to dedicate the property in controversy; and when we find that the defendant, under the eye of the plaintiff, and with her knowledge of his assertion of title, has purchased his lot, recorded his deed, and erected valuable buildings, with the belief, in good faith, that he held the paramount title, he ought not now to be disturbed, unless a very clear case is made, and a valid claim to the possession established by the plaintiff. We find no such claims to exist, and, therefore, affirm the judgment of the court of special term. Judgment affirmed.. W. A. WORK & SON v. SAMUEL M. HAUGHTON, ET AL. 1. In an action for non-performance of contract, brought by A against B, wherein a discovery is asked against C and D, and that a judgment, for the damages sustained, may be rendered against them, in case it appears that they were parties to the contract, a general demurrer to the petition will be sustained on behalf of C and D. 2. A discovery can not be claimed in a petition to enable the plaintiff to find out the character and extent of his actual cause of action. The petition must contain a concise statement of facts, showing, of itself, a cause of recovery against the defendants named. SPECIAL TERM.-On demurrer to the petition. The allegations of the petition are sufficiently stated in the decision. W. A. Work & Son v. Samuel M. Haughton, et al. Woodruff & Hopkins, for plaintiffs. Tilden, Rairden & Curwen, for defendants Mitchell & Wanzer.. James&Jackson, for defendant Haughton. SPENCER, J. The petition sets forth that the defendant, Haughton, being a broker engaged in the purchase and sale of provisions, in Cincinnati, the plaintiffs gave him instructions to procure for them five hundred tierces of canvased smoked beef, at a price stipulated, to be delivered in lots of one hundred tierces, in the months of May, June, and July, and two hundred in August, 1855; that Haughton, by way of reply, wrote plaintiffs that he could procure four hundred tierces of the meat required, deliverable in lots of one hundred tierces in the months named; that plaintiffs accepted the proposition, and ordered them to be forwarded; that Haughton, shortly after, wrote plaintiffs that he had closed a purchase for them, as desired; by which it is averred that Haughton became bound to furnish the plaintiff's with meat in all respects merchantable, and of good quality. Petition further avers that Haughton did not inform plaintiffs, at the time of making the contract, who the parties were from whom he purchased. That in pursuance thereof, Haughton shipped and plaintiffs received, two hundred and one tierces of meat, of an unmerchantable quality, and defective in weight and in other particulars, and so did not comply with his contract in that respect. That as soon as plaintiffs ascertained these defects, they wrote to Haughton, notifying him that they should look to him to make good the damages, and should retain what meat had been received, under protest; that the damage should be made good, which Haughton promised and undertook to do, but neglected; and on the contrary, sent forward other meat, so defective in quality that plaintiffs absolutely refused to receive the same. Petition further avers that the difference in value between good meat of the |