Opinion of the Court, per MILLER, J.

not well control their discretion or exercise the power conferred in their place and stead or of the survivors or survivor of either of them. If they refuse to execute it, or the power remains unexecuted, it is not apparant how the court could make a selection, from the extensive range of societies referred to, of those that should receive the bequest or of the proportion in which it should be divided. Neither could the court select individuals to perform a duty devolving upon the trustees, who are selected no doubt by reason of personal confidence in their judgment and their capacity for the task imposed.

Another difficulty presents itself as an obstacle in carrying out the trust in question. The beneficiaries referred to, consisting of every corporation within two States of the character named in the will, would be almost innumerable and none of them could claim that any specific portion of the bequest belonged to them. Until selected by the trustees they would have no such interest as would give them a standing to compel an enforcement of the bequest. It is a well-settled It is a well-settled and established rule that where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the representative of the donor must prevail over the charity. (Williams v. Williams, 8 N. Y. 526.) Within the rule stated it is quite obvious that insuperable obstacles exist which prevent a distribution of the fund intended to be created by the testator's will, and that by reason of a want of precision and certainty in the bequest made and the difficulty in the selection of those who would be entitled to be benefited thereby, it cannot be carried into effect. No case in this State goes so far as to hold that such a bequest is valid and effectual and capable of being executed within the well established rules of law which are applicable to the doctrine of charitable uses and trusts. While the courts have gone very far in sustaining bequests for charitable and educational purposes and in upholding the proposition that a charitable gift, definite in its object and purpose, and made to a definite trustee who is to receive the fund and apply it in the manner specified, is to be maintained although it would be void by the general rules of law because the particular objects of the SICKELS VOL. L.

11

Opinion of the Court, per MILLER, J.

gift or the persons to be benefited by it are uncertain, yet none of the authorities sustain the rule that, where the bequest embraces unknown beneficiaries to an unlimited extent so as to render it almost impossible to ascertain their number or character, and where no restriction as to the amount to be allowed to any of them is fixed or determined, such a bequest can be carried into effect.

The counsel for the respondents relies upon the case of Power v. Cassidy (79 N. Y. 602; 35 Am. Rep. 550) as authority for the doctrine that the bequest here made can be upheld. In that case the testator bequeathed to his executors the balance of his residuary estate, "to be divided by them among such Roman Catholic charities, institutions, schools or churches, in the city of New York, as a majority of my executrix and executors shall decide, and in such proportion as they may think proper," and it was held that the bequest could be enforced. A distinction exists between the case cited and the one at bar; the decision in that case is based somewhat on the fact that the trusts were of such a nature that a court of equity could direct their execution. The class of beneficiaries was specially designated and confined to the limits of a single city and to a single religious denomination, so that each one could readily be ascertained and each had an inherent right to apply. to the court to sustain and enforce the bequest made. Here no class is designated; and as we have already intimated, if a court of equity should be called upon, or assume to take upon itself the responsibility of carrying into effect the bequest of the testator, it would be obliged to bestow upon every charitable and educational institution within the two States named a portion of the fund in question. This would be a matter of great difficulty if not impracticability, and would inevitably lead to serious embarrassment in the discharge of the duty of disposing of the fund in question. In such a contingency it would seem to be reasonable that the fund should be equally divided among all the institutions named, and thus the right of selec tion which was intrusted to the judgment, good sense and kindly feelings of the executors as a matter of personal con

Statement of case.

fidence would be of no avail. For the reasons we have stated the case cited differs in many respects from the one under consideration, and it would be extending the authority of that case beyond what was intended or what it actually embraced to adjudicate that it covers and includes the bequests which are now the subject of consideration.

The examination which we have given to the question raised leads to the conclusion that the court below was in error, for the reasons stated, in deciding that the tenth clause of the will was valid and effectual.

The result at which we have arrived renders it unimportant to discuss some other objections which are urged against the validity of said tenth clause of the will.

It follows from the discussion had that the judgment of the Special and that of the General Term should be reversed, and, inasmuch as the facts cannot be changed upon a new trial, the decree of the court below should be modified by directing that the tenth paragraph is void and that the bequest be paid to the defendant John B. Thompson as residuary legatee named in the testator's will. Costs of both parties to this action should be paid out of the estate.

All concur.

Judgment accordingly.

MARTIN CAIN, as Administrator, etc., Appellant, v. THE CITY

OF SYRACUSE, Respondent.

By defendant's charter (§ 4, title 4, chap. 63, Laws of 1857) its common council have power to pass ordinances for the raising or demolishing of buildings which, by reason of fire, "may become dangerous." Held, that the power conferred was simply one of local legislation, and the failure to exercise it did not make the city liable for injuries caused by the falling of the wall of a building which had become dangerous by reason of a fire.

The charter ($ 5, title 4) also gave to the common council power to compel, by resolution, "the owners or occupants of any wall or building within the city, which may be in a ruinous or unsafe condition, to render the same safe, or to take down or remove the same;" also "to require the

Statement of case.

summary removal or abatement of all nuisances;" a penalty was also imposed for the violation of any such resolution. The wall did not front upon the street, but was upon the line between the lot on which the building stood and the adjoining lot. Held, that, assuming the common council had authority to pass a specific resolution in regard to this wall, at least in the absence of evidence that that body had notice of its dangerous character, or that its appearance clearly indicated such was its character, the city was not liable for an omission to pass such a resolution.

Kiley v. City of Kansas (69 Mo. 102), Parker v. Mayor, etc., of Macon (39 Ga. 725), People v. Corporation of Albany (11 Wend. 539), Jones v. New Haven (34 Conn. 1), Norristown v. Moyer (67 Penn. St. 356), distinguished.

(Argued January 23, 1884; decided February 26, 1884.)

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made January 25, 1883, which affirmed a judgment in favor of defendant, entered upon an order directing a dismissal of the complaint on trial. (Reported below, 29 Hun, 105.)

This action was brought by plaintiff, as administrator of the estate of Patrick Cain, to recover damages for the death of said intestate, which was alleged to have been caused by defendant's negligence.

In January, 1882, a building situate on Genesee street, in the city of Syracuse, was destroyed by fire; the eastern wall, which ran back from said street one hundred and sixty feet, was left standing; the joists, timbers, and all the supports to the wall were burned; it became sprung and gradually bulged toward the east. About a week after the fire the wall fell upon a building on the lot adjoining on the cast, crushing and killing the intestate, who was in the building.

The further material facts appear in the opinion.

Louis Marshall for appellant. The liability of a chartered municipal corporation for an improper performance or an omission to perform its duties arises out of its contract with the State created by the acceptance of its charter. (Conrad v. Vil. of Ithaca, 16 N. Y. 161; Maximilian v. Mayor of N. Y., 62 id. 160; IIam v. Mayor of N. Y., 70 id. 459; McCarthy v.

Statement of case.

City of Syracuse, 46 id. 194; Hines v. City of Lockport, 5 Lans. 16; 50 N. Y. 236; Ensign v. Sup'vrs of Livingston Co., 25 Hun, 21; Henley v. Mayor of Lyme, 5 Bingham, 91; 2 C. & F. 331; Mayor of Lynn v. Turner, Cowper, 86; Scott v. Mayor, etc., of Manchester, 2 H. & N. 204; Crowley v. Mayor of Sunderland, 6 id. 564; Mersey Docks v. Gibbs, L. R., 1 H. of L. C. 93; Jones v. City of New Haven, 34 Conn. 1.) Where a public body is clothed by statute with power to do an act which the public interest requires to be done, and the means of performance are placed at its disposal, the execution of the power may be insisted on as a duty, although a statute conferring it be only permissive in its terms. (People v. Corporation of Albany, 11 Wend. 539; Mayor, etc., v. Furze, 3 Hill, 612; Hutson v. Mayor, etc., 9 N. Y. 163; People v. Sup'vrs of Otsego Co., 51 id. 410; Hines v. City of Lockport, 5 Lans. 16; 50 N. Y. 236; Jones v. New Haven, 34 Conn. 1; Maximilian v. Mayor, 62 N. Y. 169, 170; Parker v. Mayor of Macon, 39 Ga. 725 ; People v. Albany, 11 Wend. 542; Kiley v. City of Kansas, 69 Mo. 102; Norristown v. Moyer, 67 Penn. St. 356.) A municipal corporation has power to abate a nuisance. (Hart v. Mayor of Albany, 9 Wend. 571; Russell v. St. Joseph, 53 Mo. 290; Mayor, etc., v. Turner, Cowper, 86; People v. Albany, 11 Wend. 543; Wharton on Neg. [2d ed.1, § 265; Wood on Nuisances, 780; Ferguson v. City of Salina, 43 Ala. 398; Stale v. Purse, 4 McC. 472; Brower v. N. Y., 3 Barb. 234; Kiley v. City of Kansas, 69 Mo. 102; Heeg v. Licht, 80 N. Y. 519; Wilson v. Mayor of N. Y., 1 Denio, 595; Mills v. City of Brooklyn, 32 N. Y. 487; Nash v. People, 30 id. 607, 617; Grant v. Erie, 69 Penn. St. 420.) Where a building becomes dilapidated or unsafe by reason of decay, or the action of the elements, it becomes the duty of the owner or of those having control over the same, to exercise reasonable care in avoiding the occurrence of an accident, and where the building falls by reason of a disregard of such duty, those neglecting it are liable to the person injured for the consequences of their negligence. (Vincett v. Cook, 6 T. & C. 562; Mullen v. St. John, 57 N. Y. 567; Rector of the Church