text:
    ERNEST HAYE v. EDWIN R. ROBERTSON and SAMUEL WINTERNITZ.
    Before Moneill, Ch. J.
    I. COSTS. — BEFPBATE BILLS TO SEVEBAL SUCCESSFUL DEFENDANTS.
    1. Allowed in the first instance Toy whom.

      a. By the taxing officer only, subject to review by the Court.
    1. This although the case is one in which the allowance of costs rests in the discretion of the court, and the court upon deciding the case has given costs in general terms to each of several successful defendants.
    2. When separate bills should not be cilio wed by the taxing officer.

      a. Where the successful defendants appeared by the same attorney although they put in separate answers—but make the same defense.
    H. Application of above pbinciples.
    1. In an action against two defendants for the recovery of the possession of personal property, they appeared by the same attorney who put in separate answers for them, setting up however the same defenses in each answer. The issue was referred to a referee for trial who dismissed the complaint as to one of the defendants, and rendered judgment for the other that he have a return of the property with damages and his costs. The clerk taxed separate bills of costs. On review of his decision,
    Held,
    erroneous, and that but one bill could be allowed.
    Motion in the nature of an appeal from taxation oi costs by the clerk.
    This was an action to recover the possession of per sonal property alleged to have been wrongfully detained by the defendants.
    It was tried by a referee, who dismissed the complaint as to the defendant Eobertson, “with costs;” and rendered a separate judgment in favor of the defendant Winternitz, that he have a return of the property, with damages for the taking thereof in the action by the plaintiff, and also that he have costs.
    The defendants appeared by the same attorneys, putting in separate answers, each containing a general denial, one of the defendants also claimed a return of the property and damages for the detention.
    The clerk taxed a separate full bill of costs for each defendant.
    From which taxation the plaintiff appealed.

      Mr. J. K. Hill, for plaintiff.

      Messrs. Van Wyck & Green, for defendants.
   Monell, Ch. J.

The specific award of costs to each of the defendants by the referee, is supposed to have been authorized by section 306 of the Code. That section provides that, “in other actions costs may be allowed or not, in the discretion of the court. 2. In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.”

The preceding section 304 provided that costs shall be allowed of course to the plaintiff upon a recovery in the following cases.. . . “2. In an action to recover the possession of personal property.” And by section 305,” costs shall be allowed of course to the defendant in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.”

The decisions are conflicting in respect to the construction of these several sections. One in the court of appeals (Decker v. Gardner, 8 N. Y. 29), holding, in effect that the defendants are entitled to costs as of course; and others (Bulkley v. Smith, 1 Duer, 704 ; and Williams v. Horgan, 13 How. Pr. 138), that they are in the discretion of the court.

But as the referee awarded costs specifically to each of the defendants, it is not material in this case, which construction of the section is correct. If the case was within section 305, then the defendants must have costs of course. If it is within section 306, they were in the discretion of the referee.

It is necessary to refer to these sections, however, to determine the material question, whether the defendants are entitled each to a bill of costs, it not being disputed that one bill is allowable.

The general current of decision has been against taxing two bills, when the defendants have appeared and answered by the same attorney, unless the defenses are different (Walker v. Russell, 16 How. Pr. 91). In this case they were the same as the claim for the return of the property, was not necessarily a part of the pleadings, and would follow of course a verdict for the defendant, (2 R. S. 531, §§ 53, 54 ; Castellanos v. Banville, 2 Sandf. 690 ; Columb v. Galdwell, 1 Code N. S. 41; Bridgeport Iron Co. v. Wilson, 12 Abb. Pr. 209; S. C., 7 Bosw. 699; Stone v. Duffey, 3 Sandf. 661). And I am unable to find any case where the right to two bills, has, under such circumstances, been upheld. The construction by the courts of section 306, has not required that they should determine what costs, or how many bills, the defendants were entitled to tax, but merely, that in certain actions, costs were in the discretion of the court (see the cases of Bank of Attica v. Wolf, 18 How. Pr. 102 ; Wilklow v. Bell, Id. 397).

The court can not, under that section, determine what costs a defendant shall receive; nor whether there shall be one or more bills. Costs merely are awarded ; and then the taxing officer must decide, upon principles applicable to the question, what amount and what number of bills he will tax.

Therefore in this case the taxing officer was wrong in not following the current and clear weight of authority, that under the circumstances of the case, there should be but one bill of costs.

All that is meant by subd. 2 of section 306 is, that if one or more defendants succeed, he or they may, in the discretion of the court, have costs. It does not mean, nor can the court so award, that they shall or may have separate bills. t

One of the taxed bills must be disallowed.


source: Caselaw Access Project

author: Monell, Ch. J.

license: Public Domain

text:
    FREDERICK HOEFT et al v. EDMUND B. SEAMAN and JAMES M. THOMPSON.
    I. NAVIGABLE WATERS, authority over by STATE LEGISLATURE.
    1. It has power to make grants respecting them for private uses which do not impair their public use.

      a. Department op public docks.
    1. The act of the legislature creating this departmant is valid if no grant is made under it which will obstruct commerce,
    n. DEPARTMENT OF DOCKS.
    1. Power and authority over docks, basins, wharves, slips, PIERS, AND THE WATERS ADJACENT TO THE CITY OP NEW YORK.

      a. Lease of the use 'of a side of a pier and the waters adjacent thereto.

    1. Department has power to make such a lease giving the lessee ‘he entire and absolute use for private purposes and for his own emolument,

      PROVIDED,
    such use does not essentially interfere with or obstruct the public use, and entrenches upon no individual rights other than such as the corporation of the city and county of New York may have;
    and subject
    to such restrictions and regulations as Congress under its authority to regulate commerce may make.
    HI. HARBOR MASTERS AND CAPTAIN OF THE PORT.
    1. Powers oe.
    1. They are not absolute oi- arbitrary.

    2. They have no power to order the removal of vessels from the berths occupied by them except to make room for such others as require to be more immediately accommodated for the purpose of receiving or discharging their cargoes.

      a. What not sufficient to justify the exercise of power of removal.

    1. The fact that the harbor master knows of no other place for the landing of certain merchandise is not sufficient. It must appear that the place is, not may be, needed for some purpose connected with navigation or commerce.
    2. Injunction against.
    When the captain of the port and a harbor master order a removal in a case where the facts and circumstances do not justify or authorize the order, they will be restrained by injunction.

    IV. APPLICATION OF ABOVE PRINCIPLES.
    In May 1873, the commissioners of the department of docks gave the plaintiff a written permission to use the southerly side of a certain pier and the waters adjacent thereto for the business of a bathing establishment during the pleasure of the board. The lessee of the pier, consented to the use of the pier and slip by the plaintiff. The captain of the port and one of the harbor masters, by his direction, ordered the removal of the bath. The plaintiff brought an action against the captain of the port and the harbor master, and obtained preliminary injunction restraining the execution of the order, with an order requiring them to show cause why the same should not be made perpetual. On the return of the order to show cause, it not being established to the satisfaction of the judge either that the bath establishment occasioned such an interference with, or obstruction of navigation, as would render the grant given by the commissioners of the dock department void, or that any such immediate requirement or necessity of commerce existed as to justify the interference of the harbor master, the injunction was continued.

      Before Monell, Ch. J., at special term.
    Motion to continue an injunction.
    The plaintiffs are the owners of a floating bath known as “Hoeft’s Bath,” which is now, and for the last eight years has been moored in the waters of the East river, adjacent to, and immediately south of pier number fifty-five, East river, and is fastened to the pier.
    In May 1873, the commissioners of the department of docks gave the plaintiffs a written “permit” to use the lower or southerly side of the pier, and the waters adjacent thereto, for the business of a bathing establishment, during the pleasure of the board.
    The pier is leased, by whom it does not appear, to one Quimby, who has consented to the use of the pier and slip by the plaintiffs.
    The defendant Seaman is captain of the port, and the defendant Thompson one of the harbor masters of the city of New York, who, it is alleged, acting under the direction of the captain of the port, has ordered the removal of the bath, and has threatened to. use the necessary force to remove the same, if it is not removed by the plaintiffs.
    Upon these facts a temporary injunction was granted, restraining the defendants from interfering; with an order to show cause why the injunction should not be made permanent.
    The defendants, upon the return of the order, alleged that the bath house obstructed the use of the waters of the river for the purposes of commerce; and that, acting under authority of law, they had directed its removal.
    It was not alleged that at the time the order for removal was given, there was any impending necessity for it; or that there was any application for the immediate use of the slip by ships or other vessels, or for any other commercial purpose; the allegation in that ■regard being, that the vicinity of such pier has been the point or place, where large quantities of marble, imported from Italy and other foreign countries, has been discharged ; and that there is no other so suitable a place for its discharge. But it is not alleged that there was ■a ny occasion for its immediate or present use, for any purpose connected with the commerce of the river.
    The bath house occupies a space in the waters of the river of one hundred and ten by seventy' feet, and one end of the structure extends beyond the bulkhead some thirty feeti

      Mr. Albert Matthews, for plaintiffs.

      Mr. Horace M. Hastings, for defendants.
   Monell, Ch. J.

The space occupied by the plaintiffs for their bathing h ouse, under a “ permit, ” or license from the commissioners of the department of docks, is a part of the navigable waters of the Bast river. It lies below the low-water mark, and partly in the channel of the stream, and is used wholly for private emolument.

Such a use of a public navigable river would be a purpresture or public nuisance, unless authorized by law.

Section 99 of the act to reorganize the local government of the city of New York, as amended in 1871, declares that the department of docks shall have exclusive charge and control .... of all the wharf property belonging to the city, including all the wharves, piers, bulkheads and structures thereon, and waters adjacent thereto, and all the slips, basins, docks, water fronts, land under water, and the appurtenances, easements, uses, reversions and rights belonging thereto, which are now owned or possessed by the corporation. Such ■department also has the exclusive charge and control of the repairing, maintaining, leasing and protecting the property ; and is invested with the exclusive government and regulation of ad wharves, piers, bulkheads and structures thereon, and waters adjacent thereto, and all the basins, slips and docks with the land under water in said city, not owned by the corporation.

Under this most comprehensive and clearly defined authority in the dock commissioners, over the dock property of the city, which extends, as will be seen, over the slips, basins and adjacent waters, and includes as well, property owned and not owned by the city, the power of the commissioners, to grant leases and franchises, and to permit private uses of such slips, basins and adjacent waters, where such use does not essentially interfere with or obstruct the public use, cannot well be questioned.

All navigable streams belong to the public, and the State can not grant them to any private use that will impair the public use. Congress, under its authority to regulate commerce, may in furtherance of commerce, restrict, in some degree, the public use of navigable waters (State of Penh. v. Wheeling, &c. Bridge Co., 18 How. Pr. 421). But no such authority is reserved to the States (Gilman v. Philadelphia, 3 Wall. 713). A grant of a monopoly of the Hudson river, given to Robert R. Livingston, in 1798, was declared by the supreme court of the United States, to have been unconstitutional, as infringing the exclusive power of congress to regulate commerce (Gibbons v. Ogden, 9 Wheat. 1).

The authority of that case has since been uniformly recognized and followed; and grants by the State have been confined to such uses only, as do not impede the public use. Hence, in grants for the erection of bridges or other structures over or in navigable streams or waters, provision must be made for their construction in such manner, as not essentially to obstruct the common free navigation by the public (People v. Saratoga & Rens. R. R. Co., 15 Wend. 113 ; Penn. v. Wheeling, &c. Bridge Co., 13 How. Pr. 518 ; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70.)

The act of the legislature creating the department of docks is valid, if no grant is made under it which will obstruct commerce. The commissioners may regulate the use of the basins and slips, and may permit them to be used for private purposes, provided such use does not essentially impair the public use. There are no riparian rights to adjacent waters, and the public can complain only when its use is obstructed.

In Lansing v. Smith (4 Wend. 1), involving the Albany pier question, the chancellor says,( p. 21) “there can be no doubt of the right of the legislature to make grants, when they do not interfere with the vested rights of individuals. The right to navigate public waters of the State and to fish therein . . . are public rights, and not the private unalienable rights of each individual.”

But should the department grant the exclusive private use of slips or basins to a degree that would essentially interfere with the rights of the public; it would be a purpresture and indictable as a public nuisance (People v. Vanderbilt, 26 N. Y. 287; 28 Id. 396).

But within the restrictions mentioned the department, under the power to regulate the use of slips and basins, may lawfully permit their use for a private purpose. In one case (Hecker v. Balance Dock, 24 Wend. 215), the court even held that the corporation might direct the use of any particular slip to be appropriated exclusively to any particular craft or class of vessels.

Without, however, concurring in this perhaps extreme view, it is sufficient, if the appropriation to a private use, does not essentially interfere with the use for commerce.

The test, therefore, of a legislative grant of power over navigable waters, is whether it allows of any essential interference with the public use, and that is always a question of fact to be disposed of in the manner such questions are usually determined. If there is no such interference or obstruction of the public use, then a legislative grant of a private use is neither a purpresture nor a public nuisance.

Independently of this general principle, applicable to all navigable streams, the right and authority of the corporation to and over the wharves, piers, slips and basins, granted first by the ancient charters (Montgomerie, § 38), and since recognized and continued in all subsequent legislation, extends the jurisdiction of the city, over much of the adjacent waters, which at the present day reaches at least to the pier or bulkhead line (People v. Vanderbilt, 26 N. Y. 287).

It has not, I think, been doubted at any time, that within the space thus granted, the corporation has the most ample power to occupy and use it, and, as an incident or appurtenant, to grant to others the right to occupy and use it, to any extent that does not, at least, obstruct the free navigation of the river. The construction of piers, slips and basins are as essential to commerce as the water itself, and that which is so essential to commerce, can hardly be said to obstruct it.

The proofs presented upon this motion fail to satisfy me that the small space occupied by the plaintiff’s bath house can cause any material interference with, or obstruction of, the free and common use of the river by the public. Of course while such space is occupied it can not be used by others, and so far, it may be said, to obstruct the public use. But so it may be said of a bridge with its draw closed. If, however, it is provided with a sufficient draw, it is a lawful structure, notwithstanding it may, at times and to some extent, interrupt the public use of the stream (Renwick v. Moore, 3 Hill, 621).

Nevertheless, such use of the slip would constitute it a public.nuisance, if it were not sanctioned by the commissioners’ license. No person, without a grant, can permanently moor a floating structure in a public river. It would per se be a public nuisance (Hart v. Mayor, &c. of Albany, 9 Wend. 571.)

But assuming, as I must, that the grant or license to the plaintiffs is of a portion of the waters not needed for navigation or commerce (except perhaps in exceptional cases) or, in other words, a grant that does not and will not, essentially, interrupt or obstruct the free and common navigation of the river, it must follow, that the plaintiffs are lawfully in possession of the space they occupy, and can not be dispossessed, or disturbed in such possession, unless the grant or license from the dock commissioners is subject to a higher power lodged in the captain of the port and harbor masters.

That question I will now examine.

The powers of the last named officers are derived from acts of the legislature passed in 1862 and 1867.

The act of 1862 provides, in section 7, “ Each harbor master shall have power, within the district assigned to him to provide and assign suitable accommodations for all ships and vessels, and regulate them in the stations they are to occupy at the wharves or in the stream, and to remove from time to time such vessels, as are not employed in receiving or discharging'their cargoes, to make room for such others as require to be more immediately accommodated for the purpose of receiving or discharging their cargoes.”

The distinctive duty of the captain of the port is of a supervisory nature. He may make rules and regulations, and give directions in aid and for the government of the harbor masters ; but the power of all such officers is derived chiefly, if not wholly from the act of 1862.

Under that act, it is claimed, not only that the harbor masters have the exclusive control over the slips and basins and other navigable parts of the river, but that they are the ultimate arbiters of the manner in, and purpose for which, they may be used.

If a power so comprehensive could be claimed for the harbor masters, there would be a manifest inconsistency in the provisions of the statutes ; and as the city claim under the last statute (act of 1871), it would lead to the conclusion that the legislature intended to repeal the former. The saving clause, however, is found in the act of 1871, namely, that the powers and duties therein conferred upon the dock commissioners, shall not affect the powers of the harbor masters as now defined by law.

The powers and duties of the several officials are wholly distinct and separate. Those of the dock commissioners, I have already defined.

The duties of the harbor masters are of a conservative nature, and are only, but indispensably, necessary wherever an extensive commerce is carried on. Without some power of control over the arrival and departure of vessels, and their moorage when in port, disorder and confusion would be the consequence. To regulate this, and to prevent disorder, these officials are clothed by the legislature with a constabulary or police power, and made quasi conservators of the peace.

They are, however, officers of limited jurisdiction, and can exercise such powers only as are expressly given, or which can necessarily be implied from such as are expressly given.

Such express powers, as defined by the statutes, are, to provide and assign suitable accommodations for ships and vessels, and to remove such as are not employed in receiving or discharging cargo, and to make room for such others, as require to be more immediately-accommodated for the purpose of receiving or discharging cargo. The object of all this, is to prevent over ■ crowding, confusion and disorder, and to secure just and equal right in the use of the harbor.

To tliis extent the harbor masters have jurisdiction. They may regulate the time and manner that ships and vessels shall occupy slips and basins for purposes of commerce, and determine between the conflicting claims of vessels, and as to their respective rights and priorities to discharge or receive their cargoes.

These duties do not at all conflict with the powers of the dock commissioners, and the two can move along in entire harmony.

The harbor masters have a large discretion in assigning the use of the slips to vessels, and in determining the time and manner of using. But it is not an absolute or arbitrary power, which may be exerted without regard to the exigencies of the time and place. Like all discretionary powers, it must have a foundation of propriety or necessity to rest upon.

While they may lawfully prevent disorder and confusion, and, in the language of the act, remove such vessels as are not employed in receiving or discharging cargo, I can not concede to them the right to make such removal, except for the purpose, also specified in the act, of making room for such others as require to be more immediately accommodated for the purpose of receiving or discharging their cargoes.

In the case of Adams v. Farmer (1 E. D. Smith, 588), the common pleas held, that as the power was general, it was not limited to cases where other vessels required to be immediately accommodated in receiving or discharging cargo. But that decision can not be reconciled with other decisions defining the extent of discretionary powers.

In Vanderbilt v. Adams (7 Cow. 349), the harbor piaster had ordered the Thistle, lying at a wharf on the ¡North river, to move a certain distance in order to give a berth to an other vessel called the Legislator. The court say, “it will be observed that no question is-raised as to the right of the steamboat Legislator to be at this wharf, had there been no other vessel occupying-it. The ground of the defense is, that the law conferred no authority to interfere at all. The owner of the Thistle-having the exclusive right of deciding whether to-remove or not, in order to give place to another vessel. The right assumed {by the harbor masters) under the law would not be upheld, if exerted beyond what may be considered a necessary police regulation.”

The board of health is supposed to be invested with large discretionary powers; and by statute, was required to cause all putrid or unsound meat, dead animals, &c., found in any street or other place, to be forthwith removed beyond the limits of the city. Under that statute, this court held, in an action against an inspector for removing dead hogs (Underwood v. Greer, 3 Robt. 86), that the discretion, and therefore the judgment, of the officials, was absolute, and he was not responsible for any error of judgment. But the court of appeals, reversing this court (42 N. Y. 140), held otherwise. That while it was conceded that the officer in the discharge of his duties is clothed with a judicial discretion, yet he is an officer of a limited and special jurisdiction, and when in any given case his power is challenged, he must prove some facts invoking or tending to invoke the exercise of his discretion.

The general railroad act was supposed to confide-absolutely to the directors the right to determine what lands were required for the purposes of the road. But in Rensselaer & Saratoga R. R. Co. v. Davis (43 N. Y. 137), the court held, that the determination of the directors was conclusive, and that the court is to decide upon the application, the question as to the necessity and extent of the appropriation.

The proposition to be deduced from these cases is that when a power of any kind is to be exercised, it must have, to uphold and justify its exercise, the support of sufficient facts.

Under this view of the case, before the harbor master can direct the removal of a ship or vessel, there must appear to be some necessity for xit., It is not enough, in the language of one of the defendants, that he knows of no other place for the landing of certain merchandise. It must be shown that the place is, not may be, needed for some purpose connected with navigation or commerce. And until such necessity arises, the officer is powerless to lawfully interfere.

In entrenching, as it may with some plausibility be claimed, upon the vested rights of the city, the legislature must be understood to have intended nothing more than is clearly expressed by the statute ; and, therefore to have merely invested the harbor masters with certain prescribed police powers and duties, in no way interfering with the proprietership of the city. If it is successfully claimed to be otherwise, then the act would be open to the constitutional objection of taking vested rights without compensation.

But without pursuing the subject further, I am of opinion, that if the space occupied by the bath house is not needed for commerce, and the occupancy of it does not essentially interfere with the free and common use of the river for navigation, the permission to use it was within the power of the State to- grant. That such grant was made to the department of docks, and its written permission to the plaintiffs gave them a lawful possession, of which they can be deprived only, by its being established, either, that it is an essential interference with navigation, or that a necessity exists'for its immediate use for the purposes of commerce.

The facts upon which, this case, under the view which I have taken, must turn, namely, whether there is such an interference or obstruction of navigation, as would render the grant void ; or whether some immediate requirement or necesssify of commerce exists, to justify the interference of the harbor master, are questions of fact and must be determined before the appropriate judgment can be pronounced.

It results from these views, that the plaintiffs are in lawful possession, and can not be disturbed, until it appears, that the space they occupy obstructs the public use, or is needed for purposes of commerce.

As the case now stands, I am justified in retaining the injunction until the trial.


text:
    J. LETITIA PHILLIPS v. GEORGE A. WICKS, and another.
    Before Monell, Ch. J., at special term.
    I. AGREEMENT IN RELATION TO THE SUBJECT OF A PENDING ACTION.
    1. HOW BKBOBCED.

      a. By action only and not by motion.*

    Motion to set aside a judgnent.
    The plaintiff obtained a judgment against Wicks and wife, which upon appeal was affirmed as to Wicks, and reversed as to his wife; and to the latter a new trial was granted.

      * Attobheys.—The learned judge, in Ms opinion expresses Ms views as to how the agreements of attorneys should be evidenced, as to their authority to vacate judgments, and as to the revocation and suspension of their authority by death ; but the only point decided is that contained in the head note.

      It is now alleged that thereafter an agreement by parol was entered into between the attorneys of the respective parties, that the action against the wife should be discontinued, the judgment against Wicks set aside, and a new trial had against him, he executing, with approved sureties, and delivering to the plaintiff a bond conditioned to pay any judgment, which, upon such new ri al, might be recovered against him.
    Before the agreement was executed the plaintiff's attorney died.
    The motion is in effect to require the plaintiff to perform and fulfill such agreement.

      Steel & Boyd, for the motion.

      J. S. Smith, opposed.
   Monell, Ch. J.

It is very clear, I think, that the relief sought for by this motion, if it can be obtained at all, can be obtained only by action.

In a proper case, with all the parties before the court, an agreement between the parties to an action, made after its commencement, in respect to the subject of it, may very properly be enforced. Especially, if by reason of the agreement, and in reliance upon it, one party has gained an advantage, or the other has lost a benefit. These, however, are too grave questions to be disposed of upon a mere motion.

But there are several reasons for holding that the defendant can not obtain the relief even by action.

First. The agreement was not in writing. It has always been a standing rule of court (Bule 13), that agreements between attorneys shall be in writing, and the courts will not give effect to parol agreements.

Second. The terms of the agreement were not within the scope of the attorney’s authority. It is not alleged that the authority of the plaintiff’s attorney was more than his general retainer. That did not authorize his vacating the judgment (Quinn v. Lloyd, 7 Robt.. 538).

Third. Even although the general retainer furnished authority, the death of the attorney before the agreement was executed, was a revocation of such authority, or at least a suspension of it until a new attorney was was appointed.

But for the first stated reason, the motion must be denied, with costs.


text:
    JOHN McDONALD v. SARAH JAMES, and another.
    I. INJUNCTION.—PRELIMINARY, WITH ORDER TO SHOW CAUSE.
    1. Undertaking on.

      a. Counsel fees when not damages under.

    Where, on the return of the order to ¿how cause- no cause was shown, and the injunction was continued by the order of the court, and no motion was made by the defendants to open this last order or to vacate the injunction.
    Held,
    that counsel fees could not be allowed as damages recoverable under the undertaking.

      This, although

    the action was tried, and as a result of the trial it was determined that the plaintiff was not entitled to the injunction.
    H. INJUNCTION BY THIRD PARTY RESTRAINING A LANDLORD FROM PROSECUTING SUMMARY PROCEEDINGS AGAINST HIS TENANTS FOR THE POSSESSION OF PREMISES.

      Before Monell, Oh. J., at special term.
    1. Undertaking on.

      a. What not recoverable as damages under.

    1. The value of the use and occupation during the continuance of the injunction is not.

      b. What is recoverable.

      %. Loss of rent by reason of the tenants being irresponsible, or by reason of the premises being unoccupied, also rents collected by the plaintiff.
    1. Aldowanoes against such damages. Payments for repairs or improvements cannot be allowed to the plaintiff.

      Unless,

    they have been allowed by him to tenants and deducted from the rents received by him.
    Motion to confirm the report of a referee to whom it was referred to ascertain damages.
    The plaintiff alleged that he was the owner in fee of certain premises in possession of his tenants ; and that the defendants, claiming to be the owners of the same premises, had instituted a proceeding, before one of the civil justices of the city, for a warrant to remove such tenants from said premises, alleging them to be the tenants of said defendants.
    tJpon these facts the plaintiff procured a temporary injunction restraining the further prosecution of such proceeding, with an order to show cause, returnable at a short day, why the injunction should not be continued until the trial of the action, and gave the usual undertaking.
    Eo cause was shown by the defendants, and the injunction was continued by the order of the court.
    Upon the trial of the action it was determined that the plaintiff was not entitled to the injunction, and the complaint was dismissed, with costs.
    A reference was ordered to ascertain the damages of the defendants by reason of the injunction.

      Exceptions by the plaintiff to the referee’s report were filed and brought to a hearing, with the motion to confirm the report.

      Mr. McDonald in person, and Mr. Quackenbush, for the plaintiff.

      Mr. James, for defendants.
   Monell, Ch. J.

It distinctly appears that no attempt or effort was made by the defendants, to obtain a vacation of the injunction, until the trial of the cause.

The injunction contained an order requiring the defendants to show cause, six days thereafter, why it should not be continued during the pendency of the action. Eo cause was shown, and the injunction was continued by the order of the court.

The undertaking was required upon an ex parte application for the injunction, and covered such damages as the defendants might sustain, until they could, in the usual course and practice of the court, move to have it dissolved. When the court, upon the order to show cause, continued the injunction, it became a new proceeding, and it can not be claimed that the counsel fees paid or incurred by the defendants for the trial of the action, were paid or incurred by reason of the preliminary injunction, but they were incurred by reason of the injunction which was continued by the order of the court.

In Andrews v. Glenville Woolen Co. (50 N. Y. 282), a motion was made to dissolve the injunction, which was denied, but not upon the merits, the court declining to inquire into the merits until the final hearing. The defendant, had, therefore, to go to trial, and the court in allowing, as damages, the counsel fees for the trial, put it upon the ground that the defendant had made the proper effort to dissolve the injunction before the trial. But the court declining to hear the motion, a trial was necessary, not merely to dispose of the issues, hut to get rid of the injunction. The court say : “ Until the cause should be tried the defendant was obliged to submit to the restraint. It was placed in that position by the order of the court, and not by its own laches.” And in Hovey v. The Rubber Tip Pencil Co. (Id. 335), counsel fees on the trial were expressly disallowed, on the ground that the defendant had not moved to dissolve the injunction.

These decisions are fatal to the allowance of any counsel fees in this case, as none appear to have been incurred, by reason of the preliminary or temporary injunction.

I think the referee fell into another error in estimat- ■ ing the other damages claimed by the defendants. It seems he ascertained what was the fair value for the use and occupation of the premises during the time the defendants were restrained, and made that the basis for ascertaining the damages.

The defendants were,restrained from interfering with the possession and from proceeding to recover the possession of the premises. They had alleged in such proceeding, that the persons in possession were their tenants ; and they sought to remove them from the premises. The court found them to be such tenants .of the defendants.

Such relation of landlord and tenant did not cease with, the institution of the injunction suit, nor with the institution of the proceeding before the civil magistrate, but it continued and subsisted between the defendants and the persons in possession at all times, from the commencement of the action tp the dissolution of the injunction : so that upon such dissolution the landlord was restored to all the rights and remedies in respect to her tenants, which had been suspended by the injunction. Among them the injunction had suspended the collection of rent, but it neither canceled the leases nor defeated or annulled the tenants covenant to pay-rent, and therefore immediately upon the suspension being removed, the landlord could have proceeded to enforce the covenant. And she can still do so. Even if she had procured and executed a warrant of removal, her remedy for rent to the time of such removal, remained (Hinsdale v. White, 6 Hill, 507 ; McKeon v. Whitney, 3 Denio, 453).

The inquiry therefore should be, what rent has the defendant lost by reason of the injunction ?

The answer will depend upon a variety of facts. If the tenants were and are responsible, then their covenant can be enforced and the rent recovered. Then there would be no actual loss. If however, they had become irresponsible or had abandoned the premises pending on the injunction ; or the premises or any part of them were unoccupied, and might have been rented, there might be a loss of rent to the defendant.

In short, the loss must be ascertained in view of the responsibility of the parties and their several remedies, and also in view of the condition of the premises and the landlord’s ability to have rented or collected rent while the injunction continued, which he is now unable to collect by reason of the irresponsibility of the tenants, or' by reason of the premises being unoccupied. For such loss the defendants should recover, as the legitimate damages sustained by reason of the injunction.

If the plaintiff, pending the action, collected any rent of the tenants, the amount so collected will form a part of the damages.

The plaintiff is not entitled to any allowance or deduction for repairs or improvements, unless they have been allowed by him to the tenants, and deducted from the rent received by him.

It must be referred back to the referee to disallow the counsel fees, and to re-estimate the item of damages growing out of the loss of rent, upon the basis stated in this opinion.

In all other respects, the report of the referee is undisturbed and confirmed.


text:
    BENJAMIN L. LUDINGTON v. SARAH E. SLAUSON, and others.
    Before Monell, Oh. J., at special term,
    1874.
    I. PLEADINGS.—DEMURRER TO REPLY.
    Action to foreclose a mortgage. The answer set up as a counterclaim damages by reason of fraudulent representations, that the premises were unincumbered, and by reason of the breach of the covenant against incumbrances contained in the deed, and set forth the incumbrances by reason of the existence of which it was claimed that defendant was damaged. The reply, although containing much irrelevant matter, denied the existence of one of the alleged incumbrances, and also denied the alleged fraudulent representations.
    HELD

      not demiurahle for insufficiency.

    Demurrer to a reply.
    The action is to foreclose a mortgage.
    The defendants, by separate answers, set up a counterclaim, to which the plaintiff served a reply.
    The defendants demurred to the reply for insufficiency.

      Mr. H. H. Anderson, for the demurrer.

      Mr. G. W. Lord, opposed,
   Monell, Ch. J.

It is clear, I think, that the counter-claim set up in the answer, arises upon two different and perfectly inconsistent causes of action.

It is alleged, that prior to the execution and delivery of the deed, the plaintiff “ stated and represented” to the defendant Slauson, that the premises were free and clear of all incumbrances and other charges. That relying upon such statements and representations, she agreed to purchase the premises. That the deed contains a covenant against incumbrances, &c. That such statements were and are untrue, and were known to the plaintiff to be untrue ; and were fraudulently made, with the intent and design to cheat and defraud the defendant. Then follows a statement of the alleged incumbrances on the property. The demand for affirmative relief is, “ that by reason of the aforesaid breach of the covenants of the plaintiff; and by reason of his aforesaid fraud, &c.,” the defendant has been damaged five thousand dollars.

The sufficiency of the facts alleged as constituting a defense, at least so far as respects the defendant Watkins, is not now before me. The plaintiff, by taking issue upon it, has made it, probably, a material issue (Livingston v. Miller, 8 N. Y. 283).

The first paragraph of the reply denies the existence of one of the alleged incumbrances. That would be a defense to either cause of action, and is properly pleaded. It is so admitted, and is not demurred to.

The second paragraph of the reply is open to the objection that it contains much irrelevant matter, which, I think, would upon motion, be stricken out. But it also contains a denial of the alleged fraudulent representations. That denial, if sustained, would be a complete defense to so much or such part of the counter-claim as rests upon the fraud. And as the fraud is a substantial part of the counter-claim, the denial of such fraud is properly pleaded.

If the breach of the covenant against incumbrances was alone relied on, the facts alleged in that part of the reply demurred to would not be sufficient to defeat a recovery. But the fraud alsb is relied upon.

The irrelevant matter may be stricken out on motion, but can not be reached by a demurrer, if any part of the pleading is otherwise sufficient (Cobb v. Frazee, 4 How. Pr. 413 ; Welch v. Hazelton, 14 Id. 97.)

The plaintiff must have judgment upon the demurrer, with costs.


text:
    SARAH BOND v. SUSAN McNIFF, and others.
    I. McNIFF, PHILIP.—CONSTRUCTION OP WILL OP.
    1. Buie in Shelly’s case applied.

    H. PEE.—WHAT WORDS NECESSARY TO CREATE, PRIOR TO THE REVISED STATUTES.
    1. Express words of inheritance not necessa/ry.

    2. Intention, but there must be contained in the will words and expressions from which an intention to devise a fee can be ascertained.

      a. Thus the expressly devising of one moiety to A. (the widow) for life, and of the other moiety to B. (the son) coupled with the expression of a wish that the moiety devised to A. should on her decease become the joint property of ■the testator’s son (B.) and daughter (C.) and a clause willing and desiring that neither moiety should be sold or disposed of in any way, but pass to the heirs of his children (B. and 0.) unincumbered, will pass to B. and C. as tenants in common, the fee of the moiety devised to A. for life, subject to her life estate, and to B. the fee in the other moiety.
    1. A further clause in the will, that in case one of the children should die without issue, his or her share of the property should pass to the survivor, and should both die without issue then the property to pass to the testator’s nearest heirs, serves to confirm, the remit derived from other parts of the will, that the intention of the testator was that his children should take a fee.
    Before Monell, Oh. J., at February special term,
    1874.
    HI. DOWER ELECTION.
    I. What necessary to put a widow to election.
    1. An express direction that the provisions in her favor contained in the will are in lieu of dower.
    OB,
    2. Provisions wholly inconsistent with her claim of dower in the particular portion of the estate as to which it is made.

      a. What not inconsistent.
    1. A devise by a testator to his widow of the/ree and uninterrupted use and occupation of all his real and personal property until his youngest child shall have arrived at the age of twenty-one years is not inconsistent.

    IV. PARTITION.—Interests and bights in land determinable
    ON THE HAPPENING OF EVENTS.
    1. Value of such rights and interest in money cam, he ascertained. Instance—the value in money of a right to use and occupy until a certain minor shall arrive at twenty-one years of age can be ascertained.
    Action for the partition of a lot of land in the city of New York, tried by the court without a jury.
    The complaint alleged the seizin of the parties, as tenants in common, in the following proportions :—viz. The plaintiff one equal undivided moiety or half part, and the defendants, except Susan McMff, each one equal undivided twelfth part, subject to the free and uninterrupted use thereof, by the said Susan.
    The defendants, by their answer, denied the seizin of the plaintiff to one half of the premises, and averred that such seizin was of one-quarter or fourth part thereof only, and they claimed to be seized of the remaining three fourths thereof.

      Philip McMff, the elder, died in March, 1828, seized in fee of the lot in question, leaving a last will, wherein he devised as follows :—
    “To my well-beloved wife Charlotte, I leave and bequeath the one-half of my house and lot, Ho. 336 J-rand-street, in the city, during her natural life, aud .ip other half of said house and lot, I leave and bequeath to' my well-beloved son Philip, with my watch. And at the decease of my wife, the half of the house in Grand-street, which I now leave to her, it is my wish it should then become the joint property of my son and daughter, and it is my will and desire that none of the above mentioned property should be sold or disposed of in any way, but pass to the heirs of my children unincumbered.....
    “And in case one of my children should die without issue, their share of the property to pass to the survivor, and should both die without issue, my property to pass toiny nearest heir.”
    The testator left him surviving his widow Charlotte, and two children—the plaintiff and Philip.
    Charlotte, the widow, died in 1846.
    The son Philip died in July 1872, leaving him surviving his widow, the defendant Susan McMff, and six children, namely, the defendants Parchina, Charles K., Lothian M., Philip, William H,, and Mary M
    He also left a last will, wherein he devised unto the defendant Susan McMff, “the free and uninterrupted use and occupation of all his real and personal property, until his youngest child shall have arrived at the age of twenty-one years,” but without disposing of, or devising his estate, to his children or otherwise.
    They therefore claim all the estate, of which Philip, the younger, died seized, as his heirs at law.

      Mr. L. Johnson, and Albert Matthews, for plaintiff.

      Mr. H. Daily, Jr., for defendant Susan McNiff.

      Mr. Homer Nelson, for adult defendant.

      Mr. A. T. Ackert, guardian ad litem, for infant defendants in person.
   Monell, Ch. J.

The plaintiff claims, that as heir at law, of Philip McMff, the elder, she became seized in fee, upon the death of Charlotte, the widow, of one undivided half of the moiety devised to her for life; and as the devise to Philip the younger being without word s of inheritance, conveyed to him, but a life estate in the remaining half, it upon his death, passed to the heirs at law of Philip the elder, namely the plaintiff, and the children of Philip the younger.

The devise to Philip, of the half of the Grand-street lot, and the devise over of the other half, after the death of the widow, being without words of inheritance, the devises, as the law existed before the Revised Statutes, took but a life estate, unless an intention to devise an estate in fee, can be ascertained from other-parts of the will.

The rule which required words of limitation to create a fee, was subservient, to a certain extent, to the intention of the testator, which was to be derived from the whole will. The word “heirs,” or other express words of inheritance, were not required to convey a fee. Other words, denoting an intention to pass the whole interest of the testator, would convey an estate of inheritance (4 Kent Com. 437), and instances stated in his commentaries are, a devise “ to him and his assigns forever,” or, “to him and his blood,” or, “to him and his successors,” and like expressions, may create a fee.

Assuming, therefore, that under the will, Philip the younger took but a life estate in the moiety devised to him, and he, jointly with the plaintiff, a similar estate, in the moiety devised for life to the widow, then, npon the death of Philip (the younger), his estate, which was an undivided half of the whole, descended to his heirs at law, the defendants in this action, and the other half belongs to the plaintiff.

But I am of opinion that Philip, the younger, took an estate in fee, in the moiety devised to him, and that he and the plaintiff also took an estate in fee, jointly as tenants in common, in the other moiety, upon the death of the widow.

An intention to create such an estate in the devisees, is determinable by the will, npon the application of well known rules of construction.

The devise of a moiety to the widow, is expressly for life, and indicates an intention not to create any greater estate in her. It is followed, in the same paragraph, by the devise of the other moiety to Philip. The testator makes no other expressed disposition of the moiety devised to Philip, but expressly disposes of the other moiety, after the decease of his widow ; and declares it to be his wish that such moiety should, upon his death, become the joint property of his son and daughter.

Had the testator gone no further, then, for the want of words of inheritance, the devisees would have taken but a life estate. But the testator proceeds to add words of inheritance, and says, '‘and it is my will and desire, that none of the above mentioned property-should be sold or disposed .of in any way, but pass to the heirs of my children unincumbered.”

These, it seems to me, are sufficient words of inheritance to carry a fee.

The rule in Shelley’s case (1 Coke, 104, a.), is, that where a freehold estate is limited, mediately or immediately, to the heirs in fee, the heirs are words of limitation of the estate, and not words of purchase. Or, as stated by Chancellor Kent (4 Kent Com. 214), the words heirs or heirs of the booty, create a remainder in fee, or tail, which the law, to prevent an abeyance, vests in the ancestor, who is tenant for life, and by conjunction of the two estates, he becomes tenant in fee.

The expressed desire of the testator, that none of the-property should be sold, but that it should all pass to the heirs of his children, applies to, and affects alike, the devise of the moiety to Philip, and the devise over of the other moiety, to Philip and his sister; and under the rule in Shelley’s case, would carry a fee to the respective devisees, the limitation to the heirs general of the testator’s two (and only) children, being an enlargement of their life estate into an absolute fee.

The clause in question in the will, is, therefore, to be-read, as if the testator devised the one moiety to his son for life, and then to his heirs ; and the other moiety, on the death of the widow, to the plaintiff and Philip, as. tenants in common, for life, and then to their heirs; and heirs, as here used, are words of limitation and not of purchase.

Several cases in our courts give a like effect to similar devises.

In Schoonmaker v. Sheely (3 Denio, 485 ; affirming same case, 3 Hill, 165), the devise was to his son Benjamin “ during his natural life, and after his decease to his heirs and their heirs and assigns forever.” The-question was elaborately examined in the supreme court, and in the court of errors, and it was held, that by force of the rule in Shelley’s case, the devise over to the heirs, enlarged the life estate into a fee.

And in Brown v. Lyon (6 N. Y. 419), the devise-was to his daughter “ Olive during her life, and then to descend to the heirs of her body, and' to their heirs, and assigns forever,” and it was held, that by force of ' the word heirs as a limitation over, the tenant for life took a fee.

The rule in Shelley’s case, in an earlier case (Brant v. Provost, 2 J. Cas. 384), was applied to a grant. The conveyance granted the premises to the use of Helena for her life, and then to the heirs of her body. These latter words were held to be words of limitation, creating a fee in the grantee of the life estate.

The rule, however, is not of universal application. There may be superadded words of explanation, indicating another species of heirs, and thereby devising by implication alesser estate (Walker v. Snow, Palm. 359; Lisle v. Gray, T. Raym. 315).

Thus in Archer’s case (1 Coke, 66 b.), the estate was devised for life, and then to the next heir male of his body, and to the heirs male of the body of such next heir male. This was said to be forming a new stock or root of inheritance in the first male heir, and excluding all the other issue male ; and it was held, that the rule was inapplicable.

'The rule itself, and the exceptions to its application, is well stated by Savage, Oh. J., in Rogers v. Rogers, (3 Wend. 503, 511), that when the ancestor takes an estate of freehold with remainder to his heirs, or heirs of his body, the word "heirs,” is a word of limitation of the estate, and not of purchase ; that is, in other words, that such remainder vests in the ancestor himself, and the heir, when he takes, shall take by descent from him, and not as a purchaser. This rule may give way to the manifest intention of the testator, provided that intent be so fully expressed, as to leave no doubt whether it was his intent or not. In that case the devise was to A. B. for life, and after his decease, to the children of his body, followed by an habendum to have and to hold to A. B. for and during his natural life, and after his decease to the children of his body and to their heirs and assigns for ever. And it was held that the habendum controlled the rule of law, and manifested an intention in the testator, of creating a life estate only in A. B., with a fee in the children of his body.

In commenting on this case, Senator Hand says, in Schoonmaker v. Sheely (Ubi sup.), to take a case ont of the rale, some more expressive term must be used than the word “ heirs,” as in Rogers v. Rogers, when the devise over was to the children of his body, an expression which by no means includes the whole line of succession.

And so of Tanner v. Livingston, (12 Wend. 83) the devise over was to the heirs male of the husband and wife, the first takers, and consequently only to a particular class or portion of the heirs, and not descendible to the general heirs.

The cases I have cited were devises for life and remainder to the heirs of the devisee; and under the application of the rule in Shelley’s case,they were held to convey a fee by implication of law.

But it may be said that those cases differ from the one under consideration, in that the testator here has not expressly devised for life, nor is there an express devise over to the heirs.

In respect to the first feature, the difference is immaterial. The same estate passed under this will, that would have passed by an express devise for life. When the will was made, the omission of words of inheritance as a general rule of law, limited the estate to the life of the devisee. And the testator is presumed to have used, or to have omitted to use, words with reference to the existing law, and if he intended to give a life estate only, he accomplished his object as effectually as if he had so expressed it in his will.

In respect to the second point of difference, it is true that it is not an express devise to ‘ ‘ my son and daughter,” and to their heirs, but the interest is conveyed by a wish, that upon the death of his widow, it should become their joint property.

Ho one can doubt that these words are sufficient to convey an estate of some kind to the persons named, and that no more apt words are required. But in employing his words of inheritance, the testator says 11 it is my will and desire,” that the property be not sold, but that it pass to the heirs of my children unincumbered.

It is the duty of courts to effectuate the intention of a testator, if by law it can be done. And in ascertaining such intention the construction which has been put upon like words, and the artificial rules, by which they have been styled and fixed by the authorities are the inflexible guides, where they apply, and, therefore, to quote from Mr. Justice Blaokstone, in Perrin v. Blake, cited in Rogers v. Rogers (ubi sup.), “ the question is not whether he intended his son should have only an estate for life, for he believed there never was an instance where an estate for life was expressly devised to the first taker, that the devisor intended he should have any more. But if he afterwards gives an estate to the heirs of the tenant for life; or to the heirs of his body it is the consequence or operation of law, that in this case supervenes his intentions, and vests a remainder in the ancestor. The true question of intent would turn, not upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs of his body. How did he intend the heirs should take ? If as purchasers, that intent should be carried into execution ; if as heirs by descent, or, if he had formed no intention about the matter, then by operation and consequence of law the inheritance vested in the ancestor ; and if the testator had not plainly declared his intent that the heirs should take an estate by purchase and not by descent as heirs, then the rule of the law must operate.”

The words ‘ ‘ and it is my will that it pass to the heirs of my children,” relate to the nature of the estate intended to be given to the heirs, and that they should take by descent and not by purchase; and giving to the words such effect, they became words of inheritance and vest a remainder in the ancestor.

Looking at the will, therefore, in the light of the law as settled in Shelley’s case, I am brought to theconoln sion, that it was the intention of the testator, to give to his devisees estates in fee, and not for life merely ; and looking at it in the light of the manifest intention of the testator, derived from the whole will, it is quite clear, I think, that the testator designed, that the estates of his son and daughter, should not be limited to their lives. Had he intended to give them such a limited estate, he would have said so, as he did in the devise to his widow, which was expressly for life, and would have omitted, what would have been quite unnecessary, the expression of his will and devise, that none of the property should be sold or disposed of, a right beyond the power of a mere tenant for life.

As the contingency of’the death of one of the devisees “ without issue,” has not, and as is admitted, can not, arise, I have not given to that clause in the will, any consideration, as affecting the present estates of the parties to the action. But it serves, I think, to confirm my opinion of the intention of the testator, that his children should take a fee.

The estates of the devisees were of the same duration, nature and quantity of interest, but that did not make them joint tenants. Joint tenancy was abolished in this State as early as 1786, except as to executors and other trustees, unless the estate was expressly declared in the deed or will creating it, to pass in joint tenancy, and there are no words in the will declaring that the estate should so pass in this case. The statute is that it shall expressly be declared to be in joint tenancy (1 Rev. Stat. 54.) Had the devisees been joint tenants, the doctrine of survivorship would have attached, and no words of the testator would have been necessary. So, had he intended to give them a life estate only, the same doctrine of survivorship would have applied. But as the devisees were tenants in common, the doctrine of survivorship did not apply, and a provision for the survivorship became necessary, if one died without issue.

I am, therefore, brought to the conclusion that Philip the younger became seized in fee simple, under the devise to him in the will of his father, of the one equal undivided moiety of the premises in question ; which upon his death, descended to his heirs-at-law ; and that upon the death of Charlotte the widow, the plaintiff and Philip became seized in fee simple, as tenants in common, of the remaining moiety of said premises, and each of one undivided fourth of the whole.

It must, therefore, be declared that the plaintiff is seized of an estate of inheritance in the one equal undivided fourth part of the premises ; and the children of Philip in the remaining three-fourths thereof, or each of two equal undivided sixteenth parts of the whole.

The estate of the children of Philip the younger, is subject to the dower therein of his widow, the defendant Susan McMff.

As her husband was seized of an estate of inheritance in three-fourths of the premises his widow had an inchoate right of dower therein, which upon his death became absolute and complete, entitling her to the use of one-third thereof during life: and to that extent the estate of the children is subject, unless the. provision made for her in the will of her husband, is an equitable estoppel.

The provision made for her, is not declared, to be in lieu of dower, requiring her, under the provisions of the statute (1 Rev. Stat. 741, § 18) to make her election.

There is nothing to show, that the testator intended that the provision should be received in lieu of dower (Jackson v. Churchill, 7 Cow. 287). And to put her to her election, the will must contain provisions, which are wholly inconsistent with her claim of dower in the particular portion of the estate, as to which it is made. (Fuller v. Yates, 8 Paige, 325 ; Irving v. De Kay, 9 Id. 521). And in Lewis v. Smith (9 N. Y. 502), it was held, that in order to compel an election, the devise in the will must be so repugnant to the claim of dower, that they can not stand together.

And even though the specific provisions made for her by the will, exceed the value of her dower, it is no reason for implying, that the testator intended to bar the dower in the residue (Havens v. Havens, 1 Sandf. Ch. 324; Mills v. Mills, 28 Barb. 454).

The widow is also, in addition to her dower, entitled, under the provisions of the will, to the use and occupation of three-fourths of the premises, until Mary, the youngest child, who was twelve years of age on May 5, 1873, shall attain full age.

The value of the interests in money can be ascertained, and if the widow consents to release her dower and accept a sum in gross, her interests can be extinguished.

The parties can prepare findings in conformity with the foregoing conclusions, which may be presented lor settlement, on two days notice to the respective attorneys, and they may then apply for further directions, when the question of costs and allowances will also be determined.