
    JAMES FORSYTH, Appellant, v. DANIEL HARTNETT, Respondent.
    
      Besw'wtion of right of way in lease— action for use and occupation.
    
    Motion for a new trial on exceptions ordered to be beard in the first instance at tbe General Term, after a nonsuit ordered by tbe court.
    Tbe plaintiff was the owner of a lot fronting on tbe Hudson river. He leased it verbally to White & Oo., “ reserving tbe right of ferry-way, and of landing of ferry passengers crossing over tbe lot.” There was no “ particular location as to where tbe passengers should go.” During this lease tbe defendant, running a ferry, landed at certain times on this lot, and on one occasion promised to pay tbe plaintiff for its use. Tbe plaintiff now sues for use and occupation.
    Tbe court at General Term said: “ Taking tbe language of tbe plaintiff himself, it cannot be said that any part of tbe lot was excepted from tbe lease to White & Oo. Tbe plaintiff expressly says that there was no particular location. White & Oo. were tbe sole lessees of tbe lot. Tbe plaintiff now insists that bis claim is for tbe use and occupation of tbe sbp or landing, and a way to and from tbe same across tbe lot. * * * Rut tbe evidence seems to show that all which tbe plaintiff reserved was a right to use this ferry way; and that not exclusively. * * * If White & Oo. were tbe lessees, and if all which tbe plaintiff bad was tbe right to use tbe ferryway, an action for use and occupation could not be maintained by him. There was no land which tbe defendant occupied.
    So, too, in this same view, tbe defendant’s promise to pay was without consideration. Tbe plaintiff parted with nothing, and it does not appear that bis consent to tbe defendant’s landing at this place was of any value. Hnless tbe plaintiff bad tbe exclusive right then, tbe consent to tbe defendant’s landing should have come from White & Oo. in order to give it any validity.”
    
      George A. Mosher, for tbe appellant. Edgar L. Eiorsman, for tbe respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Rockes and Roardman, JJ.

Motion for new trial denied, and judgment ordered for defendant with costs.  