
    Torrance v. Conger, appellant.
    
      John Ganson, for appellant.
    
      Gyrenius G. Torrance, respondent in person.
   E. D. Smith, J.

This action was originally tried before a referee and an appeal taken to the general term of the eighth district. In it was involved the construction of the following covenants in a deed conveying a flouring and grist-mill. “ Together with the privilege of taking from the mill-race three hundred and seventy-five inches of water, under a thirteen feet head, at all times when there shall be so much water in said race more than shall be necessary to drive, advantageously, the grist-mill upon the above-described premises, with two run of stone, one saw-mill, as the same is now used on said race, the furnace, the carding and cloth-dressing establishment and the flouring-mill, as said furnace, carding and cloth-dressing establishment and planing-mill, as now used,” “ and also the said party of the first part covenants and agrees to and with the said party of the second part to furnish said 375 inches of water hereby conveyed in said race, so that the same may be used at all times, except at such reasonable times as may be necessarily consumed in making repairs on said dam, rebuilding the same and repairing the abutments, gates and race. It is understood that the said party of the first part is not to furnish the 375 inches of Avater in times of drought, when there is not sufficient water in Cattaraugus creek to supply the same, as hereby conveyed, but is, during such scarcity, only to furnish such as runs. ”

The referee held that under the covenant the grantor was bound to supply the quantity of 375 inches, at the head of 13 feet. The general term held that the deed conveyed a portion of water equal to 375 inches under a pressure of 13 feet head, and that the grantor was not bound to furnish this amount under any given head or vertical pressure, and ordered a re-trial. The case was re-tried, appealed to the general term, and then to the court of appeals, Avhich court was divided in opinion upon the construction of the covenants. Torrance v. Conger, 46 N. Y. 345. The case was sent back for retrial upon a question of evidence, and now comes up upon appeal from the judgment upon report of the referee at the third trial. The court held that the construction of the covenant, having already been passed upon by the general term, was not open for reconsideration.

Judgment affirmed.  