#### Abel C. Benedict *et al.,*App’lts, *v.*The Seventh Ward Railway Company of Syracuse, Resp’t.

*(Supreme Court, General Term, Fourth Department,*

*Filed January, 1889.)*

Pleading—Evidence must follow and conform to allegations in a PLEADING.

In an action "brought to restrain defendant from laying or operating a railway track in a street upon which the plaintiff's lands abut, upon the ground that the defendant had not obtained the consent of one-half the owners in value of the property bounded by the street, nor of the general term of the supreme court, as required by section 18 of article 3 of the Constitution, and the street surface railroad act, the trial court pr. perly held that the plaintiffs were not entitled to recover upon the the ry that defendant was a trespasser upon the land, which they owned, if any, in the public street. *V.dl*v. *Long Island R. R. Co.,*8 N. *Y.*State Rep., TOO, followed.

Appeal from judgment entered in Onondaga county, after a trial at special term, dismissing the complaint, with costs.

*Waters & McLennan,*for app’lts; *Knapp, Nottingham & Andrews,*for resp’t.

*170Follett, J.

Appeal from a judgment entered on the decision of a special term, dismissing the complaint, with costs, which is heard in this court on a case containing all of the evidence.

Montgomery street extends north and south in the city of Syracuse, and is 100 feet wide. Since 1881 the plaintiffs have owned a lot on the west side of the street,' which is fifty feet wide on the street and 132 feet deep, on which there is a dwelling, in which they have resided since 1881. In 1886 the defendant was incorporated pursuant to chapter 252 of the Laws of 1884 (the street surface railroad act), and laid a single track in this street, the rails being equidistant from the center line of the street. Since the track was laid it has been used by the defendant for a sti cet railroad, operated with horses. The plaintiffs did not consent, pursuant to the act referred to, that the road might be constructed in the street, nor did they consent that the track might be laid in the street in front of their lot. Before the track was laid, this action was brought to restrain the defendant from laying or operating a track *in this street,*“upon which the plaintiffs’ lands *abut,”*upon the ground that defendant had not obtained consent for the construction of the road from the owners of one-half in value of the property bounded on the street, nor of the general term of the supreme court, as required by section 18 of article 3 of the Constitution, and the street surface railroad act, but not on the ground that the plaintiffs owned the land in front of their lot and west of the center line of the street, subject to the right of the public to use it for a street, and that plaintiffs had not consented to its use by the defendant.

The plaintiffs made no attempt to prove that the consent required by the constitution and the street railroad act bad not been obtained, but sought to maintain the action by offering to prove that the center line of the street and the plaintiffs’ east line coincided, and that the west rails of defendant’s track were on their land without their consent. The court held that the only cause of action alleged in the complaint rested solely on the theory that the constitutional and statutory consents had not been obtained. We think an inspection of the complaint justifies this ruling. The court held that the plaintiffs were not entitled to recover upon the theory that defendant was a trespasser upon the land which they owned, if any, in the public street._ In this the court committed no error. *Vail*v. *Long Island R. R. Co.,*106 N. Y., 283; 8 N. Y. State Rep., 700.

The ancient rule, that the evidence must follow and conform to the allegations in the pleadings and tend to establish the cause of action or defense alleged, has not been *171abolished by the Code. *Tracy*v. *Ames,*4 Lans., 500; *Southwick*v. *First National Bank of Memphis,*84 N. Y., 420; Pom. on Rem. and R., § 553 *et seq.*

The judgment is affirmed, with costs.

Martin and Kennedy, JJ., concur.

Judgment affirmed, with costs.