that this is simply a perversion of the will, since it substitutes the discretion and judg ment of a court for the discretion of the widow. But it is quite clear that, unless we are prepared to overrule a long line of decisions in this court, this provision of the will created no trust in favor of the plaintiff, or any charge upon the estate devised and bequeathed to the defendant. It was simply the expression of a desire, request, or expectation on the part of the testator. In other words, he requested his wife to contribute such sums for the benefit of the plaintiff, from time to time, as, in her discretion, she thought best. These words created no positive obligation on the part of the widow, or any charge upon the estate. That this view is in accordance with the settled law of this state seems to me very clear, and it will be necessary to refer to only a few of the more recent cases:

*

In Foose v. Whitmore, 82 N. Y. 405, the provision of the will was: "I * * * give and bequeath all my property, real and personal, to my beloved wife, Mary; only requesting her, at the close of her life, to make such disposition of the same among my children and grandchildren as shall seem to her good." It was held that the gift to the wife was absolute; that the concluding words amounted to a mere suggestion, and did not create a trust, or any charge upon the estate. In Clarke v. Leupp, 88 N. Y. 228, the testator declared that he deemed it his duty to make a will for the benefit and protection of his wife and his two children, and then proceeded as follows: "I do, therefore, make this, my last will and testament, giving and bequeathing to my wife, Caroline, all of my property, real and personal, * and do appoint my wife * my true and lawful attorney and sole executrix of this, my will, to take charge of my property after my death, and retain or dispose of the same for the benefit of herself and children above named." It was held that the widow took an absolute title to all of the testator's estate, that it was not intended by the words succeeding to limit or cut down the absolute gift, and that there was no trust created. In Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. 144, after a gift of the residuary estate to the testator's daughter, and to her heirs and assigns forever, the following words were added: "I commit my granddaughter to the charge and guardianship of my daughter. * I enjoin upon her to make such provision for said grandchild out of my residuary estate

* in such manner and at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate." In a suit by the granddaughter it was held that no trust was created, nor any charge upon the property given by the will to the daughter; that the legatee took an absolute title, and the provision made for the grand

daughter was left wholly to her discretion as to the amount and manner, as well as the time, when it should be made; and that this discretion could not be interfered with by the court. In Re Gardner, 140 N. Y. 122, 35 N. E. 439, the testator gave his residuary estate to his wife, to have and to hold the same, and every part and parcel thereof, to her and her heirs, forever: provided, however, that, if any part of it should remain unexpended or undisposed of at her death, this he gave to his son, his heirs and assigns. Following this was an expression of the testator's expectation and desire that his wife should not dispose of any of the estate by will in such a way that the whole that might remain at her death would go out of his "own family and blood relations." The testator had but one child,-a son by a former wife. The widow died, leaving a will which disposed of so much of the residuary estate as remained at her death; giving a large portion thereof to the son, and also one-fourth of her residuary estate, after the expiration of a life estate given therein, and another fourth to the sister of her husband. It was held that the estate of the wife was not limited or qualified by the concluding paragraph, expressing the testator's expectation and desire. In Clay v. Wood, 153 N. Y. 134, 47 N. E. 274, the testator gave certain real and personal property to his wife, to have and to hold unto her and her heirs, executors, administrators, and assigns, forever, and legacies to others, which were declared not to be a charge upon the property given to the wife, and then gave all the residue of the estate to the wife and to her heirs, executors, administrators, and assigns, forever, followed by these words: "And it is my desire and request that my said wife do sustain, provide for, and educate Lucretia, the daughter of my said adopted daughter, Josephine; and it is my further desire and request that my wife do make the said Lucretia, Josephine, and my nephews and nieces, the children of my brothers C. & G., joint heirs after her death in the said estate which by this will I have bequeathed to my said wife." It was held that the testator intended an absolute gift to the wife, except the legacies to others, with an absolute right of disposition, and that such gift was not qualified by the subsequent precatory clause, and that hence no trust or power in trust in favor of the persons mentioned in that clause was created thereby. I think the doctrine of these cases is decisive of the question now before us. It seems to me impossible to make any sound distinction between the case at bar and those referred to. The judgment in this case cannot, as it seems to me, be sustained without overruling the legal principle which has been so long and so often enunciated by this court

It appears from the record that the plaintiff did, after the death of her husband, exercise her discretion under this clause of the will, and contributed for the plaintiff's ben

efit in each year a sum averaging something less than $200. It has been held, however, thus far, that the defendant has substantially disregarded this provision of the will by the payment of so small a sum. While I am of the opinion that under the law of this state the defendant's discretion was left entirely unfettered by the terms of the will, and that no court has any right to prescribe the time or manner in which it shall be exercised, yet there is a feature of the case that might possibly permit a modification of the judgment without overthrowing the principle of the cases already referred to. On the trial of this case the defendant stipulated in open court that she was willing to be bound to the exercise of the discretion enjoined by the will to the extent of $400 per year. I think that under the circumstances the court had the power to hold her to this stipulation, and I would be in favor of modifying the judgment accordingly; but there is no other ground, I think, upon which the plaintiff's claim to share in the estate, as a matter of absolute right, can be sustained without disturbing settled rules of law. Unless the judgment can be so modified, it should be reversed, and a new trial granted.

HAIGHT, VANN. and LANDON, JJ., concur with BARTLETT, J., for affirmance. PARKER, C. J., and MARTIN, J., concur with O'BRIEN, J., for reversal.

Judgment affirmed.

(163 N. Y. 242)

MOONEY et al. v. NEW YORK EL. R. CO. et al.

(Court of Appeals of New York. June 5,

1900.)

INJUNCTION PARTIES NEW PARTIES-APPEAL AND ERROR.

1. Under Code Civ. Proc. § 1338, providing that, when the appellate division reverses a judgment of the trial court without stating that it was on the facts, it will be assumed that it was on the law, where the order of reversal of an order allowing third persons, on their application, to be made parties plaintiff, and the pleadings to be amended accordingly, does not state that it was on the facts, it must be assumed that the order was reversed, not on the ground that it was an abuse of discretion, but on the ground that the court had no power to make it; and hence the order of reversal, being on a question of law, is subject to review by the court of appeals.

2. When a landowner sued to restrain the operation of railways by defendants, and pending the action conveyed the premises, his grantee conveying to another, with reservation in both deeds of all claims for damages, and on the trial the two grantees appeared in court by their attorneys, and asked to be made parties plaintiff, the court had power to order the pleadings and proceedings to be amended accordingly, and that defendants be allowed. on the trial, to make any defense as if a supplemental complaint and answer had been made and delivered; the cause to be postponed two weeks for further hearing.

O'BRIEN, J. This is the usual action by a property owner against a railroad to restrain its operation, by injunction, and for damages. The action was originally brought in the name of the plaintiff Daniel Mooney on the 1st of December, 1890. At that time he was clearly entitled to maintain the action. On the trial of the case before the court at special term, it appeared that pending the action, and on the 15th of April, 1891, Mooney conveyed the premises to the plaintiff David Cohen. In this conveyance Mooney reserved the easements of light, air, and access as taken and used by the defendants, and all the claims for damages for such taking and use, both as to the fee and rental value, past, present, and future. It also appeared that on the 13th day of October, 1891, Cohen conveyed the premises to the plaintiff Francis Scallion, subject to the same reservation contained in the deed already mentioned. This change in the title was found as a fact by the trial court. The grantees in these two conveyances were made parties to the action at the trial in the manner hereafter described. The court awarded to Mooney a moneyed judgment for the sum of $278.55; to Cohen, $82.35; and to Scallion, $562.95. The court also awarded an injunction, to be operative after a certain time in case the plaintiff Mooney and his two grantees tendered to the defendants a conveyance and release of all right, title, and interest in the easements and premises described in the complaint, to be held and used by the defendants for their corporate purposes, and the defendants refused to receive the same and pay to Mooney $2,700 fee damages, which his co-plaintiffs in this action consented, in open court, might be paid to him. The learned appellate division has reversed this judgment, and, as the order of reversal does not state that it was upon the facts, we must assume it was upon the law. Code Civ. Proc. 1338.

The only question of law presented by this record is the power of the learned trial judge, at the trial, to bring in two additional parties who had acquired an interest in the real property subsequent to the commencement of the action, and who were required by the judgment actually rendered to join with Mooney in a conveyance of the easements to the defendants. This question has been discussed at length upon the briefs of counsel, but it does not seem to me that it presents any question of law. The time and the

mode in which new parties, whether plaintiff or defendant, may be brought in, as well as the conditions to be imposed, involve almost in every case questions of discretion that are not reviewable in this court. The learned appellate division had the power to review the discretion exercised at the trial, and to hold, as it did, that the manner in which the power to amend and bring in new parties was exercised at the trial was not wise or just, under the circumstances, to the defendants. That was evidently the view which the learned court below, upon appeal, took of the case. But this view finds no expression whatever in the order as actually entered, since it conclusively imports that the trial court erred, as matter of law, and not in the exercise of discretion. It appears from the record that the defendants moved at the trial to dismiss the complaint so far as the same demanded relief by injunction, or the payment of money to avoid the issuing of the same, because of the impairment of the fee value, on the ground that Mooney was not then the owner of the fee or of any part thereof, or entitled to any relief by injunction. The court reserved its decision upon this motion. The defendants' counsel then moved for an adjournment of the trial until all the parties in interest were properly brought before the court by an application on the part of the plaintiff for leave to serve a supplemental summons and complaint bringing in his grantees as parties plaintiff, with leave to the defendants to answer the supplemental complaint. The court did not pass upon this motion at the time, but at this stage of the proceedings the plaintiffs Cohen and Scallion appeared in court by counsel, and requested that they be made parties plaintiff in the action, and consented to submit their rights to the court. court granted the motion, and ordered that the pleadings and proceedings be amended accordingly; that the defendants be allowed on the trial to make any defense that they may be advised, with the same force and effect as if a supplemental complaint and answer had been made and served; and to this end the cause was postponed for two weeks for further hearing. The conveyances made during the pendency of the action were then offered in evidence, and, with other testimony in the case, the court made findings of fact and law, and awarded the judgment already described.

The

It is, I think, quite plain that this action of the learned trial judge does not present a question of law which this court has a right to review, unless it be the question of power to act at all. The new parties appeared in court, and asked to be brought in, to the end that the whole controversy might be decided in the one action. They did not and cannot complain of the manner in which they were made parties to the record. No one complains of that but the defendants, and, since the order of the court permitted the de57 N.E.-32

fendants to make any defense that they had, it is difficult to see what real ground of complaint can be urged in their behalf. There are various ways in which it is competent for the court of original jurisdiction to bring in new parties, and the particular course that it may decide to adopt generally presents a question of choice or discretion not open to discussion in this court. The facts which rendered the presence of the new parties necessary in order to permit a final adjudication of the controversy were patent and undisputed. They were evidenced by the two conveyances made subsequent to the commencement of the action, and the defendants were permitted by the court to raise any question growing out of these new facts that they could raise in any form or in any manner. The original plaintiff, by his counsel, suggested one method of bringing in the new parties, while the defendants' counsel suggested another method. The defendants' method was to put the plaintiff to his application at a special term to amend the process and the pleadings, and to serve a supplemental complaint, with the right to the defendants to serve a supplemental answer. The learned trial judge doubtless had the power to compel the plaintiff to resort to that method, dilatory as it was; but he decided to make them parties on their own application, and to let the cause proceed as if everything had been done that the defendants' counsel asked. The contention of the learned counsel for the defendants is that the judge had no power to do that. In this we think he is mistaken. By the provisions of the Code, extensive powers in this respect are conferred upon the court of original jurisdiction. "The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment." Code Civ. Proc. § 452. "In case of a transfer of interest, or devolution of liability, the action may be continued, by or against the original party; unless the court directs the person, to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires." Id. § 756. "In a case specified in the foregoing sections of this title, where such a person applies in his own behalf, the court may direct that he be made a party, by amendment of the pleadings, or otherwise as the case requires. Where an application is made by the plaintiff, to bring in such a person as defendant,

paid therefor,-a street railroad company owning a road which is to be built from one town into another, which has obtained the consent of the authorities of a town within which a crossing is to be made to the use of the highway of such town by the street-railroad company, may maintain an action to acquire the right to cross the tracks of a railroad company which intersects the highway on which the street-railroad company's tracks are laid, though it had not the consent of the other town into which it proposed to build its road.

4. Under Laws 1890, c. 565, § 91, providing that a surface street railroad shall not be built on any street or highway without the consent of the owners of one-half in value of all the property abutting on the street, a consent by the requisite number of the abutting property owners given to certain promoters of a proposed corporation, their assigns and legal representatives, to the construction of a surface road, which is subsequently assigned to a corporation, is sufficient to authorize the construction of a surface street railroad in the highway by the assignee, and a railroad over whose tracks the street-railroad company has instituted proceeding to procure a right to cross at a point where they intersect the highway cannot question the sufficiency of such consent.

Appeal from supreme court, appellate division, Fourth department.

Proceedings by the Geneva & Waterloo Railway Company against the New York Central & Hudson River Railroad Company and the Fall Brook Railway Company to determine the manner in which plaintiff's street-car tracks should cross the defendants' railroads, and the compensation to be paid therefor. From a judgment of the appellate division affirming a judgment entered on a report of a referee dismissing the action, plaintiff appeals. Reversed.

Charles A. Hawley, for appellant. Albert H. Harris, for respondents.

O'BRIEN, J. The plaintiff is a street-railroad company duly incorporated in the year 1893. In January, 1895, it instituted this proceeding under section 12 of the railroad law to acquire the right to cross the defendants' tracks at a point where they intersect the highway upon which the petitioner's road is constructed. The matter was tried before a referee, who, in February, 1897, dismissed the proceeding, holding that the petitioner had not shown any right to maintain it. A judgment of dismissal, with costs, was entered, and subsequently affirmed at the appellate division. 53 N. Y. Supp. 1104. On May 22, 1897, chapter 754 of the Laws of 1897 was enacted, to go into effect on the 1st of July thereafter. This statute made some important changes in the procedure in order to acquire the right in question. The learned counsel for the defendant contends, in the first place, that the proceedings were properly dismissed by the referee under the law existing when the decision was made; but, if not, then the new law of July 1, 1897, has placed such insurmountable obstacles in the petitioner's way that it is impossible now for it to maintain this proceeding, and hence that the action of the courts below should be af

firmed. We think that the petitioner was entitled to maintain the proceeding, and that the judgment of dismissal proceeded upon an erroneous construction of the statute applicable to such cases. It will be quite sufficient to indicate briefly the reasons and grounds upon which such conclusion is based:

1. The new statute, passed in May, 1897, to go into effect on the 1st of July following, has no application to this case. Whether the judgment entered on the report of the referee is right or wrong must depend upon the law applicable to the case when the decision was made, and not upon some law passed subsequently. It is a general rule in the construction of statutes that they are not to be given any retroactive effect when the language employed is fairly capable of any other construction. The new statute of 1897 was not intended to affect pending cases, but was prospective in its operation.

In re Van Kleeck, 121 N. Y. 701, 25 N. E. 50; Railroad Co. v. Van Horn, 57 N. Y. 473; In re Miller's Estate, 110 N. Y. 216, 18 N. E. 139; People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255. Moreover, it has been held that proceedings of this character pending at the time of the passage of the new law were not affected thereby, but were saved from its operation by section 31 of the statutory construction law. People v. New York Cent. & H. R. R. Co., 156 N. Y. 570, 51 N. E. 312; Id., 158 N. Y. 410, 53 N. E. 166. The proceedings in this case were pending in the courts when the new act was passed, and hence the judgment must be reviewed here upon the law existing at the time the decision complained of was made.

2. The statute then in force provided, in substance, that unless the two railroads could agree with respect to the terms and conditions upon which the crossing should be made, those matters should be determined by commissioners appointed by the court, "as is provided in the condemnation law." It was assumed by the parties in this application for the appointment of commissioners that, since they were to be appointed in the same manner as in proceedings for condemnation, the petitioner is bound to prove all the facts necessary to maintain the latter proceeding. The learned counsel for the street-railroad company contends upon this appeal that proof of the consents of the local authorities and of the abutting owners was not a condition precedent to the right to maintain the proceedings, as the referee held, and in support of this contention he has cited authorities which are said to apply. In re Lockport & B. R. Co., 77 N. Y. 561; Geneva & W. Ry. Co. v. New York Cent. & H. R. R. Co., 90 Hun, 9, 35 N. Y. Supp. 339, affirmed 152 N. Y. 632, 46 N. E. 1147. Without passing upon that question now, we think that the appeal should stand or fall upon the theory that the case was tried and submitted to the referee, and not upon a new theory, not presented at the trial, or distinctly passed upon by the ref