stated that he was under the impression the KNOWLTON, C. J. The plaintiff is the plaintiff had previously got off was admis owner of a house and lot in Watertown, sible, because it tended not only to contradict fronting on a private way twenty feet wide him as a witness, but to support the plain- | leading into Arlington street. He built this tiff's claim of being thrown off by the sudden house in May, 1891. Across the way is a jerk of the car, which was due to the negli- shallow pond with no outlet, called Puffer's gence of the motorman. Bachant v. Boston pond, the nearest part of which is seventy & Maine R. R., 187 Mass. 392, 396, 73 N. E. feet distant from the plaintiff's land. In its 642, 105 Am. St. Rep. 408; Robinson v. Old natural condition its surface is 7.58 feet beColony St. Ry. Co., 189 Mass. 594, 76 N. E. low the bottom of the cellar of the plaintiff's 190. But the plaintiff having failed to show house. Previously to February 28, 1902, the the violation of any duty owed to him by the pond had not overflowed the private way or defendant its erroneous exclusion becomes the plaintiff's land, or caused him any inconimmaterial.

venience in the use and enjoyment of his Exceptions overruled.

property. On that day it overflowed its natural boundaries, and rose to such a height that on March 1st the private way and

about three-fourths of the plaintiff's land (192 Mass. 116)

were covered with water, which entered the DALEY et al. v. TOWN OF WATERTOWN.

cellar of the dwelling house and filled it to (Supreme Judicial Court of Massachusetts. a depth of from three to four feet. The Middlesex. May 17, 1906.)

water was very filthy. It receded but slow1. MUNICIPAL CORPORATIONS-DRAINS - Es. ly and remained in the cellar for about a TABLISHMENT. The right of a town to construct a street

week, and caused serious damage to the under the order of the board of county com

house. There was also evidence that again, missioners did not give it any right to lay a in 1903, the pond overflowed and covered a drain or dig a ditch through the land of a part of the plaintiff's lot, and it also in 1904 private owner for the purpose of conducting

and 1905 covered a portion of the private way water and discharging it there.

and a small part of the lot near the way. 2. SAME-DIVERSION OF SURFACE WATERS. Cities and towns, in the construction of

On the first occasion of the overflow the water streets, may erect barriers to prevent surface covered lots of many other persons, and water from coming upon the street from ad

entered outhouses and privies erected on jacent lands, and may turn it from the streets upon abutting lands, if they do it in such a way

these lots, and the cellars and a basement as not to cause unreasonable damage.

of other houses. [Ed. Note.-For cases in point, see vol. 36, In the year 1901 the defendant town, actCent. Dig. Municipal Corporations, § 1785.] ing under an order of the county commission3. SAME - ACTION FOR DAMAGES - QUESTION ers, did the work of widening Belmont street FOR JURY.

in that part which lay within the boundaries In an action against a town for damages to plaintiff's land resulting from the discharge of

of the town, and changed the direction of the surface water upon his property, evidence held flow of surface water over a part of the land sufficient to justify a finding that there was an which was added to the street. Some years unnecessary and unreasonable change in the

previously to the date of the order of the course of surface water, to which the contour of the land was not adapted, so as to bring

county commissioners the defendant town the water in large quantities into a pond, from had constructed, and has ever since maintainwhich it escaped upon plaintiff's premises. ed, a 15-inch pipe drain connecting with an Report from Superior Court, Middlesex

open ditch from the corner of Arlington and County; John A. Aiken, Judge.

Belmont streets, to carry water from the Action by one Daley against the town of

streets through land of Joshua Cooledge, a

distance of two hundred feet or more, to Watertown. Verdict for defendant, and the case reported to the Supreme Judicial Court.

Puffer's pond. On May 14, 1891, the defendJudgment for plaintiff on the verdict.

ant obtained from Cooledge a license in writ

ing to continue the use of this drain, and, if Tort to discover damages for injury to

necessary, to construct a new drain over his plaintiff's land resulting from the discharge

land, to carry the water to Puffer's pond. of surface water upon his property. In the

There was evidence from Cooledge that the superior court the case was submitted to the

natural course of the drainage of the land jury for the assessment of damages only.

added to Belmont street was in another diThe jury assessed the damages to the plain- | rection, to a larger pond called Bird's pond. tiff in the sum of $675. The court then di

The defendant's superintendent of streets rected a verdict for defendant and reported

and town engineer testified to having taken the case to the Supreme Judicial Court

levels and made plans for the drainage of Belwith the stipulation that if the direction was

mont street, and he said that, in his opinion, the wrong judgment should be entered for the

natural discharge of water from that street plaintiff for $675; otherwise judgment to be

would be into Bird's pond. He also testified entered for the defendant on the verdict.

that he ran levels for a drain to discharge Jas. J. McCarthy, for plaintiff. John E. this water down Arlington street into Sawin's Abbott, for defendant,

pond, and thence to the Charles river, and

made a report thereof, with an estimate of the cost, to the selectmen, but they decided to have the water discharged into Puffer's pond, and obtained the license from Cooledge.

The evidence well warranted a finding that the overflow of water from Puffer's pond caused a nuisance, to the damage of the plaintiff and other property owners, and that this was chiefly due to the inflow of water through the drain and ditch which the defendant town maintained. The evidence plainly shows that the responsibility for the construction and maintenance of this drain was upon the town, through the selectmen acting as its agents, and not upon the superintendent of streets as a public officer.

The remaining question is whether the construction of the drain was in violation of private rights. The right of the town to construct the way under the order of the commissioners could give it no right to lay a drain or dig a ditch through the land of a private owner, for the purpose of conducting water and discharging it there. Franklin v. Fisk, 13 Allen, 211, 90 Am. Dec. 194. No one under the highway act could have an assessment of damages for the probable consequences of such a trespass, for the trespass could not be anticipated, and it would not be a natural and legitimate consequence of the laying outof the street. The only right of the town to maintain the drain in Cooledge's land was obtained through its license, but Cooledge

could give the town no greater rights than he had himself. He had no right as a landowner to take surface water which naturally would drain in another direction, and which had been collected and brought to catchbasins near his land, in a large quantity and to carry it down into the pond in a stream, in such quantity as to make the pond overflow, and cause a nuisance to other landowners in the vicinity. The evidence tended to show a material change in the condition of the pond, by discharging water into it which ought to have gone elsewhere.

It is true that cities and towns in the construction of streets, like private owners, on their own lands may deal with surface water in a reasonable way. They may erect barriers to prevent it from coming upon the street from adjacent lands. They may turn it from the streets upon abutting lands, if they do it in such a way as to cause no unreasonable damage.

In the present case there was something more than an ordinary disposition of surface water. The jury might find that there was an unnecessary and unreasonable change in the course of surface water, to which the contour of the land was not adapted, so as to bring it down in large quantities to a place from which it could not escape, and where its presence would be likely to create a nuisance.

Judgment for the plaintiff on the verdict.

(185 N. Y. 435)

other kindred cases. It is quite true that in In re MOSHER'S ESTATE.

many cases we have adhered to the practice (Court of Appeals of New York. June 6, 1906.) of dismissing the appeals, rather than affirmAPPEAL-ORDER GRANTING NEW TRIAL-AF ing the order granting a new trial. We did

FIRMANCE-JUDGMENT ABSOLUTE AGAINST not like to deprive a party of a new trial for APPELLANT.

acting upon erroneous advice. Occasionally Claimant against an executor appealed from

we still adhere to that practice, and dismiss an order of the appellate division reversing a judgment in her favor and granting a new trial. appeals, where it is apparent that an afiirmThereafter on application of the executor the ance and judgment absolute would result in Appellate Division amended its orders so as

great injustice to the appellant. But our to state that the judgment was reversed both on the law and facts; respondent stipulating

generosity in this respect has been abused, that appellant might, if she elected, withdraw and many appeals have been taken to this her appeal to the Court of Appeals. She did court and much time consumed in the disnot do so, but insisted on the claim that the

cussion of controverted questions of fact report of the referee contained findings of fact and conclusions of law, that a general exception

under the pretense that they were in favor only had been taken by the executor, and that of the appellant, doubtless hoping to obtain the Appellate Division had no power to review

some advantage upon a new trial in case the the facts and reverse thereon. Held that, on a finding by the Court of Appeals that ques

appeal should be dismissed. In this case the tions of fact were involved on which the Appel-appellant had the right to appeal under the late Division could properly reverse the judg provisions of the Code. This court thereby ment, the order would be affirmed and judgment

acquired jurisdiction to review her case. absolute granted against appellant on her stipulation, instead of dismissing the appeal.

Whether the record contains any exceptions [Ed. No'e.-For cases in point, see vol. 3,

to be reviewed is another question. It was Cent. Dig. Appeal and Error, $$ 4477, 4478.] claimed that the Appellate Division had no On motion for reargument and to amend

power to reverse upon the facts under the

exception filed to the referee's report by the remittitur. Denied.

executor. It was also claimed that the facts For former opinion, see 185* N. Y. - 77

were without dispute, and that, therefore, N. E. 1191.

the Appellate Division could not create a

question of fact by assuming to reverse upon HAIGHT, J. Elizabeth Sarles, the appel the facts, under authority of Otten v. Manh. lant, filed a claim for work, labor, and ser Ry. Co., 150 N. Y. 395-401, 44 N. E. 1033, and vices with the executor of the estate of Rose Hirshfeld v. Fitzgerald, 157 N. Y. 166-176, 51 T. Mosher, deceased, which was referred to a N. E. 997, 46 L. R. A. 839. We were, therereferee to hear and determine. The referee, fore, called upon to determine those quesafter hearing the case, filed his report in tions. The first question we regarded as favor of the claimant, upon which judgment settled by the case of Roberts v. Tobias, 120 was entered. The executor thereupon ap N. Y. 1-5, 23 N. E. 1105; the latter question pealed to the Appellate Division, First De by our review of the evidence finding that a partment, which court reversed the judgment question of fact was involved which the and granted a new trial. An appeal was Appellate Division had the power to review. taken by the claimant to the Court of Ap In the case of Snebley v. Conner, 78 N. Y. peals, and thereafter, upon application of the 218–220, Earl, J., in delivering the opinion of executor, the Appellate Division amended its the court, said: “In such cases we have order so as to state that the judgment was generally dismissed the appeals, so that the reversed both upon the law and the facts; new trial granted might be had. But the the respondent stipulating that the appellant practice in such cases has now become so might, if she elected, withdraw her appeal thoroughly established and known, and the to this court. She did not, however, elect to character of this case is such, that we think do so, but instead brought her appeal on for the ends of justice will be best subserved by argument, making the claim that the report an affirmance of the order." In the case of of the referee was in the long form contain Livingston v. City of Albany, 161 N. Y. 602, ing findings of fact and conclusions of law, 56 N. E. 148, a similar question was considand that a general exception only had been ered by Parker, C. J., who at the close of his taken by the executor to such report, and opinion states: “As justice may be promoted that the Appellate Division had no power to by a dismissal of this appeal, that course will review the facts and reverse thereon. This be taken, reserving to some future occasion court, finding that questions of fact were in the application of the rule adopted in Snebvolved upon which the Appellate Division ley V. Conner, 78 N. Y. 218, should counsel could properly reverse the judgment, affirmed persist in taking their chances in this court the order and awarded judgment absolute in the hope that, at the most, only a dismisagainst the appellant upon her stipulation. sal will result, giving them two opportunities

The appellant now seeks to have the re to persuade the court-one before the new mittitur amended so as to dismiss the appeal, trial ordered is taken, and one afterwards.” instead of affirming the order, relying upon See, also, Jameson v. Brooklyn Skating Rink Bini v. Smith, 161 N. Y. 120, 55 N. E. 395, Association, 54 N. Y. 673. The case under Health Department of City of New York v. consideration is one in which we thought the Dassori, 159 N. Y. 245–249, 54 N. E. 13, and rule above referred to should be applied.

78 N.E.--10

The motion should therefore be denied, , nied, and that the report should be returned with $10 costs.

to the commissioners, with certain directions

for a further report. The city of New York CULLEN, C. J., and GRAY, EDWARD

appealed to the Appellate Division from the T. BARTLETT, VANN, WILLARD BART order of the Special Term, and the appeal LETT, and CHASE, JJ., concur.

was dismissed. Leave was given to appeal to

this court and the following question was Motion denied.

certified for our determination: “Is the order

of the Special Term entered herein on March (185 N. Y. 391)

3, 1904, denying the motion to confirm the reIn re COMMISSIONER OF PUBLIC

port of the commissioners in this proceeding, WORKS.

and returning the report to them for amend

ment and correction, appealable to the ApIn re WILLIS AVE. BRIDGE.

pellate Division of the Supreme Court by the (Court of Appeals of New York. June 12,

city of New York ?" 1906.)

We think that the Appellate Division cor1. EMINENT DOMAIN-APPEAL - COMMISSION

rectly dismissed the appeal to that court, ERS' DECISION-RIGHT OF REVIEW. Greater New York Charter, Laws 1897, p.

and that the question certified should be an351, c. 378, § 986, permitting the Special Term swered in the negative. The proceeding by of the Supreme Court to confirm in whole or in the city was instituted under chapter 147, p. part, or to refer back, the report of commissioners estimating the value of property taken

288, of the Laws of 1894, and by section 4 for public streets and places, and section 988 of the act it is provided that the provisions (page 352), permitting the city or any person of law relating to the taking of private propaggrieved by the report, "when confirmed as

erty for public streets and places in the city aforesaid,” to appeal to the Appellate Division,

of New York shall be applicable to proceedare not affected or controlled by the provisions of the Code of Civil Procedure applicable to ings under the act. Those provisions are to appeals.

be found in the Greater New York charter. [Ed. Note.-For cases in point, see vol. 18, Laws 1897, p. 351, c. 378. Section 986 makes Cent. Dig. Eminent Domain, $$ 614, 619.]

provision with respect to the report of the 2. SAME.

commissioners and permits the Special Term Greater New York Charter, Laws 1897, p. 351, c. 378, § 986, provides that the Special

of the Supreme Court to confirm the report Term of the Supreme Court may confirm in in whole or in part, or to refer the same, or a whole or in part or refer back the report of part thereof, back to the commissioners, or commissioners estimating the value of property

to new commissioners, for revision or correctaken for public streets and places. Section 988 (page 352) permits the city or anyone ag

tion, or for reconsideration, etc. This section grieved by the report, “when confirmed as changed the pre-existing law, as contained in aforesaid," to appeal to the Appellate Division the Consolidation Act of 1882, in the respect of the Supreme Court. Held, that in proceedings under Laws 1894, p. 288, c. 147, which, by

that there may be a partial confirmation of section 4 thereof, makes applicable such sections the report of the commissioners. Section 988 of the charter to proceedings under the act, permits the city of New York, or any party the Appellate Division cannot entertain an ap

or person aggrieved by the report, "when conpeal from an order refusing to confirm the commissioners' report, and returning it with direc

firmed as aforesaid,” to appeal to the Appeltions for a further report.

late Division of the Supreme Court. These

provisions of the character relating to the Appeal from Supreme Court, Appellate

right to appeal are not affected, nor controllDivision, First Department.

ed, by the provisions of the Code of Civil Application by the commissioner of public

Procedure applicable to appeals. The authorworks of the city of New York to acquire

ity conferred upon the Appellate Division land for a certain bridge. From an order

to entertain appeals from orders made upon of the Appellate Division (97 N. Y. Supp. 503,

the coming in of reports of the commission111 App. Div. 285), dismissing an appeal from

ers only exists when there has been an order an order of the Special Term refusing to con

of confirmation, which confirmation is not firm the report of the commissioners of esti

required to be the whole report, but may be mate, the city appeals. Affirmed.

partial, under section 986. The cases of John J. Delany, Corp. Counsel (Theo Vatter of the City of New York, 182 dore Connoly, of counsel), for appellant. N. Y. 281, 74 N. E. 840, and of Real Estate John C. Shaw, Arthur S. Hamlin, and James Corporation v. Harper, 174 N. Y. 123, 66 N. E. A. Deering, for respondents.

660, related to orders of partial confirmation

and they decided that an appeal would lie PER CURIAM. This proceeding was in to the Appellate Division in such event. stituted by the city of New York to acquire ti Those cases have no application to the prestle to certain lands, for the purpose of the ent one, where the order wholly denied the construction of a bridge over the Harlem river motion to confirm the report. In such a case, and of approaches thereto. Upon a motion we think that, by the plain language of the to confirm the report of the commissioners charter, the right to appeal from the Special of estimate, who had been appointed in the Term order is excluded. proceeding, the Special Term of the Supreme The order of the Appellate Division, thereCourt ordered that the motion should be de. fore, should be affirmed, with costs.


CULLEN, C. J., and GRAY, O'BRIEN, the use and benefit of certain parcels of land. EDWARD T. BARTLETT, WERNER, HIS The fourth clause disposed of the property COCK, and CHASE, JJ., concur.

so given to his wife, upon her ceasing to be

his widow, by dividing the same equally Order affirmed.

among his children. The fifth clause reads as follows: "I give and bequeath unto my

executors, to be hereinafter appointed, the (185 N. Y. 383)

rest, residue and remainder of my personal BROWN V. DOHERTY et al.

and real estate. In trust, nevertheless, and (Court of Appeals of New York. June 12,

New York. June 12, I do hereby by this my last will and tes1906.)

tament authorize my executors hereinafter

appointed to rent, sell, or dispose of the rest, 1. WILLS-CONSTRUCTION - TRUSTS — POWER OF DISPOSITION.

residue and remainder of my said real estate, A residuary bequest to executors, "in either at public or private sale as they may trust, nevertheless, and I


deem most advantageous to my estate, and my executors to rent, sell, or dispose

to execute good and sufficient deed or deeds of the rest * * * of my said real estate * * * and to place the residue of my money

for the same and to place the residue of the arising from such sales" at interest for the money, after paying my just debts as hereinsupport of minor heirs, creates an imperative

before directed, arising from such sale or sales, power to dispose of the residuary estate.


long as she shall remain my widow, such inExecutors, acting under an imperative pow come arising therefrom for the support and er in the will, offered certain real estate for sale

maintenance of my said infant children, durat public auction. After the sale, at which both executors were present, a deed was made

ing their minorship or infancy. And after to the purchaser by one of them, in which, the said Margaret Dougherty shall cease to for no assigned reason, the other did not join. be my widow, I give and bequeath to my said Several years later the executor not joining

children, Patrick Dougherty, John Dougherty died, without having at any time disputed the validity of the sale. Held, that the purchas

and James Dougherty, equal, share and share er became the owner of the whole equitable title,

alike, all the estate both real and personal, the heirs at most holding the legal title as his that may remain in the hands of the said extrustees.

ecutors at the time the said Margaret Dough3. QUIETING TITLE-SCOPE OF RELIEF-TITLE IN TRUST.

erty shall cease to be my widow. And I do Code Civ. Proc. c. 14, tit. 1, art. 5, pro

also authorize and direct my said executors, vides that one in possession of real property in case of the sale of my real estate, as aland claiming title may maintain an action to

ready provided for, to sign, seal, execute and determine any adverse claim to the fee, and that final judgment for plaintiff must forever

deliver good and sufficient deed or deeds of bar any claim of inheritance by defendants. conveyance in the law for conveying the said A purchaser at a sale by executors under the real estate to the purchaser or purchasers will secured the whole equitable title; the heirs, who claimed by reason of one executor not

thereof." He appointed his brother Patrick having joined in the deed, at most holding the

and Hugh Lunny to be his executors and both legal title as the purchaser's trustees. Held, qualified. In 1878 the premises in question that the Code warranted a judgment barring

were sold and the finding of fact is that the any claim by the heirs and establishing plaintiff's ownership.

executors sold the same at public auction,

after advertising the sale in the usual way in Appeal from Supreme Court, Appellate Di

a newspaper published in the county in which vision, First Department.

the property was located. The notice was Action by Mary E. Brown against Patrick entitled “Executors' sale of valuable propDoherty and another. From a judgment of

erty,' stated that "the executors will sell the the Appellate Division (87 N. Y. Supp. 563, real estate of Thomas Doherty, deceased, on 93 App. Div. 190), affirming a judgment in

August 1st, 1878, at 2 p. m. on the premises," favor of plaintiff, defendants appeal. Af described their advantageous situation, defirmed.

clared that they "will be sold to the highest The plaintiff, claiming to be the owner in bidder, without reserve, for cash,” and bore fee, and to have been in the possession for the names of both executors. It is further over 23 years, of certain real estate, brought found that “both of the executors were presthis action against the defendants to deter ent at the sale, and sold the said premises, mine the title and to bar them from all claim which were struck down by the said Hart thereto. The defendants denied the plain- | (the auctioneer) to one Patrick Kedney, the tiff's title and set up their title to the estate purchaser at said sale, for the sum of $100, as devisees under their father's will. The said amount being the highest bid”; that premises, originally, belonged to Thomas Kedney assigned his bid to James F. Brown; Doherty, or Dougherty, who died seised there “that said Lunny, being present and particof in 1874. He left a will, by which he made ip:iting in said sale, made no objection therea disposition of all of his property. After di to and that he lived for over 12 years thererecting the paymentof bis debts, etc., and mak after and during that tirne, in no way, coning a gift of his household effects to his wife, tested the claim of title of the plaintiff, or by the third clause, he gave to his wife, dur her grantors, to said premises; that said Pating the time she should remain his widow, rick Doherty, one of the said executors, made,

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