Day v. Brosnan. The receiver has given security for the faithful discharge of the duty devolving upon him, and if the amount of that security is not sufficient, it can be augmented before the entry of the order substituting the receiver as the plaintiff in the action. As the receiver, when substituted, is still under the direction and control of the court where the action is pending and undetermined, it will further provide that he shall make no change of attorney in the prosecution of the appeal, unless upon application to the court, and upon showing a satisfactory cause therefor. Mr. Dupré has, under the assignments, a larger interest in the amount sought to be recovered than the judgment creditor in whose interest the receiver has been appointed, and Mr. Dupré is therefore to be left undisturbed in the discharge of his duties as attorney and counsel in conducting the cause upon appeal. With these restrictions, the application to substitute the receiver will be granted. DAY v. BROSNAN. N. Y. Common Pleas; Special Term, March, 1879. SUPPLEMENTARY PROCEEDINGS.-REQUISITES OF ORDER FOR EXAMINATION OF JUDGMENT DEBTOR. An order for the examination of a judgment debtor in supplementary proceedings, must state all the facts necessary to give the court of common pleas jurisdiction. If such facts are stated only in the affidavit on which the order is obtained, the order is irregular. Such an order on a judgment recovered in a district court, or in a justice's court, must show that a transcript of the judgment was filed and docketed with the county clerk, and when it was so filed and docketed. Motion to dismiss supplementary proceedings. Day v. Brosnan. William T. Day, as executor of Samuel S. Day, recovered judgment against one Brosnan in the third judicial district court in the city of New York, for $186.50. Transcript of the judgment was filed and docketed in the office of the clerk of the city and county of New York. An execution was issued to the sheriff, and returned unsatisfied. The plaintiff obtained an order from the court of common pleas to examine the defendant in supplementary proceedings before a referee. Defendant's counsel procures an order staying the examination before the referee, with an order to show cause from the court why the supplementary order should not be dismissed, in failing to state that the transcript of the judgment was filed and docketed with the clerk of the city and county of New York, and when the same was filed and docketed. George H. Kracht, defendant, and for the motion. W. C. Carpenter, for the plaintiff, opposed. LARREMORE, J.-The order for the examination of the judgment debtor fails to show the filing and docketing of the transcript of the judgment of the district court, in the office of the clerk of the city and county of New York, and when the same was so filed and docketed. In order that this court may acquire jurisdiction in supplementary proceedings instituted on judgments of district and justices' courts, it is necessary that all the jurisdictional facts should be stated in the order. It is not sufficient to show the jurisdictional facts in the affidavit on which the order is obtained, but the same must be shown in the order, to give this court jurisdiction. The order herein, failing to show that a transcript of the judgment was filed and docketed with the county clerk, and when the same was so filed and docketed, is irregular and defective, and the motion for dismissal must therefore be granted. Langdon v. Mayor, &c. of N. Y. LANGDON v. MAYOR, &c. OF NEW YORK. N. Y. Supreme Court, First Department; Special Term, May, 1878. DISTINCTION BETWEEN AN EXCEPTION AND A RESERVATION.-NEW YORK CITY.-DOCK DEPARTMENT.-RIGHT TO WHARF AGE.-WHARVES. In a conveyance of real estate, an exception is something taken out of that which is before granted, by which means it does not pass by the grant, but is severed from the estate granted; and a reservation is something issuing out of the thing granted, and not a part thereof. Where the Mayor, &c., of New York city by deed conveyed certain water lots in the city of New York by metes and bounds "saving and reserving nevertheless, out of the several water lots and soil under water above mentioned, so much of the same as will be necessary to make" certain streets named,-Held, 1. That this was not a reservation, but a valid exception.* 2. That there was no intention on the part of the city to part with the fee of the streets included within the limits of the described premises, although the grantee covenanted to build and maintain wharves and the streets aforesaid at his own expense, and that they should continue to be and remain public streets and highways.t Where in such a case the grantee was to have the exclusive right to the wharfage to arise from the wharves to be built and maintained by him, but there was no covenant by the city that the premises granted should remain the exterior lines of the city,-Held, that his right to collect wharfage did not lie in grant, but in covenant, and the city could not be enjoined from building wharves outside of those built by the grantee, and so rendering the latter useless. The Dock Department of the city of New York cannot interfere with the property or rights of others without purchasing or extinguishing such rights, by proceedings provided for the taking of private property for public streets or places. *See Anonymous, 2 Abb. New Cas. 56, and cases cited. + Compare Spader v. N. Y. Elevated R. R. Co., 3 Abb. New Cas. 467; Story v. The Same, Id. 479. Langdon v. Mayor, &c. of N. Y. Action to enjoin the erection of a bulkhead, and for damages. This action was brought by Walter Langdon against the Mayor, &c., of New York city, to enjoin the erection of a new bulkhead between King and Houston streets, in said city, and for damages in consequence of the obstruction of access of vessels to the old bulkhead. The facts upon which the action was based, as agreed upon by the parties, are substantially as follows: In 1810, John Jacob Astor was the owner of certain lands above and contiguous to the high-water mark of the Hudson river, between King and Leroy streets. In that year the Mayor, &c., of the city of New York conveyed to him in fee, lands under water in front of his upland, extending from the line of high-water to West street, "saving and reserving, nevertheless, out of the several water lots and soil under water, so much of the same as will be necessary to make Washington street sixty feet wide and West street seventy feet wide-the said streets to be extended and continued through the premises aforesaid, as the same shall be directed by the said parties of the first part,' and agreeably to a map or plan of the premises annexed to the deed. As condition of said grant, said Astor agreed to build West street seventy feet wide, and to maintain the same as a public street. In said grant it was also provided that said Astor, fulfilling the covenants thereof, should "at all times thereafter have, use and enjoy all and all manner of wharfage benefits and advantages, growing, accruing or arising by or from the wharf or wharves, on the west end of the premises, i. e., along the west side of West street," the bulkhead (so-called). Said Astor built West street in conformity to the grant, and it was thereafter maintained and repaired and renewed by the city, except the bulkhead, which Langdon . Mayor, &c. of N. Y. was repaired by Astor and his successors in title, who collected and had to their own use the wharfage accruing from the use of the bulkhead, as long as any wharfage accrued. The plaintiff became the owner of the rights accruing to said Astor under the grant. On April 27, 1871, pursuant to chapter 383, Laws of 1870, as amended by chapter 574, Laws of 1871, the commissioners of docks adopted a new plan for the improvement of the water front of the city, whereby the line of solid filling was fixed parallel to West street, and one hundred and seventy-five feet west of the westerly line thereof, commenced to fill in and construct a new bulkhead, on the new bulkhead line in front of the old bulkhead, and have thereby prevented access of vessels thereto, and the receipt of wharfage by the plaintiff. The title of the city to the land conveyed to Astor, and the land upon which West street is constructed, is derived as follows: 1. The land between high and lowwater mark was acquired by the corporation under sections 3 and 14 of the Dongan charter (1686), or section 37 of the Montgomerie charter of 1730 (Hoffman's Treatise, 180). 2. The land under water beyond lowwater mark to the extent of four hundred feet westerly was conveyed to the city by the commissioners of the land office, pursuant to section 15 of chapter 115, Laws of 1807 (Val. Laws, 809; Hoffman's Treatise, 189). The West street bulkhead is located within the four hundred feet grant. The new bulkhead line between Leroy and Clarkson streets is within the four hundred feet grant from Clarkson to King street it is from forty to fifty feet west of the westerly line of the four hundred feet, and on lands granted to the city by the commissioners of the land office, under the act of 1871 (2 L. 1871, p. 1242, c. 574, § 6, subd. 10). Samuel E. Lyon, for plaintiff.-I. The covenant on |