text:
    William H. Haskell, Appellant, v. John A. Queen and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Theodore W. Morris and others, Appellants, v. The Mayor, etc., Respondent.
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    Mary Ann Robinson v. Robert Govers.
   Motion for reargument granted.


text:
    The People of the State of New York v. Matteo La Battaglia.
   Judgment affirmed; no opinion.


text:
    The People of the State of New York, Respondent, v. Herman W. Miller, Appellant.
   Judgment affirmed. Opinion

Per Curiam.


author: Macomber, J.

text:
    Edward C. Walker, Jr., Appellant, v. Susanna Porter and another, Respondents.
   That portion of the order appealed from reversed, with ten dollars costs and disbursements, and the motion, as originally made, granted. Opinion by

Macomber, J.


author: Daniels, J., at Special Term.

text:
    The Thames and Mersey Marine Insurance Company (Limited), Respondent, v. Kate E. Dimick, Executrix, etc., of Lorenzo Dimick, deceased, Impleaded, etc.
   Appeal by the Continental Insurance Companj'. Plaintiff’s motion to dismiss appeal denied, with ten dollars costs and disbursements. Order appealed from affirmed, on opinion of

Daniels, J., at Special Term.


author: Lewis, J.

text:
    Andrew J. Applebee and another, Executors, Respondents, v. William Duke, Appellant, Hanford Duke and Myron Duke, Respondants.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Lewis, J.


author: Dwight, P. J.;

text:
    Hannah Prentice, Administratrix, etc., of Thomas Prentice, Deceased, Plaintiff, v. The Village of Wellsville, Defendant
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit. Opinion by

Dwight, P. J.;

Lewis, J., not sitting.


text:
    Theresa Wellenhoffer, Administratrix, etc., of Thomas Wellenhoffer, Deceased, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.


text:
    Adam J. Stephen, an infant, by guardian, Appellant, v. James B. Stevens and another, Respondents.
   Judgment appealed from affirmed.

Opinion by

Macomber, J.


text:
    John N. Dunn, Appellant, v. Thomas J. Whalen, and another, Respondents.
   Judgment appealed from affirmed, with costs. Opinion by

Lewis, J.


author: Macomber. J.

text:
    Eleanor D. Gaylord, Administratrix, Respondent, v. Nelson Beardsley, Appellant.
   Order appealed from reversed, with ten dollars costs- and disbursements, and the motion granted on. payment of ten dollars costs by defendant. Opinion by

Macomber. J.


author: Marcomber, J.

text:
    Orrin R. Adams, Plaintiff, v. New York, Lake Erie and Western Railroad Company, Defendant.
   Plaintiff’s motion for a new trial denied, with coste, and judgment ordered for the defendant on the nonsuit. Opinion by

Marcomber, J.


text:
    Margaret Mills, as Executrix, etc., of Eliza Martin, Deceased, Respondent, v. Robert M. Wheeler and another, Appellants.
   Judgment and order appealed from affirmed. Opinion by

Lewis, J.


author: Dwight, P. J.

text:
    Edgar D. Mather, Appellant, v. Emeline D. Martin, Respondent.
   Judgment and order denying plaintiff’s motion for a new trial on the minutes appealed from reversed, and a new trial granted on payment by the plaintiff of the costs of the circuit at which, the action was tried. Opinion by

Dwight, P. J.


author: Macomber, J.;

text:
    George Miller, Respondent, v. Rochester Vulcanite Paving Company, Appellant.
   Judgment of the County Court of Monroe county appealed from affirmed. Opinion by

Macomber, J.;

Lewis, J., dissenting.


author: Macomber, J,;

text:
    Susan B. Anthony and another, Appellants, v. The American Glucose Company, Respondent.
   Judgment appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Macomber, J,;

Lewis, J., not sitting.


text:
    Frank S. Oakes, Plaintiff, v. The Cattaraugus Water Company, Defendant.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit. Opinion by

Lewis, J.


text:
    Mary Ensign, Individually, and as Administratrix, etc., Appellant, v. Nathaniel Jarvis, Jr., and Cornelia Hamilton, as Administratrix, etc.. Respondents.
   Judgment appealed from affirmed on opinion of

Daniels, J., at Special Term.


text:
    Edward W. Hankins, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Order denying plaintiff's motion for a new trial affirmed, with costs, on authority of the decision in this case as reported in 59 Hun, 51;

Lewis, J., dissenting.


text:
    The North-eastern Permanent Savings and Loan Association v. Hiram L. Barker, Respondent, Impleaded with George W. Duncan and others, Appellants.
   Judgment of the County Court of Monroe county appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Jacob Bisson and another, Respondents, v. Chauncey M. Depew, Appellant, Impleaded with others, Respondents.
   Judgment appealed from affirmed, with costs, payable by the appellant. 0 pinion by Lewis, J. (See Bisson and another, Respondents, v. The West Shore R. R. Co.. Appellant, reported ante. p. 604.)


text:
    Solon S. Laing, as President of the Bank of Cattaraugus, Appellant, v. Alonzo B. Rush and others, Respondents.
   Order denying plaintiff’s motion for a new trial appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    William Selover. Respondent, v. Absalom Lockwood and others, Appellants.
   Interlocutory judgment appealed from reversed, with costs. Opinion by

Macomber, J.


text:
    William Roades, Respondent, v. Eliza T. Larson, Appellant.
   Judgment and order appealed from reversed ana a new trial granted, with costs to abide the event, unless the plaintiff stipulate to reduce the damages therein to the sum of $2,000, and if such stipulation be given, the judgment, so modified, affirmed, without costs to either party; Opinion by

Lewis, J.


text:
    The People of the State of New York ex rel. George R. Van Alstyne, Appellant, v. Burton H. Davy, as Sheriff of Monroe County, Respondent.
   Order appealed ,from affirmed, with costs.


text:
    Ida O. Kurz, Respondent v. Henry Fish, Appellant, Impleaded, etc.
   Judgment appealed from affirmed. Opinion by

Macomber, J.


text:
    Frances Connolly, Respondent, v. The Buffalo, Rochester and Pittsburg Railroad Company, Appellant
   Judgment and order appealed from affirmed.


text:
    Joseph Donnelly, Appellant, v. John Donnelly and others, Respondents.
   Judgment appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    Eugene McEntee, Jr., as Executor, etc., of Eugene McEntee, Sr., Deceased, Appellant, v. William B. Aris and another, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Lewis, J.


text:
    Cincinnati National Bank, Respondent, v. Myron H. Tilden, Jr., Respondent, and Thomas Brown, as Administrator, etc., Impleaded, etc., Appellant. Thomas Brown, as Administrator, etc.. Impleaded, etc.. Appellant, v. Myron H. Tilden, Jr., and Cincinnati National Bank, Impleaded, etc., Respondents.
   Order appealed from reversed and order to be entered directing receiver to pay to counsel for respondents the sum of fifty dollars for services in procuring appointment of receiver, and to pay the balance of fund in his hands to appellant, Thomas Brown Opinion by

Lewis, J.


text:
    Susan Ehlein, Respondent, v. Samuel N. Brayton, Appellant.
   Order appealed from modified as indicated in opinion, and, as so modified, affirmed, without costs of this appeal to either party. Opinion by

Dwight, P. J.


text:
    Ludwig Herbst, Respondent, v. The Vacuum Oil Company, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Lewis, J.


text:
    John D. Chamberlain, Respondent, v. Joseph Dumville and others, Appellants.
   Order appealed from reversed, with ten dollars costs and disbursements. Opinion by

Dwight, P. J.


text:
    Alice L. Monroe, Respondent, v. George H. Monroe, Appellant.
   Interlocutory judgment appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    Joseph Kress, Respondent, v. The East Side Savings Bank, Appellant.
   Judgment and order of the County Court of Monroe county appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Etta L. Alexander, Appellant, v. The Rochester City and Brighton Railroad Company, Respondent.
   Order granting anew trial appealed from affirmed, with costs to abide the event.


text:
    Charles H. Shepherd, as Administrator, etc.. Plaintiff, v. The Northern Central Railway Company, Defendant.
   Plaintiff’s motion for a new trial denied, with costs, and judgment directed for the defendant on the nonsuit.


text:
    James Talcott, Respondent, v. Peter Thomas and another, Appellants.
   Interlocutory and final judgments appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Frances C. Lathrop, Respondent, v. Orator F. Woodward, Appellant.
   Judgment appealed from affirmed. Opinion by

Macomber, J.


text:
    Frances A. Dike, Respondent, v. William Long, Survivor, etc., Appellant.
   Judgment reversed and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.

(See William T. Long v. William Long, Survivor, etc. reported, ante, p. 595.)


author: James C. Smith,

text:
    William T. Long and another, Appellants, v. Bertha Long, Respondent.
   Judgment appealed from affirmed, with costs, on opinion of

James C. Smith,

Referee.


text:
    William H. Walker, Respondent, v. American Central Insurance Company of St. Louis, Missouri, Appellant.
   Judgment and order appealed from affirmed. Opinion by

Macomber, J.


text:
    Henry McLean, Appellant, v. The Standard Oil Company of Indiana, Respondent.
   Judgment appealed fromreversed and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.


text:
    David E. Barrows, Respondent, v. Henry N. Webster, Appellant.
   Judgment appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Dwight, P. J.


text:
    Almira Rowland, Respondent, v. Daniel Sprouls, Appellant.
   Order denying defendant’s motion for a new trial appealed from affirmed, with costs. Opinion by

Lewis, J.


author: Dwight. P. J.

text:
    Clarence L. Dunn, as Administrator, etc., of Abram M. Dunn, Deceased. Appellant, v. Cornelius R. Parsons, Respondent.
   Judgment and order appealed from affirmed Opinion by

Dwight. P. J.


text:
    Lena Hahnke, by Guardian, Respondent, v. Adam Frederick, Appellant.
   Judgment and order appealed from affirmed.


text:
    Robert Talbert, Respondent, v. James Storum, Administrator, etc., Impleaded, etc., Appellant.
   Order appealed from affirmed, with ten dollars costs ana disbursements. Opinion by

Macomber, J.


text:
    The Penn Mutual Life Insurance Company. Respondent, v. Edwin C. Bradley, Appellant
   Judgment appealed from affirmed. Opinion by

Lewis, J.


author: Macomber, J,

text:
    Michael Doyle and another, Appellants, v. John F. Unglish and another, Respondents.
   Judgment appealed from affirmed. Opinion by

Macomber, J,


author: Lewie. J.

text:
    Alonzo Halliday, Respondent, v. Hannah White, Appellant.
   Judgment appealed from affirmed. Opinion by

Lewie. J.


text:
    The Birdsall Company, Respondent, v. Stephen B. Ayres, Appellant.
   Judgment appealed from affirmed. Opinion by

Macomber, J.


text:
    Anna E. Lick, Respondent, v. The Town of Moravia, Appellant.
   Court declines to consider this appeal (submitted without argument) for the reason that the papers contained in the appeal-book are not certified to be “ a copy of the papers used before the court on the hearing of the motion,” as required by section 1353 or the Code of Civil Procedure; also that the case, which is a part of the appeal-book, was not procured tobe settled and signed by the judge before whom the action was tried, as required by sections 997 and 999 of the Code or Civil Procedure and Rule 35 of General Rules of Practice.


text:
    Irving Paine, Respondent, v. Abram T. Kerr, Appellant.
   Judgment appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Lewis, J.


text:
    Sophia Preston, Appellant, v. Philip Groben, Respondent.
   Judgment appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Mary Nielson, Respondent, v. Alice Lafflin, Appellant.
   Judgment appealed from affirmed, with costs. Opinion by

Macomber, J.


author: Adams, J.,

text:
    Nathan Stein and others, Respondents, v. Frederick Maggs and another, Appellants.
   Judgment appealed from affirmed on opinion of

Adams, J.,

at Special Term.


text:
    The Superintendent of the Poor of the County of Cattaraugus v. The Superintendent of the Poor of the County of Erie.
   Judgment ordered for the plaintiff on the submission. Opinion by

Macomber, J.


text:
    Ira W. Ackley, Executor, etc., Appellant, v. John Ackley, Respondent.
   Judgment appealed from affirmed. Opinion by

Lewis, J.


text:
    William Halter, Appellant, v. John Shaffer, Respondent.
   Judgment of County Court of Cattaraugus county appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Albertus Richards, Respondent, v. Cyrus D. Angell, Appellant.
   Judgment appealed from affirmed. Opinion by

Macomber, J.


author: Rumsey, J.,

text:
    Esek Page and another, Appellants, v. Albertus Larrowe, Respondent.
   Judgment appealed from affirmed, with costs, on opinion of

Rumsey, J.,

and on authority of Rochester Distilling Company v. Raze (48 N. Y. St. Rep., 301).


text:
    Moravia National Bank, Respondent, v. Groton Iron Bridge Company, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Ada Evoy, Respondent, v. Expressmen’s Aid Society, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


author: Lewis. J.

text:
    Henry R. East, Appellant, v. Cayuga Lake Ice Line, Respondent.
   Judgment and order of the County Court of Monroe county appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Lewis. J.


text:
    Anna Grosser, Respondent, v. the City of Rochester and another, Appellants. Impleaded, etc.
   Judgment appealed from affirmed, with costs, on authority of the decision of this court on former appeal. Reported, 60 Hun, 379.


text:
    Edwin Smith, Executor, etc., Respondent, v. Mary A. Chase, Appellant, Impleaded, etc.
   Judgment of the County Court of Cattaraugus county appealed from affirmed, with costs. Opinion by

Lewis, J.


text:
    Sophronia King, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant
   Judgment and order appealed from affirmed. Opinion by

Dwight, P. J.


text:
    In the Matter of the Petition of James Matteson for a decree or order granting leave to issue execution against real property of Ira L. Gates.
   Decree of the surrogate of Cattaraugus county appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    Frank B. Martin, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Order granting nonsuit affirmed, with costs, and judgment directed for the defendant thereon. Opinion by

Lewis, J.


text:
    Michael W. Anguish, Appellant, v. Frederick Craft, Respondent.
   Judgment and orders appealed from affirmed.

Lewis, J., not sitting.


text:
    Rochester Distilling Company, v. Asa Razey.
   Motion for a reargument^denied. Leave to appeal to Court of Appeals granted.


text:
    W. Cleveland Allen v. Margaret G. Allen and others.
   Motion to modify order of this court so as to provide for compensation to guardian ad litem granted, and the amount fixed at $250, besides disbursements payable out of the estate.


text:
    In the Matter of the Final Judicial Settlement of Accounts of Bernard McGorray, Executor, etc., of John M. McGorray, Deceased.
   Motion to modify order denied.


text:
    Sidney B. Roby, Appellant, v. Thomas J. Reynolds, Respondent.
   Defendant’s motion for a reargument, or for leave to appeal to Court of Appeals, denied.


text:
    Catherine Mehegan, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Motion by plaintiff to modify order of this court so as to show that the judgment and order appealed from were reversed on questions of law alone, denied.


text:
    Albert G. Smith v. Charles E. Mott.
   Reargument granted.


text:
    Lawrence Saltsman, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.

Decisions by Charles C. Dwight, P. J., Doran D. Dewis, Francis A. Macomber and Albert Haight, JJ.


text:
    In the Matter of the Probate of the Last Will of George A. Bartholick, deceased.
   Decree of the surrogate of Monroe county appealed from affirmed, with costs to the respondent Kirley, payable out of the estate.

Haight. J., not voting.


text:
    Frances M. Noble, Respondent, v. Clark D. Knapp, Executor, etc., Appellant
   Judgment and order appealed from affirmed, with costs.


text:
    Daniel Torpy and another, Appellants, v. Reuben Torpy and others, Respondents.
   Judgment appealed from affirmed, with costs.


text:
    Edmund C. Whitney and another, Respondents, v. Joseph Davis and others, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.

Haight, J., not sitting.


author: VaN Bruot, P. J.:

text:
    C. ELLIOTT MINOR, as Assignee for the Benefit of Creditors of P. W. GALLAUDET & CO., Plaintiff, v. CORNELIA A. BEVERIDGE, Defendant.

      Broker and customer — a demand for 'more ma/rgin is necessary, before stocks bougM u/pon a ma/rgin can be sold out.

    Cornelia A. Beveridge, who, was dealing in stocks npon a margin through, her brokers, P. W. Gallaudet & Co., had sufficient margin with them for her purr chases until there was a fall in prices in the stock market, whereupon the brokers sold out her stock without notice to her, and without any demand for additional margin.
    This action on the part of the brokers resulted in a loss, the amount of which the assignee of the brokers attempted to collect from her by’action.
    Upon an appeal from an order dismissing the complaint:

      Held, that such dismissal was proper.
    That the brokers should have notified the customer, demanded more margin, and have given her a reasonable time in which to furnish it.
    That their contract with her was entire, and a failure to carry the stock until they had placed her in default was a breach of the entire contract.
    That where they had failed to perform their duty to their customer, they and their assignee were precluded from asserting any claim which arose out of the contract.
    MottoN for a new trial by the plaintiff 0. Elliott Minor, as assignee for the benefit of creditors of P. W. Gallandet & Cof„ npon executions taken npon a trial of the action had at the New York Omnm; before tbe court and a jury, at which the complaint was dismissed and the exceptions were directed to be heard in the first instance at '■General Term, judgment to be in the meantime suspended.

      'George W. Wmgate, for the motion.

      M. I. Bushe, opposed.
   VaN Bruot, P. J.:

This action was brought by the plaintiff, as assignee, for the benefit of the creditors of the late firm of Gallaudet & Co., who had been bankers and brokers in stocks, bonds and other securities, against the defendant, who had been a customer of said firm. Certain stock having been purchased for the defendant by said Gallaudet & Co.; it was carried for a long period of time. In June, 1886, pursuant to a request then made by Gallaudet & Co., the defendant deposited a certificate of fifty shares of Pacific Mail stock as margin •on the account. A son of the defendant was, throughout this period, an employee of said firm, and said employment continued up to the time of the failure. In December, 1888, the defendant transferred a stock dealing account which she then had with other brokers to Gallaudet & Co. This account was, at all times, kept fully mar-gined up, and there was sufficient margin up to the tenth of November, on which day there was a depreciation in the market, and ■Gallaudet & Co. sold out all the defendant’s stocks. No demand was made upon the defendant to supply margins, and no notice was given to her of the intention to sell, but one of the members of the firm testified that he notified the defendant’s son that he should have to sell out the stocks of the mother, the market being at this time very ragged, very weak and panicky, and that he sold the stocks light away. After the sale notices were offered to the defendant’s son at his office which he refused to accept, but no notice was ever sent to the defendant. This suit was subsequently brought to recover a balance claimed to have been created by this sale against the defendant. And proof was offered tending to show that all the stocks could have been purchased at prices below the prices at which they were sold within a week.

At the close of the plaintiff’s case, a motion was made to dismiss the complaint on the ground that Gallaudet & Co. had failed to perform their duty to the defendant, as brokers, in having sold out her stocks without notice to her, and without demand for further margin, and they were consequently precluded from maintaining any claims. This motion was granted, and the ruling of the court excepted to, and the exceptions ordered to be heard in the first instance at the General Term.

It is difficult and we will not undertake to reconcile the conflicting decisions which have been made by the court of last resort upon the relative rights and duties of stock-brokers and their customers. If we are to follow the deductions claimed to be drawn from the statements contained in some of the decisions, we should be compelled to hold, where there is a contract to carry stocks upon a margin, that a sale of such stocks without notice to a customer is not a breach of such contract, the relation of the parties being simply that of pledgor and pledgee, and that, for a conversion of the pledge, the pledgee is only liable for the damages sustained by the pledgor by such conversion, but whether they would equal the amount of the claim of the pledgee would depend upon the facts developed. But we think that this claim is not directly supported by the case cited ; and the implied agreement from the contract to carry upon a margin is also lost sight of. Where there is a contract to carry stocks upon a margin, an agreement, as part of the contract, is implied that such stocks shall not be sold in case there is danger of the exhaustion of the margin until additional margins shall be applied for and a reasonable time afforded for the furnishing of the same. Therefore, where the relations of the parties are such as they were in the case at bar, the sale of stock without notice is a breach upon the part of the broker of the contract under which the stocks-were purchased ; and one of the essential elements of recovery in every contract is an allegation upon the part of the party seeking to-recover that he has fully performed the contract upon his part.

To hold that, under such circumstances, the broker is necessarily entitled to recover any advances that he may have made, and that in case of a sale without authority, the customer must go into the-market and repurchase, if it is possible to do so, and thereby save himself from the losses arising from such unauthorized sale, is to lose sight entirely of the fact that such a construction of the law would give the party a right to recover upon a contract which he has himself violated. In one of the cases (that of Capron v. Thompson, 86 N. Y., 418) it was undoubtedly held that a sale of stock wbicb had been bought upon a margin without notice to the customer did not constitute a failure to perform a condition precedent, but was a breach of a condition subsequent to the purchase. But it seems to me that this is a mis-statement in reference to the relations of the parties. The contract in regard to the carrying of the stock is an entire contract, and a failure to carry until the customer has been placed in default is a breach of the entire contract, and the broker, under such circumstances, is not in a position to establish a condition of affairs which entitles him to any recovery arising out of anything which has been done in connection with that contract. A customer having a contract with a broker to purchase and carry stocks upon a margin cannot be called upon, after the broker has violated his contract, and sold his stocks without notice, to go into the street and endeavor to make a similar contract with other brokers in order to protect himself from loss. It might be that the condition of the market would render it impossible for the customer to make such a contract at that particular time; and thus he is placed at a disadvantage by the broker inducing him to enter into the adventure because of his promise and agreement to carry the stock upon a margin, and when he violates that agreement the customer must look out for himself and assume all the risks.

Ve do not think that this can be the true construction of the relation which arises between the broker and the customer from a contract to buy and carry upon a margin. The case of Gillett v. Whiting (120 N. Y., 403) recognizes this principle, and so does the case of Rogers v. Wiley (131 N. Y., 527). This latter was a case of a short sale. The stock having advanced, the defendants agreed to carry the stock until the plaintiff could get out all right. Without any notice to the plaintiff the defendants bought the stock in at a price which about exhausted the margin. Upon receiving the notice of the purchase, the plaintiff repudiated it. The market subsequently declined, and the plaintiff directed the defendants to buy to cover the short sale and to sell the securities held as margin, and to account. This they declined to do, and the court held that the plaintiff was entitled to recover for a breach of that contract; thus recognizing the fact that the duty of the broker continues to the end, and he can terminate Ms obligations only by fulfilling Ms duties to his customers. Therefore, it seems to follow that where a purchase of stock is made upon a margin, and where, from the facts, there is an implied agreement to carry upon a margin, and the broker sells in violation of this agreement, he violates the contract which governs the relations between himself and his customers, and he ought not to be allowed to recover upon the implied promise to pay for the stock purchased, which is part, and parcel of the same contract to carry.

The exceptions should be overruled and judgment ordered for defendant, with costs.

O’Brien and Follett, JJ., concurred.

Exceptions overruled and judgment ordered for defendant, with costs.


author: VaN BeuNt, P. J.:

text:
    In the Matter of the Estate of AMELIA G. ULLMAN, Deceased.

    Surrogate— no power to assess the collateral inheritance tax or to declare void a will admitted to probate.

    The will of Amelia G-. "Oilman, relating to "both real and personal estate, having been duly admitted to probate, proceedings were subsequently taken to determine and assess the collateral inheritance tax, in which proceedings an appraiser, appointed by the surrogate of the county of New York, decided that the will unduly suspended the power of alienation, and reported that, with certain exceptions, the estate passed to the heirs-at-law and next of kin of the testatrix, as in cases of intestacy, and that such interests were subject to tax.
    This report having been confirmed, certain of the heirs-at-law and next of kin of the decedent appealed from the order assessing their shares.

      Held, that there was no express power given the surrogate to declare void, upon his own motion, a will which had been admitted to probate, and that no power of such a nature could be implied.
    That it was impossible, even if the power existed, that such an ad judication could be final so as to invalidate a will relating to real estate.
    That, in a proceeding so taken, the surrogate had no power even to declare legacies to be free from tax.

      That the first probate of a will of real estate did not become final until after a year in the case of personal estate, while in the case of real property the probate might, in a different foim,. be attacked after a much longer period.
    That an attack upon a will already admitted to probate should proceed from a party interested in property of the decedent affected by the will.
    Appeal by William B. Hooper, Joseph Hooper and Samuel Hooper from an order of the surrogate of the county of New York, entered in his office on the 15th day of March, 1892, adjudging that their interests in the estate of Amelia G. Ullman were severally liable to a collateral inheritance tax of $165.66.
    The proceeding was taken by John P. Haines, an executor of the estate of Amelia G. Ullman, upon a petition praying for the appointment of an appraiser to determine the collateral inheritance tax due upon her estate after her will, relating to both real and personal estate, had been admitted to probate. The estate consisted, to a very considerable extent, óf real estate. The appraiser, appointed by the surrogate, decided that the power of alienation was unlawfully suspended by the will, except as to a life estate in all her property given to the husband of the testatrix, and as to certain annuities to Eugenie Wiswall, and he reported that, with these exceptions, the estate passed as if Amelia G. Ullman had died intestate. The report was confirmed by the surrogate, and on an appeal to him, taken by the present appellants, the surrogate again confirmed the report.

      De Lagnel Berier, for the appellants.

      Horace Bussell, for the executors, respondents.

      Note.— The decision in this case was reversed in the Court of Appeals by a decision of that court handed down on the 7th day of March, 1893.

   VaN BeuNt, P. J.:

The sole question involved upon this appeal is, whether, in proceedings to fix the collateral inheritance tax, the surrogate has power upon his own motion to declare void the provisions of a will.

It is urged upon the part of the respondents that such power exists as an incident to his general jurisdiction over the subject of fixing such tax; that the act gives the surrogate, in express terms, jurisdiction to hear and determine all questions in relation to the tax; that he acts judicially, and, therefore, has, in addition to the power expressly given, all incidental powers which may be necessary to enable him to fix the tax, and, therefore, that the power conferred does include tbe right to construe a will even of real estate, it being utterly impossible to fix the tax on the estate without so doing.

If this contention is true, it is the most remarkable instance of the conferring of power by implication that our statute book affords. The basis of the argument seems to rest upon the fact of the inconvenience which would arise in the fixing of this tax did not that power exist in the surrogate. We do not think that merely because of inconvenience in the administration of an unwieldy, incongruous, ill-considered and blindly drawn statute, such implications should be indulged in. It certainly cannot be claimed that in this proceeding before the surrogate his adjudication upon the validity of the provisions of a will affecting real estate shall be final and conclusive. If it is not, however, cases would continually arise in which, after the surrogate had assessed the tax, holding the will to be valid or invalid, as the case might be, upon a bill filed, a contrary result, might be arrived at, and the real beneficiaries mulcted in a tax without the slightest authority in law.

It certainly cannot be that the determination of the surrogate-that the provisions of a will are valid, in these informal proceedings, for the purpose of assessing this tax, makes the question as to the validity of the provisions of that will res adjudícala, for the reason that in proceedings initiated in the manner in which this proceeding was initiated the surrogate has no power to determine that legacies are free from taxation. (In re Wolfe 66 Hun, 389.)

And, besides, if this power resides in the surrogate of his own motion to declare a provision in a will invalid for the purpose of fixing the tax under these acts, then we cannot see why he may not institute an investigation for the purpose of proving that the execution of the will was obtained by undue influence or fraud, or that the testator had not testamentary capacity, and that, therefore, there was in reality no will — powers which are equally necessary for the purpose of levying the tax as the power to construe and destroy.

There is another reason why an adjudication by the surrogate upon this subject cannot be final, and that is, because, at any time within one year after probate of a will of personal property, any person interested in the estate of the decedent may institute pro•ceedings for the revocation of such probate; and in respect to real property this right, in a different form, exists for a much longer •period of time. Hence, after the surrogate has assessed the tax •and the executors have paid it, subsequent proceedings may develop •the fact that such tax, as assessed, was entirely unauthorized.

The ordinary rule governing the interpretation and effect of wills .is that their provisions shall be carried out by the persons intrusted ¡therewith until they are attacked by some person who is interested in the property of the decedent, which is affected thereby. .A departure from this rule, and the giving to the surrogate in these ¡proceedings power to construe wills and determine upon their validity or invalidity, would necessarily lead to inevitable confusion and -uncertainty, and the results would be far more' detrimental than those which can possibly arise from the refusal to confer such ■authority by judicial legislation. If the law in question is defective in this particular, as it manifestly is in very many others, it is for ¡the legislature, not the court, to supply the omission.

It has been claimed that the cases In re Verplanck (91 N. Y., 439), and Purdy v. Hayt (92 id., 446), are authority for the contention of the respondents upon this appeal. But it is apparent, ¡upon an examination of those cases, that they have no relevancy to the question at bar. All that the court decided in those cases was that upon -the accounting of executors the surrogate might determine whether the personal property, or that which had become personal property, had been properly distributed, or to whom it should be paid. It is true that the construction of the will might be involved In this determination; but all that that construction decided was -the propriety of disbursements made in the administration of the •estate or to whom the fund in hand should be distributed, which is m harmony with the power expressly conferred by section 2624 of the “Code upon the surrogate to construe the disposition of personal property in a will. But in the case at bar the authority of the surrogate to construe the disposition in a will of real estate is claimed, not by •direct legislation, but simply by implication — an authority which has never yet been conferred upon any such officer by any legislation.

The order should be reversed, with costs.

O’BbieN and Babbett, JJ., concurred.

'Order reversed, with costs.

      Note. — The decision in this case was reversed in the Court of Appeals by a* decision of that court handed down on the 13th of February, 1893.


author: YaN BküNt, P. J.:

text:
    THE CONTINENTAL TRUST COMPANY OF THE CITY OF NEW YORK, as Receiver, etc., of WILLIAM B. WETMORE, Respondent, v. SARAH TAYLOR WETMORE, Individually and as Executrix of SAMUEL WETMORE, Deceased, and as Trustee under his Will for WILLIAM B. WETMORE, Appellant, Impleaded with Others, Defendants.

      Divorce — sequestration of the husband’s property — a trust fund for the benefit of the husband — a receiver does not represent a wife entitled to alimony.

    Annette B. Wetmore obtained a divorce from William B. Wetmore, who failed to pay alimony which he had been decreed to pay, and his property was thereupon sequestrated and the Continental Trust Company of the City of New York was appointed receiver thereof.
    Under the will of Samuel Wetmore, deceased, a trust was created in favor of William B. Wetmore, the income of which was to be applied to his use during life; and it was expressly directed by the will that William B. Wetmore should have no power to anticipate or dispose of the income until it had accrued.
    The receiver brought an action against the trustee of William B. Wetmore to reach his interest in the fund, the complaint in which did not show that there was any accrued income on hand and not paid over to the beneficiary; and no proof of any such income was made when an injunction was granted restraining the trustee, pending the action, from receiving or paying over the income.
    Upon an appeal by the trustee from the injunction order:

      Held, that it could not bo sustained.
    That the receiver took no title to income which accrued after his appointment, and it did not appear that there was any on hand when he was appointed. That, in no event, could the receiver take title to the income, present or future, this right, if it existed, being the personal right of Annette B. Wetmore growing out of her action for a divorce.
    That the receiver did not represent her in. the sequestration proceedings in respect to such income.

      Semble, that any relief which the wife could obtain must be by proceeding in the action of divorce.
    Appeal by the defendant, Sarah Taylor "Wetmore, individually, as executrix of Samuel W"etmofe, deceased, and a's sole surviving trustee under said will for "William B. "Wetmore, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 17th day of October, 1892, enjoining and restraining her from making any disposition of the securities and stocks mentioned in the complaint in this action as constituting the trust estate therein mentioned and referred to, and from in any manner interfering therewith, and from collecting or receiving any of the income accrued, or hereafter to accrue, from the said trust securities and stocks, or any or either of them, and from paying over any of said trust income to the defendant William B. Wetmore, or to any other person whomsoever; and further providing that the defendant, William B. Wetmore, be enjoined and restrained from receiving any of the said income, and from in any manner interfering therewith; and that the defendants, the Lehigh Yalley Railroad Company, the Warren Railroad Company, the Utica, Chenango and Susquehanna Yalley Railroad Company,, the New York, Lake Erie and Western Railroad Company, the Delaware and Hudson Canal Company, the Erie and Pittsburgh Railroad Company, the Buffalo and Erie Railroad Company and the Bank of America, be enjoined and restrained from transferring upon their books any of the securities belonging to the said trust estate, and also be enjoined and restrained from making any payments of any dividends or income upon or from any of the stocks or securities constituting the said trust estate, or any part thereof, except under the orders of this court to be made in this action, or its judgment to be made herein.

      8. P. Nash, for the appellant.

      F. B. Ocmdler, for the respondent.
   YaN BküNt, P. J.:

On the 1st day of April, 1892, one Annette B. Wetmore, the wife of William B. Wetmore, obtained a decree of absolute divorce against her husband, and in the decree allowing such divorce the defendant Wetmore was directed to pay to her for alimony $3,000 a year and $1,000 for each of her three children during their minority, the first payment to be made on the 1st day of July, 1892. The defendant, William B. Wetmore, having failed to comply with the directions contained in the decree of divorce, in respect to the payment of alimony, on the 26th of July, 1892, the plaintiff in that action obtained an order under section 1772 of the Code, by which the personal property and the rents and profits of the real property of said defendant Wetmore were sequestrated and the Continental Trust Company, the plaintiff herein, was appointed receiver of such personal property of said Wetmore and of the rents and profits of his real property. This action was subsequently brought against the appellant, Sarah T. Wetmore, as executrix and trustee under her husband’s will, and others to reach the interest of the said William B. Wetmore in a trust fund of $100,000, provided for by the fifth clause of the will of the appellant’s husband, by which he gave to his executors, other than his son, the said William B. Wetmore, $100,000 upon trust to keep the same invested and receive the income thereof and, after deducting reasonable charges for the management of the trust, to apply the net income of the said trust fund, from time to time as it should accrue, to the use of his son, William B. Wetmore, as long as he should live. By the eighth clause of the will the testator directed that no person for whose benefit any trust was thereby created should have power to anticipate or dispose of any income directed to be paid or applied to the use of such person until the same should have fully accrued and become payable to such use, and the trustees of the respective trusts were empowered and requested to disregard and defeat every assignment or contract in contravention of this clause of the will.

There was no allegation in the complaint that, at the time of the appointment of the receiver in the sequestration proceedings, any income had accrued or was payable under this trust; nor that there was at that time in the trustees’ hands any income which had not been previously paid over to the beneficiary.

Upon the foregoing facts an application was made to the court for an injunction pendente lite restraining the defendant Sarah T. Wetmore from making any disposition of the stocks or securities constituting the trust estate, and also enjoining and restraining her from collecting and receiving any income accrued, or thereafter to accrue, from the said trust securities and stocks, or any or either of them, and from paying over any of said trust income of said William B. Wetmore to any other person or persons whomsoever. From this injunction order this appeal is taken.

The only question which is necessary to discuss is, can this receiver in sequestration proceedings maintain such an action ? Or is it not tbe rule of law that tbe relief sought, if obtainable at all, can only be by action brought in tbe name of tbe plaintiff in tbe action for divorce ?

We think when we consider tbe rights and powers of tbe plaintiff, and the property of which tbe plaintiff was appointed receiver, it is apparent that this action cannot be maintained. Tbe receivership did not and could not extend to tbe principal of tbe trust fund in the bands of tbe appellant, as trustee. Tbe plaintiff was appointed reqeiver of tbe personal property of tbe defendant William B. Wet more, and of tbe rents and profits of bis real estate. By no fiction of law can income, which may result from investments held in trust, and which income, when it does result, belongs to a party, be held to be tbe personal property of such party until it has accrued.

It is a familiar principle that a. receivership in supplementary proceedings does not apply to property subsequently acquired by the defendant, unless such property issued out of property, tbe possession of which passed to tbe receiver, as tbe rents of real estate of which a receiver has been appointed. (Dubois v. Cassidy, 75 N. Y., 298.) And tbe same rule must necessarily apply to a receiver appointed in sequestration proceedings. In supplementary proceedings tbe receiver is appointed of the property of the judgment-debtor. In sequestration proceedings a receiver of bis personal property may be appointed, and of tbe rents and profits of his real estate; tbe sequestration receiver taking less than a receiver in supplementary proceedings. Therefore, it seems to follow, as a necessary result, that such receiver acquires no title to personal property acquired subsequent to his appointment.

In tbe case at bar, at tbe time of tbe appointment of this plaintiff as receiver and of tbe commencement of this action, there was no property upon which tbe appointment of tbe plaintiff, as receiver, could attach, and it is only sought by this proceeding to reach some income which, perhaps, may in the future accrue to the defendant William B. Wetmore. We fail to see how the plaintiff makes out title to any such property. If there is any obligation arising out of the marital relation which had existod between the plaintiff and the defendant in the action for divorce, which authorized the court to enforce against the husband the payment, out of future accruing income, of the alimony awarded to the plaintiff in the action for divorce, such right is a personal right, and the receiver in sequestration proceedings is not the representative of the wife in respect to it. Much as we may condemn the willful defiance by the defendant William 33. Wetmore of the decrees and orders of the court, yet such a condition of affairs affords no ground for this court to violate the plain principles of law in order to lay our hands upon him.

The order should be reversed, with ten dollars costs and disbursements.

Follett, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author:
O’BeieN, J.: YaN BrtjNt, P. J.:
      Barrett, J.:

text:
    In the Matter of the Petition of JAMES H. HEROY and Another for a Decree Directing the Distribution of the Real Property of WILLIAM CAMPBELL, Deceased, or so Much Thereof as may be Necessary for the Payment of his Debts.

      Sale of a decedent’s real estate on a creditor’s application — express charge of debts upon realty — effect of a discretionary power of sale to executors.

    The Code of Civil Procedure (§ 2749) provides that “real property, of which a decedent died seized, * * * may he disposed of for the payment of his debts and funeral expenses as prescribed in this title, except where it is devised expressly charged with the payment of debts.”
    William Campbell, whose will contained no mention of his debts nor direction for their payment, after giving certain legacies, devised the residue of his estate to his executors, in trust, to receive the rents and profits during the lifetime of his wife, and apply them to the support of his family, and after her death he devised the remainder to his children. By a subsequent clause he empowered his executors, if they should deem it to be for the best interests of his estate, to sell any of his real estate.
    Certain of the creditors of the testator having petitioned the surrogate of the county of New York for a sale of his real estate, the application was denied.
    On appeal by the creditors:

      Held, that the application should not have been refused.
    That the real estate of the decedent was not expressly charged with the payment of his debts, and, therefore, the creditors were entitled to take proceedings for its sale.

      That the power of sale given to the executors was discretionary and not imperative, and unless imperative the creditors could maintain the proceedings. (Per
    O’Brien and Barrett, JJ.)
    Appeal by James H. Heroy and William W. Heroy, as surviving partners of Heroy & Marenner, creditors of William Campbell, deceased, from an order of the Surrogate’s Court of the county of New York, entered in its office on the 7th day of June, 1892, denying tlieir application for a sale, mortgaging or leasing, of the real estate of the decedent, or of so much thereof as might be necessary for the payment of his debts.

      Henry B. Johnson, for the petitioners, appellants.

      Thomas O. Ennever, for the executors, respondents.
   O’BeieN, J.:

By their application to the surrogate the petitioners sought to enforce the sale of the real estate of which the decedent died seized, and have the proceeds thereof applied to the payment of their debts, pursuant to the provisions of the Code of Civil Procedure by section 2749 of which “ real property of which a decedent died seized * * * may be disposed of for the payment of his debts and funeral expenses as prescribed in this title, except where it is devised expressly charged with the payment of debts.”

In disposing of the application, the learned surrogate says: “ It is only necessary to consider one question, viz., whether there is a power of sale in the will which could be exercised for the payment of debts.’ ” And again he says: “ The point to be decided is whether a valid power of sale is created by the tenth clause of the will, and if there is a power of sale, whether it is one for general purposes, and, if exercised, whether from the proceeds arising therefrom the debts could be paid.” After analyzing the provision of the will and referring to two cases (In re Powers, 124 N. Y., 361, and In re Estate of Juch, 17 N. Y. Supp., 910; 63 Hun, 280) he thus concludes: The case at bar would seem to be equally strong, if not stronger than the cases cited as evidencing an intention on the part of the testator to give a discretionary power of sale to his executors to be exercised by them, not only for purposes which might be favorable and profitable to the beneficiaries and legatees, but also for the purpose of paying his debts, should occasion arise therefor, viz., an inadequacy of personal property.”

Upon this conclusion that the power of sale was unlimited and broad enough to include a power for the payment of debts, he denied the application, and from the order of denial this appeal is taken.

By the answer the executors alleged that, pursuant to the power of sale contained in the will, they had sold one of the pieces of real estate of which their testator died seized; but whether or not the proceeds arising therefrom would have been sufficient to pay the petitioners’ claim is not alleged. As this allegation cannot be regarded as equivalent to a statement that there was sufficient personal property with which to pay the debts, it must be assumed upon this appeal, as no doubt it was by the learned surrogate, that this circumstance of a sale in no .way affected the question which was presented, relating to the petitioner’s right to the summary remedy provided by the Code, for the application of the decedent’s real estate to the payment of debts, the personal property being insufficient.

The testator, by his will, makes no mention of debts, nor does the will contain the usual direction for the payment thereof by the executors, being silent with reference thereto. After payment of certain bequests, he gives, devises and bequeaths “ all the rest, residue and remainder of my real and personal estate, in trust,” to executors, to take possession, manage and control the same, receive the rents and profits therefrom during the life of his wife. After her death, he gives, devises and bequeaths all his estate, both real and personal, to his children, to six of whom their sharés are given absolutely, and to the seventh a life interest, with a direction that, upon the death of this child, the one-seventh is to revert to and form part of the estate and to be divided among the other children.

In addition to giving authority to the executors to collect and receive the rents, issues and income of the estate, and to dispose of any of the personal property, by the tenth clause of his will he confers, with respect to his real estate, the following power upon the executors:

Tenth. If, at any time, my executors, or such of them as shall have qualified, the survivors or survivor of them, shall deem it for the best interests of my said estate that any part or parts, or all of my real estate, should be sold, then I authorize and empower my executors, as such, and the survivors and survivor of them, to sell and dispose of any real estate of which I may die seized or interested in, and any part or parts thereof, upon such terms and in such manner as they shall deem best, and for that purpose to make, execute and acknowledge all necessary deeds of conveyance therefor.”

It will thus be seen, from a reading of the will, that the testator did not devise any part of his real estate expressly charged with the payment of debts, nor was there any imperative direction to the executors to change the character of his estate as he left it; but the real estate was devised to his wife for life, with remainder over to his children, subject to being divested by the execution of the power of sale conferred upon the executors.

Whether or not, under the provisions of such a will, a general power of sale, such as is here given, will prevent the enforcement of the summary right of a creditor to have the real estate applied in payment of debts, can best be determined by resort to some of the cases showing the principles upon which the decisions in these cases proceeded.

In the first class may be grouped those wherein, by the will, the real estate is devised expressly charged with the payment of debts. There the Code governs, and would prevent the creditors enforcing a sale of the real estate.

Another class, directly opposite, is where the estate is devised and no intention to charge the debts upon the same is shown, resort may be had to the real estate. Thus, In Matter of McComb (117 N. Y., 378), it was held that a discretionary power of sale of real estate given to executors for the benefit of devisees, with a direction to apply the proceeds to their use, may not be converted into a power of sale to pay debts; that the doctrine of equitable conversion is not applicable to such a case.

TJnder a third head may be grouped a class of cases like the one referred to by the learned surrogate (In re Powers, supra, and Erwin v. Loper, 43 N. Y., 520), where the principle has been applied that where executors, under power of sale given by the will, sell real estate, the avails become assets in their hands for the payment of debts and legacies and to be accounted for the same as any other assets; the residue, after payment of legacies and debts, belong to the devisees to whom tbe lands have been devised, subject to tbe. executors’ -power of sale.

It will tbus be seen tbat tbe distinction between tbe cases last' referred to and tbe class of cases like tbat of McComb is due to the-fact tbat in the McComb case a discretionary power of sale was to - be exercised for the benefit of devisees, whereas, in tbe class under' which fall tbe cases of Erwin v. Loper and In re Powers, the' power of sale was general and unrestricted, being given for tbe purposes of paying off incumbrances, protecting tbe real estate or more* equitably or conveniently dividing it, and which bad, by executors, been exercised, leaving in tlieir bands tbe resultant funds, which, in tbe course of administration, could be applied to the payment v.f debts. In one class there is a devise of real estate in specific parcels, but in the other class, where tbe real estate is not specifically devised and a general unrestricted power of sale is given, which is exercised and the property sold, the proceeds arising therefrom are applicable to the payment of debts. Under the latter head may be cited the cases referred to in the Matter of McComb (117 N. Y., 383), as follows: “ In Glacius v. Fogel (88 N. Y., 444), the entire real estate was devised to the executors, who were to divide and distribute the proceeds. The sales were for the estate and all its purposes, and not for the sole benefit of devisees. In Hood v. Hood (85 N. Y., 561), the real estate again was devised to the executors, in trust, to sell and hold and distribute the proceeds as money. * * * In Kinnier v. Rogers (42 N. Y., 531), the court added that, since there was no ground for an inference that the testator intended to appropriate his land to the payment of debts, the power of sale could not be exercised for that purpose.”

Although here the real estate was devised, subject to being divested by the exercise of the discretionary power vested in the executors, we are inclined to think that had such power been exercised and the property sold, and had the executors, in answer to the application of the creditor, shown that they held the proceeds of the real estate which could be administered upon and the debts paid, then the case and principle would be covered by the class of cases to which reference has been made of Erwin v. Loper and In re Powers. Here, however, assuming that the personal property and Hbe proceeds of the piece of real estate sold were insufficient to pay ' debts, the question is thus presented whether the creditor can enforce ■’the sale of other real estate by proceedings under the statute.

In re Juch's Estate (63 Hun, 280 [In re Gantert, supra]), this -court held that where the power of sale is unlimited and unrestricted to any particular purpose and is broad enough to include a power for the payment of debts, and there being a valid power of sale for that purpose, the proceeding cannot be maintained. In that case, decided by the Court of Appeals (136 N. Y., 106), it was said: “A power of sale to pay debts sufficient to defeat the creditor’s application under the statute must be one the exercise of which is ■imperative, and not simply discretionary. A creditor cannot be ■deprived of his statutory remedy, unless the debtor has by his testamentary act provided him with one which is equally prompt and ■effective in its operation.” And again: “ It is conceded that he is entitled to the relief sought, unless the testator’s real property is, by the terms of the will, subject to a valid power of sale for the payment of debts.”

As we have seen, the testator in his will here makes no mention ■of or provision for his debts whatever, and as to his real estate his intention was that it should be kept by his executors during the •lifetime of his wife, she to reside in a portion of it, and that the -income should be used to pay for the support of his family, and upon the death of the wife that the real estate and personal property •should go to his children, the personal property as personal prop•erty, and the real estate as real estate. The power, of sale is expressly -discretionary, and the creditors could not for their benefit, insist ■upon its exercise.

In re Juch the decedent in his will directed his executors to pay 'his debts and funeral expenses, whereas, in this case, we find no reference whatever to debts. And if importance is to be attached to such a provision in a will, we do not see why the absence of such a provision should not be equally as significant. In that case it is said: “"We cannot regard the direetion(to the executors and trustees to pay all just debts as an idle and meaningless formula. The testator well knew that his will, in this respect, could not be obeyed without a sale of some part of his real estate, and it is to be pre■sumed that he intended to clothe them with a power commensurate with tbe duties and obligations imposed upon them. * * * The real and personal property is blended in one gift to the executors for a common trust, in which all the beneficiaries share equally. In such cases the exercise of a general and unlimited power of sale is imperative, and may be compelled in favor of any party who is lawfully entitled under the provisions of the will to the proceeds of the real property when sold. A creditor whose debt is directed by the will to be paid, and for the satisfaction of which the personal estate proves insufficient, belongs in this class. He is beneficially interested in the exercise of the power and, as to him, it'becomes a power in trust,” and the court decides that the petitioner (a creditor), as a beneficiary of the power, could compel its execution,” and, therefore, that he has no right to the summary remedy of the Code.

Applying this reasoning to the right of the petitioners here, we think the error into which the learned surrogate has fallen is in formulating the question for determination, and in not noting the distinction between a discretionary and an imperative power of sale. He made the right of a creditor to a sale of the real estate under the statute to depend upon the question whether the power of sale in the will could be exercised for the payment of debts. We think the more correct expression to be, that the question for determina-was whether there is a power of sale in the will which must be exercised for the payment of debts. And that, therefore, though a power of sale may be general and unrestricted, which, if exercised, might render the proceeds of real estate, if an intention to that effect could be reasonably inferred from the will, subject to be applied to the payment of debts; such a discretionary power of sale, unexercised and in the absence of any provision in the will for the payment of debts, or an expression of intention from which- it could be inferred that the real estate must be sold for the payment thereof, is not sufficient to prevent creditors from enforcing payment of their debt by compelling a sale of the real estate where all the jurisdictional facts are shown, and all the proceedings have been regular and in accordance with the Code, as was concededly the position of the petitioners here.

We think that this view is sustained by the Code, which makes provision for such an application, except in cases where the decedent has provided a way of payment by charging the debt on the real property, or by giving bis executors a power of sale for the payment of debts that can be enforced. This is but saying that a disposition of real estate in the summary manner provided by the Code must be granted, unless the creditor is provided with another method of enforcing payment.

Having reached the conclusion that the power of sale under this will was not one for the benefit of creditors of the estate, or one which they could have enforced, it was a proper case for the application to the surrogate, which could only be denied upon a showing that the executors had sold the real estate, and were in funds sufficient to pay the debt.

We are of opinion,-therefore, that the order-of. the surrogate should be reversed, with costs, with leave to the executors to answer over, with a view of showing whether the proceeds from the one piece of property sold would leave sufficient assets in their hands out of which the debt could be paid, in which event the application should be denied; otherwise, granted.

YaN BrtjNt, P. J.:

While agreeing in the result of the within opinion I do not concur in much that is contained therein.

The learned surrogate says: It is only necessary to consider one question, viz., whether there is a power of sale in the will which could be exercised for the payment of debt.” It seems to me that that is not the question, but it is, has this real estate been devised expressly charged with the payment of debts, not charged by implication or by operation of law, but expressly charged. Such is the pro" vision of section 2749 of the Code. Unless it has been so expressly charged this section gives the creditor the right to maintain this proceeding. In the case at bar the will contains no reference to debts, no direction to pay, hence, although there may be a legal obligation upon the part of the executors to pay, there is no charge of payment expressed in the will, hence the debts are not expressly charged with the payment of anything.

In re Juch referred to, the will expressly charged the executors with payment of debts, and it was held that all the assets of the estate there being a power of sale were charged with their payment a very different case from the one at bar.

Barrett, J.:

I concur upon the ground that the real estate was not charged by the testator with the payment of debts, and that the power of sale was discretionary and not imperative.

Order reversed, with costs, with leave to the executors to answer over with a view of showing whether the proceeds from the one piece of property sold would leave sufficient assets in their hands out of which the debt could be paid, in which event the application should be denied, otherwise granted.


author: O’BeibN, J.:

text:
      THE CITY OF PHILADELPHIA, Respondent, v. THE POSTAL TELEGRAPH CABLE COMPANY and Another, Appellants.

      Police power — an ordinance for regulating and inspecting telegraph poles and wires — a tax and license fee imposed, if reasonable, is valid — interstate commerce.

    The city of Philadelphia imposed a license fee and charges for the regulation and inspection of the poles and wires upon each telegraph pole and mile of wire of certain telegraph companies, which existed in the streets of the city, and brought an action to recover the same, in which a judgment was recovered against the companies.
    Upon an appeal by the companies from such judgment:

      Held, that the license fee and tax were valid.
    That the privilege granted by section 5263 of the United States Revised Statutes to telegraph companies to operate lines over a military or post road, did not exempt the company from taxation upon its property owned and used within a State.
    That such a tax was not a restraint upon instruments of interstate commerce and communication, nor did it conflict with the fourteenth amendment of the United States Constitution forbidding a State to deprive any person of life, liberty or property without due process of law, or to deny any person the equal protection of the laws.
    That regulations of such a nature were a proper exercise of the police power.
    That the regulations were imposed under that power and were not for revenue purposes, and that the methods and basis adopted by the State of Pennsylvania in matters of ordinary taxation did not apply and need not be followed.
    That whether the police power of regulation had been properly exercised by a city might he determined by considering whether the terms of the ordinance, and the charges imposed under it, were reasonable.
    That the evidence in this case tended to show that both were reasonable; and this being so the court would not interfere.
    Appeal by the defendants, the Postal Telegraph Cable Company and the Bankers and Merchants’ Telegraph Company, from a judgment of the Supreme Court, entered against them jointly and severally in the office of the clerk of the city and county of New York on the 20th day of July, 1892, for $14,677.44 damages, and $1,988.59 costs, after a tidal before a referee.

      S. S. Guernsey, for the appellants.

      William MeMiehael, for the respondent.

       Decided December, 1892,

   O’BeibN, J.:

This action was brought by the City of Philadelphia to recover several annual license fees and charges imposed by city ordinances upon each telegraph pole and mile of wire in the streets of Philadelphia. The defendants conceded that plaintiff has power and authority to make and prescribe Ordinances for the inspection and regulation of telegraph lines within the city limits, but deny that it has either power or authority to require the payment of any fee or charge therefor, or to charge for a license, or to make any special tax upon their property, or upon each pole or wire permitted within ihe city limits.

This restricts the contention to the question whether a charge for such regulation and inspection is valid, and whether such a charge is an interference with the interstate clause of the United States Constitution, or with the rights conferred on telegraph companies by the United States Revised Statutes (§ 5363) relating to telegraph companies and the post-office service.

The appellant contends that such a tax or claim is a restraint upon the instruments of interstate commerce and communication, which is placed solely in the hands of congress by the Constitution (art. 1, § 8, subs. 3, 18, U. S. Const.); that the United States Revised Statutes (§ 5263) grants to any telegraph company, complying with certain conditions, “ the right to construct, maintain and operate lines' of telegraph through and over any portion of the public domain of the United States, .over and along any of the military or post roads of the United States,” etc.; and that such a tax would impair and. destroy the right thus conferred.

In the case of Western Union Telegraph, Company v. Massachusetts (125 U. S., 530), where the question was as to the right of the State to impose a tax upon the property of a telegraph company within its limits, it was held: That the privilege conferred upon telegraph companies by the Hevised Statutes (§ 5263) carries with it no exemption from the ordinary burden of taxation in a State within which they may run or operate lines of telegraph.” And it was further held therein that a tax upon the property owned and used by the corporation within that State “ is not forbidden by the fact of the-acceptance on the part of the company of the rights conferred on telegraph companies by the Hevised Statutes (§ 5263), nor by the-commerce clause of the Constitution.” In the opinion of the court in that case it was said : “ While the State could not interfere by any specific statute to prevent a corporation from placing its lines along these post roads, or stop the use of them after they were placed there, nevertheless the company receiving the benefit of the laws of the State for the protection of its property and its-rights, is liable to be taxed upon its real or personal property as any other person would be. It never could have been intended by the-congress of the United States, in conferring upon a corporation of one State the authority to enter the territory of any other State and erect its poles and lines therein, to establish the proposition that such-a company owed no obedience to the laws of the State in which if thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support.” (See, also, American Rapid Tel. Co. v. Hess, 125 N. Y., 641.)

With respect to the question of interstate commerce urged by appellant as affecting the right of the city to impose the charges, we think the authorities are abundant to show that, whether the-charges in question come under the police or the taxing power, they do not offend against the interstate commerce clause. (Leloup v. Port of Mobile, 127 U. S., 640 ; Gibbons v. Ogden, 9 Wheat., 203; Railroad Co. v. Fuller, 17 Wall., 560; Robbins v. Shelby County Taxing Dist., 120 U. S., 489; W. U. Tel. Co. v. Pendleton, 122 id., 347.)

Appellants further claim that it offends against the United States Constitution, in that it conflicts with, the provision in the fourteenth amendment that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, is disposed of by the case of New York v. Squire (145 U. S., 175).

It will thus be seen that we agree with the conclusion reached by the referee “ that the State has power to impose taxes upon the property of such companies within the State under the laws of the State, and that' a municipality, under its delegated powers from the State, can impose all lawful burdens upon the property of such companies situated within its corporate limits. Therefore, if these license charges upon poles and wires within the city limits should be held or found to be legally imposed by the State, they would not be in conflict with the provisions of this act of congress; or if the municipality, under its delegated power of regulation ’ from the State or what is commonly known as £j>olice power,’ should be found to have the right to make such ordinances and levy such imposts upon the poles and wires within its corporate limits of a company operating an interstate line, such ordinances and charges would not be in conflict with the act, as being neither on the general business of the company or an interference with such interstate business.”

This view is consistent with the principle laid down in the case of Leloup v. Port of Mobile (supra), and kindred cases, which hold that the property of a telegraph company situated within a State may be taxed by the State as all other property is taxed, but its business of an interstate character cannot be thus taxed.” It was therein held that no State within which a telegraph company sees fit to ■establish an office can impose upon it a license tax or require it to take out a license for the transaction of its business ; that the telegraphic communications carried on between different States are interstate commerce and within the power of regulation conferred upon congress, free from the control of State regulations, except such as •are strictly of a police character.

A review, therefore, of the authorities will show that the true construction to be given to the Constitution of the United States, and the statutes passed relating to telegraph companies, are consistent with the right of the States to tax the property of corporations within their limits, and to subject them to regulations of a police character, and that the United States Constitution and statutes prohibit the States from placing any charge or tax upon business of an interstate character, or interfering with, obstructing or destroying the working or business of such federal agencies. The record makes clear the fact that the plaintiff in no way, by the charge made, attempted to impose a tax upon business of an interstate character. The appellant^ however, insists, if this conclusion should be reached, that the charge was, in effect, a tax which was illegally levied upon the property of the companies, contrary to the Constitution and laws of Pennsylvania, regulating the right and mode of taxation. In his argument he correctly presents the view which the courts of that State have adhered to in construing the method which should be adopted under the laws of that State in levying taxes, viz., upon an ad valorem principle, that is to say, that property is to be taxed at a uniform rate according to its value. If it had been shown that this was a tax, then there could be no question, but that this principle, not having been adhered to in levying the same would have rendered the charges in suit invalid.

¥e think, however, apart from the disclaimer of the respondent, it is clear that, in imposing the charge sought to be recovered in this action, the city of Philadelphia in no way intended to place a tax upon the business of the defendant companies, nor to impose a tax upon their property, but its claim is based upon its right, under police power, to levy such a charge.

The validity of license fees, or similar charges by a municipality under the police power, has been frequently asserted, and, so far as Pennsylvania and this State are concerned, the question must be regarded as settled in favor of their validity. As we have already endeavored to point out, charges thus imposed under the police power, and those imposed for revenue, proceed on an entirely different and distinct principle, and in cases where supposed police regulations come in question, the test must be whether the end in view is one within the regulative sphere, and whether the means are reasonably appropriate. An examination of the ordinances levying this charge, we think, will leave no room for misconstruction as to their true intent and purpose, showing clearly that such charges were for regulation, and not for revenue.

The ordinance of January 6, 1881, which was the first ordinance on the subject, begins as follows:

“AN ORDINANCE to regulate the erection and maintenance of telegraph poles in the corporate limits of the city of Philadelphia.
Whereas, Great inconvenience and annoyance have been occasioned to property owners by the placing of telegraph poles in front of their premises; and
Whereas, The lives and property of citizens traveling upon the public streets and highways have been imperiled by the erection and maintenance of inadequate or unsound telegraph poles thereon, so that it has become necessary to establish a system for the proper inspection of such poles and for the regulation of the erection and maintenance thereof.”

And the ordinance of March 80, 1883, begins as follows:

“An Ordinance to regulate the introduction and use of underground conduits, wires and cables for electrical conductors in the streets of Philadelphia,” etc.

These ordinances, and the additional fact proved in the case that all charges were removed from such wires as were placed under ground, will show that the object sought was not the raising of revenue, but the reimbursement to some extent of the expense made necessary to the municipality in discharging its duty in furtherance of the public safety and convenience, as well as its co-ordinate duty to the defendants of protecting their property, by a proper regulation and inspection of overhead wires.

So far as this State is concerned, the case of People v. Squire (107 N. Y., 593) is authority for the view “that regulations of the character provided for in said acts are strictly police regulations, such as are within the legitimate authority of the legislature to delegate the exercise thereof to municipal corporations. That the right to exercise this police power is a governmental function which cannot be alienated, surrendered or abridged by the legislature by any grant, contract or delegation whatsoever.”

So far as the State of Pennsylvania is concerned, the highest appellate court of that State has twice decided these very ordinances now brought in question to be valid. (Mutual Union Tel. Co. v. Phila. and W. U. Tel. Co. v. Phila., 22 W. N. Cases, 39; Chester v. Phila., Reading and Pottsville Tel. Co. [1892], Penn. S. C. Adv. Cases, 511; Allentown v. W. U. Tel. Co. [1892], id., 510.)

The description given in these cases of the condition of the streets confirm what the observation of every citizen makes evident, that lives and property can only be protected against the dangers threatened by overhead wires, by strict regulation and the most careful inspection. In addition, we are referred to the following cases in Pennsylvania, distinctly holding that the plaintiff has power to exercise police regulation over telegraph lines. [City of Phila. v. W. U. Tel. Co., 2 W. N. Cases, 455, 460, Southwark R. R. Co., v. Phila., 11 Wright, 321; Branson v. Phila., id., 332.)

It seems to us, therefore, that with the legal questions disposed of, all that remained was to determine whether the ordinances and the charges made were a proper exercise of the police power delegated to the plaintiff or possessed by it. And the referee is sustained by the cases to which he refers in his opinion, in holding that whether there has been a proper exercise by the municipality of this power of regulation is to be determined by a consideration of the reasonableness of the terms of the ordinance and of the charges imposed. This the referee proceeded to do.

As to the expense entailed upon the city of Philadelphia it was shown that in order to have it thorough and effective, it was deemed essential to require a morning report called an “ Electrical Report,” to be made by every policeman on duty at night, of whom there are 1,526' receiving a salary of two dollars and fifty cents a day. In addition it was shown that the appropriation for the police bureau in 1891 was over a million dollars, for the bureau of fire escapes over six hundred thousand and for the electrical bureau over one hundred and forty thousand dollars, and that these different bureaus were engaged and took part in enforcing the regulations and ordinances in question in the public interest. It was also given in testimony by the chief of the fire bureau that if the wires were put under ground there would be a saving of one fire station, whose expense annually is about the amount of the total charges on all the companies.

. Upon such testimony, having regard to the extensive area of a city like Philadelphia and the range of work and expense involved in the regulation of poles and wires, we think the referee was right in bolding that, contrasted with the large outlay made by the municipality, the amounts charged the defendants and sought to be recovered in this action are reasonable. Ve think that the Supreme ■Court (of Appeal) in the case of Allentown v. Western Union Telegraph Company (supra), in considering the particular charges in these ordinances, correctly defined the rule of law to be applied, viz.: “ The amount of the license fee in such cases rests with city •councils in the first instance, and only upon an abuse of their discretion is the court justified in interfering. We cannot say that ■discretion has been abused in this case or that the license fee is unreasonable.

It will thus be seen that we concur with the view taken by the referee as to the reasonableness of the charges imposed on the •defendants. Indeed, we might well have allowed this judgment to ¡stand upon the able opinion of the referee, which thoroughly discusses every question that has been presented upon this appeal. It would serve no useful purpose to go over the same ground, refer to "the same authorities and draw the same conclusions as the referee has done. Though the question in principle is an important one, we do not regard it as either novel or difficult. An examination of ■cases in the United States Supreme Court and in the highest appellate ■courts of this State and Pennsylvania supports the legal principle invoked by the plaintiff, and the evidence adduced in this case ■sustains the conclusion of the referee favorable to plaintiff’s right to recover.

In our opinion the judgment should be affirmed, with costs.

YaN BeuNT, P. J., and Baeeett, J., concurred.

Judgment affirmed, with costs.


author: O’Bbien, J.:'

text:
    FRANCENA B. PARTRIDGE, Respondent, v. DORÉ LYON, Appellant.

      Pwrty-wall — one owner cannot remove and rebuild the wall unless it is unsafe.

    Francena B. Partridge and Doré Lyon owned adjoining buildings, between which, there was a party-wall ninety-nine feet in length and sixty-five feet in height, which Partridge used to a depth of forty-five feet, while Lyon used the whole wall. Lyon, desiring to erect a new building, and deeming the party-wall, under the building laws of New York city, insufficient for such a building, was. proceeding to take down the entire wall when he was restrained by an injunction, in an action brought by Partridge, which forbade Lyon to interfere with, the wall, “ except to repair, strengthen or protect it.”
    Upon an appeal by Lyon from this injunction order:

      Held, that the order was properly granted.
    That where a party-wall had become ruinous one owner might repair it, although to do so might require that it be entirely rebuilt.
    That, unless thus dilapidated, no right existed in one owner to remove a party wall which was sufficient for the uses of the adjoining owner.
    That the defendant should not be permitted to tear down that portion of the wall not used by the plaintiff, because it was not shown that such removal and the building of a new wall would not be hurtful to the plaintiff.
    Appeal by the defendant, Doré Lyon,- from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 28th day of November, 1892, continuing a temporary injunction restraining the defendant from taking down a party-wall between the premises of the plaintiff and of the defendant, and restraining the latter from interfering with the wall in any manner, except to repair, strengthen and protect it.

      L. Laflin Kellogg, for the appellant.

      Jeroloman <& Arrowsmith, for the respondent.
   O’Bbien, J.:'

The plaintiff and defendant are owners of adjoining premises, upon which buildings are erected, the center wall being a party-wall. This wall is about ninety-nine feet in length by over sixty feet in height, and stands five inches on the plaintiff’s and eleven inches on the defendant’s land. The plaintiff' uses this wall to the extent of four stories in height and forty-five feet in depth ; the defendant uses the entire wall of about sixty-five feet in height and about ninety-nine feet in depth. The foundation of the wall goes down six feet and rests upon rock.

The defendant, who is about to erect a new building on his premises, claims that, under the building laws, for the building which he desires to erect he cannot use the present walls, the foundations being insufficient in depth, and that it is necessary, in order that the foundations may be placed to the proper depth, that he should be allowed to destroy temporarily, or to entirely remove, the present party-wall, and, after excavating the rock to the necessary distance, to erect a new wall in the place and stead of the old one. To justify the taking down of the entire wall defendant states that, to take down the rear and end walls of his building and the timber braces in between would render the party-wall unsafe for any purpose, and, therefore, that it would be mutually advantageous and more safe to remove the entire wall and rebuild it.

We do not understand that any serious question is presented, but that, for all practical purposes of the jilaintiff, the present wall is sufficient to support the building now erected. In addition (a contract of sale having been entered into by the plaintiff), the present wall is regarded as suitable for the purpose of permitting the erection of a factory, to which use it is to be devoted by those to whom the plaintiff has contracted to sell the property.

The defendant, in the exercise of what he regarded as his right, had taken down a portion of the wall, and was proceeding to remove the balance thereof, with a view of restoring it in the shape of a new wall on a deeper foundation, when prevented by the injunction, which was made permanent, and which required that he should be restrained from interfering in any way with the party-wall, except to repair, strengthen or protect it.”

Upon this appeal the defendant contends for the right to entirely remove the wall, provided it is done with a view to restoring the same. This, upon the claim that, as it will be necessary to have a deeper foundation to support a new building which he is about erecting, he can, without the consent of the plaintiff, in the exercise of a right, remove temporarily the wall supporting, the plaintiff’s building. We have been unable to find any authority to uphold any such claim.

"Where the question relates to a party-wall, which has become unfit to support the buildings or has become so dilapidated or dangerous that it should be repaired or removed, then, undoubtedly, the right exists on the part of one owner of the party-wall, without the consent, and even against the express opposition of his cotenant, to do whatever is necessary to put it in a safe and proper condition, even though this involved the removal of the entire wall. This principle has been recognized in several cases. Thus, in Campbell v. Mesier (4 Johns. Ch., 334), which is a case of a party-wall standing equally on two lots and which became ruinous, and which was pulled down and rebuilt higher than it was originally by the owner on one side against the will and in spite of the prohibition of the adjacent owner, it was held, not only that the plaintiff had such right in view of the condition of the wall, but that the adjacent owner was bound to contribute to the expense of the new wall, but not to the extra expense of making it higher than the old one.

The case of Brooks v. Curtis (50 N. Y., 639) holds that “adjoining proprietors have an easement in the land of the other covered by a party-wall, and the title of each owner is qualified by the easement to which the other is entitled. This easement includes the right to increase the height of the wall, provided such increase can be made without detriment to the strength of the wall or to the property of the adjacent owner. The party making the addition, however, does it at his peril. Tie must insure the safety of the work, and if injury results he is liable.”

While the latter case shows the extent to which one owner of a party-wall may be permitted to go in the use thereof, the former, which is referred to in the case of Brooks v. Curtis, shows that such right does not go to the extent of allowing the removal of the wall, except where the latter becomes ruinous, dangerous, or unfit, or unsuitable to support the existing buildings, in which case either of the owners of the party-wall would have the right to remove it for the purpose of restoring it by another. Or, as stated in Partridges. Gilbert (15 N. Y., 601), with respect to a party-wall: “Each grantee acquires an easement of supporting his building by means of the half of the wall belonging to his neighbor. This right exists so long as the wall continues to be sufficient for the purpose and the respective buildings remain in a condition to need and enjoy the support.” In this case one of tlie buildings supported became so dilapidated as to be unsafe and unfit for occupation ; it was shown that the removal of the front and rear walls of such building, with the floors and beams, would occasion the destruction of the whole wall; and it was held that the owner of such building may, upon reasonable notice to the tenant of the adjoining building, lawfully take down the whole wall, and if he occupy no unnecessary time in completing the work, and use proper care and skill in its execution, is not responsible to the tenant of the adjoining building for damages.

According to these authorities to which we have referred, the right to remove a party-wall is given only in cases where either the party-wall itself has become useless for practical purposes, or ruinous, or either building has become dilapidated or unsafe and the removal thereof would endanger the entire wall. In these instances the rebuilding of the wall becomes a necessity, and, if the person in removing and rebuilding the wall proceeds with care, he is not responsible for any injury or damages that may result to the^ owner of the adjoining property.

This view finds support in McAdam on Landlord and Tenant ([2d ed.], 559), wherein the rule, based upon several authorities, is thus stated : “ If the wall is intact and capable of yielding support to one owner, it cannot be taken down by the other, even though his building has been destroyed by fire and every part thereof except this wall rendered utterly useless. The wall itself must have become unsafe or useless or it cannot be interfered with to the injury of the other. But if the walls fall into a state of decay so that it becomes necessary to take them down and rebuild them, either party has the right to do so upon reasonable notice to the other, using such care and skill in the prosecution of the work as the circumstances may require. In other words, if the wall becomes ruinous and ceases to answer the purposes of support, the easement is at an end and each proprietor may build as he pleases upon his own land, without any obligation to accommodate the other.”

The converse of this .rule finds support in Maxwell v. East River Bank (3 Bosw., 146), wherein the 'judge writing the opinion, in speaking of the settled law as to the rights of owners of adjoining lots in a party-wall, says: “Neither can remove or do anything to. impair the stability or sufficiency of such wall, so long, at least, as. tbe buildings continue in a condition to subserve, in every substan-.- ■ tial respect, tbe uses for wbicb they were erected.”

It will thus be seen, by a review of tbe authorities, that none of ' them goes to tbe extent of upholding tbe appellant’s position, upon - tbe facts here presented, of talcing down and removing tbe entire ■ wall. For tbe purposes of tbe plaintiff’s building, and we do not - know that it is claimed but that, for tbe purposes of tbe present: building owned by tbe defendant, both of wbicb are supported by" tbe party-wall, tbe latter is a sufficient support. Notwithstanding, however, tbe plaintiff’s objection, and tbe fact appearing that tbe wall is by no means ruinous or useless, but, on tbe contrary, is entirely sufficient for plaintiff’s building, tbe defendant insists on tbe right to remove tbe entire wall because of bis desire to erect a new building of a different kind from that wbicb now finds support in tbe wall, and which new building would require a deeper foundation, to construct wbicb would make it expensive, unless he be allowed to take down tbe wall, and thereafter rebuild it again. This convenience or saving of expense to defendant is not sufficient to justify a destruction of tbe plaintiff’s rights. And, we. think, upon the facts here appearing, that so much of tbe injunction as prevented tbe defendant from removing tbe portion of the wall wbicb gives support to the plaintiff’s building, should be affirmed.

Appellant insists, however, that, though this be true, tbe injunction is too broad, and should be modified so as to permit tbe defendant to tear down tbe portion of tbe wall built for and used entirely' by the plaintiff. Defendant’s affidavits show that tbe wall is ninety-eight feet nine inches in length, and sixty-five feet in height; that of this the plaintiff uses a portion forty-five feet two inches in length for a four-story wall, and nineteen feet in tbe rear for a one-storv shed.

We should be inclined to adopt tbe view contended for by tbe appellant with respect to tbe modification of tbe injunction, were it made to appear that no injury would result to the plaintiff. This/ however, is not shown, but, on the contrary, tbe record discloses tbe fact that, under tbe building department rules, tbe length of tbe wall could not be more than eighty feet, instead of ninety-eight feet ■nine inches, which is its present length; and, in addition, the same ^ rules would require recesses for light and air to be built in connection with the defendant’s premises, and it does not appear but that such would be necessary in the portion of the wall not at present used by the plaintiff. It will thus be seen that a solid wall, such as at present exists, would not be restored, but a different kind of wall would have to be substituted. We do not think that the plaintiff, ¡under such circumstances, is obliged to submit to a removal of the ■party wall which extends beyond his building and which is at present not in use.

Our conclusion upon all the facts, therefore, is that the order was right and should be affirmed, with costs.

YaN BeuNT P. J., and Eollett, J., concurred.

Order affirmed, with costs.