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It is scarcely necessary to cite authorities to show that the engine-house, as used, was within every definition, a nuisance, for which, as between individuals, an action would lie for damages, and for which a court of equity would afford a remedy by injunction. "See St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Fish v. Dodge, 4 Den. 311; Campbell v. Seaman, 63 N. Y. 568.

In Radcliff v. Mayor, etc., 4 N. Y. 198, a case which is often cited to sustain the doctrine that consequential injuries to private property, from the prosecution of public improvements, do not give a right of action, Judge Bronson, referring to the general rule that a man may do what he will with his own property, said: "He may not however, under color of enjoying his own, set up a nuisance which deprives another of the enjoyment of his property."

The correctness of the findings of fact, made by the court, is not questioned by the defendant. The court placed its judgment, denying relief, upon the ground that defendant was a railroad corporation, authorized by law to acquire real estate for an engine-house; that an engine-house at the point where this engine-house was erected was necessary for the operation of its road, and that in the construction and use of the engine-house and coal-bins, it had exercised all practicable care. The findings of law from these premises were, that "whatever damage has resulted to the plaintiff, or her property by reason of defendant's use and occupation of its engine-house and coal-bins, is damnum absque injuria.

It is manifest, that if this judgment can stand, a most serious injury is inflicted by the defendant upon the plaintiff, for which she has no redress. Her premises are subjected to a burden in the nature of a servitude in favor of the defendant, which seriously impairs the value and enjoyment of her property. The principle upon which the court below proceeded was that what the Legislature has authorized the defendant to do can neither be a public nor private wrong; in other words, the Legislature has authorized the maintenance of this nuisance by the defendant, and the plaintiff must bear the consequence. The court below, in denying any relief to the plaintiff, of course assumed that the legislative authority, and the act of the defendant thereunder, resulting in flooding the plaintiff's premises with soot, smoke and noxious gases, was not a taking of the plaintiff's property within the Constitution.

We place our judgment in this case on the ground that the Legislature has not authorized the wrong of which the plaintiff complains, and it is therefore unnecessary to determine whether the Legislature could have authorized it consistently with the principles of the Constitution for the security of private rights, without providing for compensation. The legislative authority, under which the defendant seeks to justify the maintenance of the nuisance in question is found in section 6, chapter 143 of the Laws of 1848, entitled "An act to amend an act entitled 'An act relating to the New York and Harlem Railroad Company,' passed May 7, 1840." That section authorizes the defendant, the New York and New Haven Railroad Company, to enter upon and run its cars by the power or force of steam, animals or any mechanical power, over the road of the New York and Harlem Railroad Company, from the point of junction of the two roads in West. chester county, to and into the city of New York "upon such terms and to such point as has been or may hereafter be agreed upon by and between said companies." The defendant is a Connecticut corporation. Its road extends from New Haven, in that State, to a point on the Harlem railroad, in Westchester county in this State. It constructed the part of its

road in this State, from the State line to its junction with the Harlem railroad at Williams Bridge, under the authority of the act of the Legislature, chapter 195 of the Laws of 1846. When the act of 1848 was passed, the two companies had entered into an agreement for the use by the defendant, for its cars, of the tracks of the Harlem railroad from Williams Bridge to the city of New York, in which, among other things, the New York and Harlem Railroad Company agree to furnish the defendant corporation room for their engine-house at Thirty-third and Forty-second streets, not to exexceed one-half of the real estate of the former company at that place, for which the defendant was to pay as provided in the agreement. It is claimed that the Legislature has authorized the erection and use of the defendant's structure on Forty-sixth street. The only express authority conferred by the Legislature is found in the sixth section of the act of 1848, above referred to. The authority conferred by that section, on the face of it, is simply an authority to the defendant to run their cars on the Harlem railroad, to the city of New York, upon such terms as may be agreed upon between the two companies. The most obvious purpose of this section was to confer corporate capacity upon the defendant to do that which, without legislative authority, it could not do, viz., operate its road beyond the terminus fixed in the act of 1846, from Williams Bridge to the city of New York. But even this authority was not absolute. It could be exercised only in case, and upon the terms of an agreement be tween the two companies, for the use by the defendant of the tracks of the Harlem railroad. Upon this slender authority is based the claim of the defendant that the Legislature has authorized the injury in question. The argument in brief is, the Legislature has authorized the defendant to run its trains into the city of New York, over the Harlem road; it cannot do this without an engine-house conveniently located: the power to acquire lands for and to construct an eugine-house is therefore incidental to the power expressly given; the company has exercised due care in its location, construction and maintenance; the aunoyances suffered by the plaintiff are a necessary consequence of its use, and therefore the principle applies "that an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow." We shall pass without examination the question whether the authority given to the defendant to purchase land for an engine-house is implied in the power conferred in the sixth section of the act of 1848, to enter into an agreement with the Harlem railroad for the use of the tracks of that road, and to run its cars thereon to the city of New York.

For the purpose of this case we shall assume that the general power conferred included the latter power as incident. It is no doubt a settled principle of the law that many things may be done by the owner of land, causing consequential damages to his neighbor, for which the law affords no remedy. The cases embraced within this rule are those either where what was done was in the lawful and reasonable use by an owner of land of his own property, or where the damages suffered, although by possibility attributable to the wrongful act of another, were too remote therefrom to justify the court in treating the one as the sequence of the other. The case before us belongs to neither of these categories. The defendant's enginehouse, as maintained, was a palpable nuisance, causing special injury to the plaintiff, for which, by the general rule of the common law, she has a right of action. The defendant however does not rely for its justification upon the ordinary rule governing the rights of adjoining proprietors, but as we have said,

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rests upon the claim that the Legislature has authorized the acts of which the plaintiff complains, and has therefore made that lawful which otherwise might be unlawful, and has taken away any remedy which the plaintiff otherwise might have had.

at the time of breaking up of the ice of the creek in the spring. It was shown that ice and water flowed and was forced upon the plaintiff's premises at the breaking up of the creek in 1799, and again in 1813,and on three occasions after the road was built, between 1835 and 1866. There was some evidence tending to show that the flooding in question was occasioned by the embankment and the want of sufficient apertures for the passage of the water. The plaintiff recovered a verdict and the judgment was reversed by this court on the ground of the rejection of evidence offered by the defendant, bearing upon the point whether the embankment and bridge were carefully and skillfully constructed.

It is undoubtedly true that there are cases in which
the Legislature in the public interest may authorize
and legalize the doing of acts resulting in consequen-
tial injury to private property, without providing
compensation, and as to which the legislative sanction
may be pleaded in bar of any claim for indemnity.
Indeed, such is the transcendent power of Parliament
that it is the settled doctrine of the English law that
no court can treat that as a public or private wrong
which Parliament has authorized, and consequently,
as stated by Blackburn, J., in Hammersmith, etc., R.
Co. v. Brand, 4 H. L. Cas. (Eng. & 1. App.) 171, "the
person who has sustained a loss by the doing of that
act is without remedy, unless in so far as the Legis-jury, it would be liable irrespective of negligence, but
lature has thought it proper to provide for compensa-
tion."

The legislative power in this country is subject to restrictions, but nevertheless, private property is frequently subjected to injury from the execution of public powers conferred by statute, for which there is no redress. The case of consequential injuries resulting from street improvements authorized by the Legisla ture is a familiar example.

In Radcliffe v. Mayor, etc., supra, which is a leading case, the corporation of Brooklyn laid out, opened and graded a street, under an authority contained in the charter, and the court held that in the absence of negligence the city was not liable for consequential damages suffered by the plaintiff from the sliding down of his land, caused by the cutting down of the street, and thereby removing the lateral support. The court in its opinion declared that it had never been considered that consequential damages to private property, resulting from the opening and improving streets or highways, or other work of a public nature, could be recovered. The case has been frequently followed, and its authority completely established by repeated decisions in this State. It is an application of a principle well settled that private interests must yield to the public welfare, but the case carries to the utmost limit the right of the Legislature, for public reasons, to interfere with private property to the injury of the owner, without making compensation.

The case of Bellinger v. N. Y. C. R. Co., 23 N. Y. 42, is another case frequently cited to support the claim that a use of property authorized by the Legislature cannot, in the absence of negligence, constitute an actionable injury. It was an action brought for the flooding of the plaintiff's land on the Mohawk flats, caused, as was charged, by the turning of the water of the West Canada creek out of its natural course by an embankment constructed for the use of the railroad over the lowlands west of the creek. The Utica and Schenectady Railroad Company-to whose rights and obligations the defendant succeeded-was created a corporation by chapter 294 of the Laws of 1833, with power to construct a railroad between Schenectady and Utica, "on the north side of the Mohawk river, as far as the village of Herkimer." The charter authorized the directors to locate the line where it would be most advantageous for the road and file a certificate of location, and the charter declared that the line so located should be deemed the line on which the road should be built. The company located its line on the creek at the point in question. It constructed a bridge across the creek, five hundred feet long, and also left a water-way eighty-two feet wide in the embankment, for the passage of water in time of flood. The freshet which flooded the plaintiff's land occurred

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It was claimed by the counsel for the plaintiff that this was an immaterial issue. The court, in its opinion, conceded that according to the general rule of law, if the structure of the defendant caused the in

held that as the company was authorized by statute to construct its road across the creek at the point where it was located, it was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the statute authority.

The case of Bellinger v. N. Y. C. R. Co. is perhaps the strongest case to be found in our reports, of the application of the doctrine that a statutory authority justifies acts which otherwise would give a right of action. But it will be noticed that it was a case where the line of the road was fixed by the charter. It was necessary, in constructing the road on that line, to cross the creek on a bridge, and the lowlands upon an embankment. The flooding of the plaintiff's premises was an unusual occurrence, and the evidence was very slight that it was caused by the structures of the defendant. It was under these circumstances that the court reached its conclusion that the damages suffered by the plaintiff were not recoverable in the absence of negligence on the part of the defendant in the construction of the road.

But the statutory sancti. n which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be presumed from a general grant of authority, that the Legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining their consent. This construction of statutory powers applies with peculiar force to grants of corporate powers to private corporations, which are set up as a justification for acts to the detriment of private property.

In the case of Gardner v. Trustees of Village of Newburgh, 2 Johns. Ch. 162, the chancellor granted an injunction to prevent the village of Newburgh from diverting the water of a stream, under an act of the Legislature which authorized in general terms the taking of water for the use of the village, and which provided for compensation to the owner of land on which the spring or source of supply was situated, but made no provision for compensation to the owner of land below, through which the stream passed. When this case arose, there was no provision in the Constitution of the State prohibiting the taking private property for public use without compensation. But the chancellor held that the making of compensation was an indispensable attendant of the exercise of the rub! ic right, and what is more material to our present pur

pose, he declared that the Legislature could not have intended, by the general powers conferred, to violate or interfere with private rights.

The same principle is stated with unusual force of language by Chief Justice Marshall in U. S. v. Fisher, 2 Crauch, 390. He says: "Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects."

What may be a sufficient statutory sanction for acts which injuriously affect general public rights or individual property is illustrated by cases which hold that an authority to construct a railroad and use locomotives thereon takes away any remedy by indictment or private action, for such consequences as necessarily result from the use of locomotives, such as noise, vibration, etc., although no compensation is provided. Rex v. Pease, 4 Barn. & Adol. 30; Vaughan v. Taff Vale Co., 5 Hurlst. & Norm. 679; Hammersmith R. Co. v. Brand, supra.

There are two recent English cases which apply with great distinctness the principle that a statutory sanction cannot be pleaded in justification of acts which, by the general rules of law, constitute a nuisance to private property, unless they are expressly authorized by the statute under which the justification is made, or by the plainest or most necessary implication from the powers expressly conferred. These are the cases of Hill v. Managers of Metropolitan Asylum District, 4 Q. B. Div. 433; S. C., on appeal, 6 App. Cas. 193, and Truman v. London & Brighton Ry. Co., 25 Ch. Div. 423.

The case of Hill v. Managers of Metropolitan Asylum District was an action for damages and for an injunction to restrain the use of a small-pox hospital, established by the defendants under direction of the poor law board, under authority of the metropolitan poor act of 1867. The act of Parliament authorized the erection of asylums for sick, infirm and insane paupers in the Metropolitan asylum district in London, to be designated by the poor law board, and authorized the purchase, leasing or filling up of buildings for the purpose; and the act referred to small-pox patients as among the class of persons to be provided for. The managers, under the direction of the poor law board, erected a hospital for small-pox patients near premises of the plaintiff. The jury found that the hospital was a nuisance, occasioning damage to the plaintiff. The court, on the hearing, granted an injunction, and the case was appealed to the House of Lords, where it received great consideration, and the judgment was affirmed. The defendants justified under the act of Parliament. The judges pronouncing opinions conceded, that according to the settled doctrine of the English law, if Parliament had expressly authorized the construction of the hospital upon the very site where it was located, its use in the manner and for the purpose contemplated could not be restrained by injunction, except in so far as it was negligent, although such use should constitute a nuisance at common law, and no compensation would be due in respect of injury to private rights unless provided for in the act. But it was held that the statutory sanction sufficient to justify the creation of a nuisance must be express; that the particular land or site for the hospital must have been defined in the act, or as held by one of the judges, it must appear that the act, while defining certain general limits, could not be complied with at all without creating a nuisance, and its performance was made imperative. In the House of Lords opinions were pronounced by Lord Chancellor Selborne, Lord Blackburn and Lord Watson, all

concurring in substantially the same view. Lord Watson said: "If the order of the Legislature can be implemented without nuisance they cannot, in my opinion, plead the protection of the statute; and on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to show that the Legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the Legisla ture intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for that purpose."

The case of Truman v. London & Brighton Ry. Co. was also an action for damages and for an injunction to restrain a nuisance created by the maintenance, by the defendant, of cattle-yards at its station at East Cryden. The defendant was authorized by its charter to purchase lands in such places as it should deem eligible for the purpose of providing station yards for loading and unloading cattle, etc. It purchased lands for that purpose adjoining its East Cryden station, but near the dwelling of the plaintiff. The court found that the company acted bona fide in selecting the site, and conducted the business with all practicable care, but also found that it created a nuisance to the plaintiff, and granted the injunction. The case arose after the decision in Hill v. Managers of Metropolitan Asylum District, and was decided upon the principles there laid down. It is manifest that these cases, if well decided, completely answer the defense in the present case. See also Queen v. Bradford Nav. Co., 6 Best & Smith, 631; Attorney-General v. Colney Hatch Lunatic Asylum, L. R., 4 Ch. App. 147; Hooker v. N. H. & N. R. Co., 14 Conn. 146; S. C., 15 id. 312. The authority conferred upon the defendant by the sixth section of the act of 1848, to run its trains over the Harlem railroad, was not, however broadly construed, a legislative sanction to commit a nuisance upon private property. The authority expressly given was not absolute, but conditional upon obtaining the consent of the Harlem railroad. It could not be known by the Legislature that the building of an engine-house would necessarily interfere with private rights. However necessary it may be for the defendant that its engine-house should be located where it is, this constitutes no justification for the injury suf fered by the plaintiff, nor is it any answer to the action, that it exercises all practicable care in its manage ment. It may have the right, which it claims, to acquire lands by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Public policy indeed requires that in adjusting the mutual relations between railroad companies and individuals, courts should not stand upon the assertion of extreme rights on either side, but in this case the facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury.

The case of Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, fully supports the conclusion we have reached in the case, and the able opin ion of Mr. Justice Field in that case vindicates the right of private property to protection against substantial invasions under color of corporate franchises. The judgment should be reversed and a new trial ordered.

All concur.
Judgment reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-ORDER AFFIRMING JUDGMENT ON CERTIORARI - OFFICE AND OFFICER" DETAILED FIREMAN" -REMOVAL.-(1) The order of the General Term in this case is appealable. It affirms a judgment rendered at Special Term on certiorari, which was in the following words. "It is ordered and adjudged that the respondents have judgment on the return, and that their action in removing relator from said department of fire and buildings is in every respect affirmed, and that said writ of certiorari be quashed with $10 costs." An order which simply quashes a commonlaw certiorari has often been held not to be appealable to this court, because the issuing of the writ rests in the discretion of the court, and consequently it can in its discretion recall or quash the writ without passing upon the validity of the proceedings sought to be reviewed. The case of People v. Stilwell, 19 N. Y. 531, fell within that principle. There was no hearing upon the return, and no adjudication upon the merits, but the decision was rendered on a motion to quash the writ, which motion was granted. In the opinion, it is true, the validity of the proceedings sought to be reviewed was considered, and the court held that the writ had been improvidently issued. But the order simply quashed the writ and did not adjudicate upon the validity of the proceeding. The cases of People, ex rel. Davis, v. Hill, 53 N. Y. 547; People, ex rel. Waldman, v. Board of Police Com'rs, 82 id. 506; and People, ex rel. Hamman, v. Board of Tax Com'rs, 85 id. 655, were of the same description. But in the case of People v. Board of Assessors, 39 id. 88, although the order concluded by directing that the writ be quashed, that conclusion was preceded, as in the present case, by an adjudication that the proceeding brought up by the writ was valid and free from error, and the judgment quashing the writ was not rendered in the exercise of the discretion of the court, and on the ground that the proceeding ought not to be reviewed by the writ, but on the ground that the allegations of error were not sustained. This decision was held to present a question of law reviewable in this court. To the same effect was the case of People, ex rel. Allen, v. Knowles, 47 N. Y. 415, 420. (2) We must therefore consider the question of the validity of the proceeding of the board removing the relator. If he was legally appointed a member of the fire department, it is not disputed that his removal was illegal, inasmuch as the power of the commissiouers to remove a member of the department can only be exercised on conviction of the member of some of the offenses specified in section 14 of title 13 of the charter of the city of Brooklyn (Laws of 1873, ch. 863), and in the case of the relator there was no such conviction. He was removed by a simple resolution without trial or notice, or even any charge having been made against him. The only ground upon which the board claim that their action should be sustained is that his appointment was invalid for the reason that he was appointed as "a detailed fireman," and as no such office existed he was dismissed by the bod. That position was sustained by the General Term in their opinion, and they held that consequently the removal was regular and proper. We think that the case of Pennie v. City of Brooklyn, decided by the City Court of Brooklyn, and affirmed in this court, determines the question adversely to the respondents. The appointment of Pennie was precisely the same as that of the present relator. Both were appointed by resolution, "detailed" firemen, and both were removed by resolution, without other cause than the alleged invalidity of such an appointment. Pennie sued out a writ of certiorari, and the opinion of the General Term of the Second Department, a copy of which is among the appeal papers in

the case of Pennie v. City of Brooklyn, on file with the clerk of this court (vol. 62) states "the relator Henry Pennie, was removed by resolution because he was appointed a detailed fireman, a position not known to the law. This is quite frivolous; if he were a fireman his office was known to the law, and detailed here means nothing more than selected." The proceedings were thereupon reserved, and Pennie afterward brought an action in the City Court of Brooklyn, for his salary during the time of his exclusion. The same point was urged on the trial of that action, and a motion for a nonsuit was made on the ground as stated in the case on appeal, “that the position of detailed fireman is a position unknown to the law, and that the resolution of the commissioners removing the plaintiff is effectual." The motion was denied, and exception taken, and a verdict for the plaintiff was directed, and on appeal to this court the judgment entered on the verdict was affirmed. Pennie v. City of Brooklyn, 97 N. Y. 654. The cases are identical, and we see no ground upon which the proceedings of the board can be sustained. People v. Com'rs of Fire Department. Opinion by Rapallo, J.

CONSTITUTIONAL LAW-APPEALS FROM NEW YORK CITY COURT-ACT 1866, CH. 408.-The act of 1866 (ch. 408), in so far as it permits an appeal from the City Court direct to the Court of Appeals without requiring that they first be subjected to review by the Court of Common Pleas is unconstitutional. Oct. 26, 1886. Hutkoff v. Demorest. Opinion by Rapallo, J.

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COSTS ALLOWANCES IN DIVORCE CASES.-In an action for an absolute divorce, the referee appointed to try the issues reported in favor of the husband and against the wife, and a motion was made by the wife before judgment in the action for an allowance for in the action, and an allowance of $3,500 was made for counsel fees and expenses incurred and to be incurred that purpose. Held, that the order was unauthorized, since such allowance could not be said to be necessary to enable the wife to defend an action which she had defended without the aid of such allowance. The authority to make such an allowance during the pendency of the action rests entirely upon the statute (Code, § 1769), which provides that the court may, from time to time during the pendency of an action, make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action." The purpose of the statute is to furnish the wife means to carry on her action, or to defend the same during the pendency thereof. The allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made or solely to pay expenses already incurred. There is ample power in the court to make allowance, from time to time, to enable a wife to carry on her defense, and when she needs money for that purpose she must apply for it. But if she has succeeded in making her defense from her own means, or upon her own credit, she cannot, before judgment, while the action is pending, have an order compelling her husband to pay such expenses; and there is no statutory authority in the court to make such an order,and thus to compel him to pay her debts. We confine our decision to the precise facts of this case as they appear in the record. We have no doubt that an allowance to a wife during the pendency of the action for some past expense might be authorized if it were shown that its payment was necessary to enable her to further carry on the action, or her defense thereto. Oct. 29, 1886. Beudleston v. Beadleston. Opinion by Earl, J.

CRIMINAL LAW-EVIDENCE-CALLING ATTENTION TO PARTICULAR FACTS-SPECIFIC ACTS OF VIOLENCE.—(1

On a criminal trial the court may in its discretion allow the district attorney to call the attention of witnesses for the prosecution to particular facts after they, without interruption, have gone through the story of the incidents relating to a homicide. (2) On a trial for murder the defense offered to show that deceased treated his domestic animals with cruelty. Held, that the evidence was properly excluded. Although after evidence has been given tending to show that a homicide was committed in self-defense, proof of the general reputation of the deceased for quarrelsomeness and violence may be given, the evidence must be confined to proof of general reputation, and evidence of specific acts of violence toward third persons is inadmissible. People v. Lamb, 2 Keyes, 371; Eggler v. People, 56 N. Y. 643; Thomas v. People, 67 id. 218. On a trial for murder, evidence that deceased robbed his father as he lay in his coffin of his grave clothes, and wore them at his funeral, is properly excluded as irrelevant and immaterial. Oct. 26, 1886. People v. Druse. Opinion by Andrews, J.

OLEOMARGARINE-CHARGE TO JURY.-Upon the trial of an indictment charging the defendant with having violated section 7 of chapter 183, Laws of 1885, the court submitted to the jury the bare question

whether the defendant had sold an article known as

oleomargarine, an article not made from pure unadulterated milk or cream, and charged that if he had he was guilty under the law. Held, error; that the defendant could only be convicted of selling an article manufactured in imitation or semblance of butter, and that it was error to ignore that fact in the instructions to the juay. Oct. 29, 1886. People v. Arensberg. Opinion by Finch, J.

EXECUTOR AS WITNESS-CODE, § 829.-One H. was executor under the will of John Wilson, deceased, and also a legatee therein. He presented the will for probate and offered himself as a witness to prove personal conversations and transactions had by him with the testator at the time of its preparation in relation to its contents and execution. It was objected that he was incompetent under section 829 of the Code of Civil Procedure to testify to such transactions and conversations both as a party to the proceeding and also by reason of his interest in the event. The proponent therefore put in evidence a release to the administrator of his interest as legatee under the will. The objection was thereupon overruled by the surrogate, and this is now alleged as error. We think the questions presented have been settled by authority against the contention of the appellant. The interest which the witness might have taken as legatee under the will was effectually discharged by the release. It was an instrument under seal importing a consideration, and its effect was to swell the residuum of the estate and increase the amount to be distributed under the provisions of the will. The residuary legatee took nothing thereby in the right of the legatee, and did in no sense succeed to the sum derived from, through or under any right of the legatee. Neither was the witness incompetent by reason of being a party to the proceeding, or as being interested by way of commissions as executor. It was held in the case of Children's Aid Society v. Loveridge, 70 N. Y. 387, that an executor was not such a party to the proceedings to prove a will as would preclude him from testifying to personal transactions with the deceased testator within the spirit and meaning of section 399 of the Code of Procedure. Neither did his right to compensation as executor render him incompetent by reason of interest to testify to such transactions. This ruling was approved and followed in Rugg, 83 N. Y. 592. The same question was decided in a similar manner in Reeve v. Crosby, 3 Redf. 74. In McDonough v. Lough

lin, 20 Barb. 238, the proposed witness was an executor and trustee under the will as well as a subscribing witness. The question was whether the execution of the will could be proved by him without working a forfeiture of his appointment as executor and the devise to him as trustee under 2 Rev. Stat. 65, $50, avoiding any beneficial devise, legacy, interest or appointment to subscribing witnesses. It was held that it could, inasmuch as the devise to him was in trust, he taking no beneficial interest therein, and his appointment as executor was fiduciary and not for his own benefit. It was said that the commissions were given by statute as compensation for services, and did not accrue to the executor as a gratuity by force of the will. The claim and appointment were not beneficial within the meaning of the statute. It is said in the same case that the doctrine of the English courts is to the same effect, citing 1 Mod. 107; Lowe v. Jolliffe, 1 W. Blackst. 365; Holt v. Tyrrell, 1 Barnard (K. B.), 12; Bettison v. Bromley, 12 East, 250. We find no cases in this State conflicting with the principles laid down in those referred to. In Lane v. Lane, 95 N. Y. 494, the proposed witness was not only an executrix but also a legatee, and it was properly held she not having released her claim as legatee, that she was an interested party. Oct. 26, 1886. Matter of Will of Wilson. Opinion by Ruger, C. J.

EXECUTOR AND ADMINISTRATOR-LIABILITY FOR ACTS OF CO-EXECUTOR.-Where the funds of an estate were originally in the hands of one of the executors, or paid to him in the due course of administration, and there is nothing to excite suspicion as to the integrity or responsibility of such trustee, or to create a belief that the funds have been improperly used or invested, his co-executor or co-trustee is not chargeable with his wrongful use of the fund. Where however an executor knowingly assents to the misapplication of the trust funds by his co-executor, or negligently suffers him to receive and waste the estate when he has the means of preventing it by proper care, he becomes liable for a resulting loss. Croft v. Williams, 88 N. Y. 384; McCabe v. Fowler, 84 id. 314. The general rule as to the liability of one executor or trustee for the acts of his co-executor or trustee is laid down in Williams Executors (6th Am. ed. 1820), 9, as follows: "A devastavit by one of two executors shall not charge his companion, provided he has not intentionally or otherwise contributed to it, for the testator, having misplaced his confidence in one, shall not operate to the prejudice of the other." For the devastavit of an executor or trustee, his co-executor or cotrustee is not liable unless it appears that he had knowledge of or assented to the acts done, or had notice which should have excited his suspicion and put him on inquiry. This rule is fully sustained by the authorities. Sutherland v. Brush, 7 Johns. Ch. 17; Sherman v. Parish, 53 N. Y. 483; Adair v. Brimmer, 74 id. 539; Peter v. Beverly, 10 Pet. 532; Ormiston v. Olcott, 84 N. Y. 339; McCabe v. Fowler, 13 id. 314; McKim v. Aulback, 130 Mass. 481; Croft v. Willianis, 88 N. Y. 384. Oct. 12, 1886. Wilmerding v. McKesson. Opinion by Miller, J.

PRACTICE -MAKING CASE -FILING EXCEPTIONSCODE, 998-RULE 32 SUP. CT.-This was an equitable action to remove the cloud of a mortgage from certain property of the plaintiff situated in Brooklyn. The action was tried at a Special Term of the Supreme Court, and judgment was ordered in favor of the defendant, which was entered on the 28th day of April, 1886. On the same day copies of the judgment, and the order dismissing the complaint, and notice of the entry of each, were served upon the plaintiff's attor ney. On the 28th day of May the plaintiff served upon defendant's attorney a notice of appeal from the judg

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