WILLIAM B. ROYCE et al., Trustees, Pl'ffs, v. JENNIE C. T. ADAMS, Def't

(Supreme Court, General Term, Second Department, Filed July 18, 1890.

WILLS-POWER OF SALE.

Where the language of a will annexes the power of sale to the office of executor, and no personal confidence in the discretion of the person named is either expressed or implied, an administrator with the will annexed takes the power of the original executors, and may execute the power. The same rule applies to the administrators in their character of substituted trustees.

SUBMISSION of controversy without action.

Defendant agreed by contract to take title to a certain lot which was left by the late Henry R. Low, deceased. The contract was made with plaintiffs as the trustees under the will of said Henry R. Low, deceased, and they duly tendered a deed, but defendant refused to complete the purchase, claiming that there was a doubt as to whether the power in the will could be executed by any but thee xecutors and trustees named in the will.

The executors named in the will duly qualified, but on petition of the heirs the letters testamentary were revoked and the executors allowed to resign, and plaintiffs were thereafter appointed administrators with the will annexed and trustees in their place. W. J. Groo, for pl'ffs; Alton J. Vail, for def't.

DYKMAN, J.-The question for determination in this action is, whether the administrators with the will annexed, who are also the trustees substituted in the place of the executors of the last will and testament of Henry R. Low, deceased, can give a good title to the real property of which he died seized.

The language is this: "Second. I hereby nominate and appoint my father-in-law, John D. Watkins, and my sons, Russell T. and John W. Low, executors, and my wife, Mary C. Low, executrix of this my last will and testament hereby empowering my said executors and executrix, or whoever shall execute this my will, to sell, lease, or otherwise convey or dispose of any and all my real and personal estate and effects, and to give good title thereto, without lien, charge or incumbrance of any kind upon the same, either for cash or on credit, or both."

This language annexes the power of sale to the office of executor, and no personal confidence in the discretion of the person named is either expressed or implied. The power of sale is bestowed upon the executors and executrix, or whosoever shall execute the will.

Under such circumstances an administrator with the will annexed takes the power of the original executors, and the power or trust may be executed by them. Bain v. Matteson, 54 Ñ. Y., 663. The same rule applies to the administrators in their character of substituted trustees. Farrar v. McCue, 89 N. Y., 140.

Judgment in favor of the plaintiff should, therefore, be rendered upon the demurrer.

BARNARD, P. J., and PRATT, J., concur.

HENRY W. EMBLER, Resp't, v. THE TOWN OF WALLKILL, App'lt (Supreme Court, General Term, Second Department, Filed July 18, 1890.) 1. HIGHWAYS-DUTY OF COMMISSIONER.

Commissioners of highways are charged with the duty of active vigilance and watchfulness in ascertaining the condition of the highways, and they must exercise proper care in their maintenance in a reasonably safe condition for all ordinary travel.

2. SAME LIABILITY OF TOWN FOR DEFECTS IN.

Plaintiff, while riding on top of a load of hay along one of defendant's highways, was struck in the face by the stub of an overhanging branch of a tree and thrown from the load and injured. The branch hung over the traveled portion of the highway so low as to leave insufficient space for the passage of a load of hay, and had been in that condition for ten years. Held, that these facts showed inexcusable negligence, and that the town was liable for the injury.

APPEAL from judgment in favor of plaintiff for $6,000, entered on verdict.

Action to recover for personal injuries.

William Vanamee, for app'lt; W. F. O'Neill, for resp't.

DYKMAN, J.-While the plaintiff was riding on the top of a load of hay along one of the public highways of the town of Wallkill, he was struck in the face by the stub of an overhanging branch of a tree and scraped off of the load and precipitated to the ground and severely injured.

This action was brought against the town for the recovery of the damages sustained by the plaintiff by reason of such injuries, and the basis of the action is the negligence of the highway commissioners in failing to maintain the road in question in a condition of safety for travelers.

The cause was tried at the circuit and the plaintiff recovered a verdict of $6,000, and the defendant has appealed from the judg ment and also from the order denying the motion for a new trial on the minutes.

Commissioners of highways are charged with the duty of active vigilance and watchfulness in ascertaining the condition of the highways, and they must exercise proper care in their maintenance in a reasonably safe condition for all ordinary travel. Such are the duties imposed upon those officers by the law, and when they are not discharged and injury results to a traveler from a failure in their performance, without his fault, he has a cause of action for the damages sustained by reason of such negligence.

At the common law the towns were not liable for the negligence of such commissioners, because they are neither the agents nor servants of the town, and the commissioners were personally liable for the consequences of their own negligence, but now in this state the legislature has intervened by statutory enactment and imposed a liability upon the towns in all cases where the commissioners would be personally liable.

The statute is wise and salutary, and furnishes a more certain and adequate remedy and satisfaction for injuries resulting from the negligence of public officials.

Upon the facts and the law this is a plain case for the plaintiff. The tree in question stood upon the side of the highway, and its branches hung over the traveled portion of the road so low as to leave a space insufficient for the passage of a load of hay, and that condition had existed for more than ten years. Those facts presented a case of inexcusable negligence, and there is no principle which will exonerate the town from the liability resulting therefrom.

The case was submitted to the jury by the trial judge in a charge which fully explained and laid down the legal principles which controlled the case, and there was no error committed upon the trial.

The point respecting the liability of the city of Middletown is untenable.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

PRATT, J., concurs.

THE PEOPLE, Resp'ts, v. DANIEL W. CLEGG, App'lt. (Supreme Court, General Term, Second Department, Filed July 18, 1890.) INDICTMENT-AMENDMENT.

An indictment for the crime of libel may be amended upon notice by inserting words accidentally omitted, which constituted a part of the published libel. The defendant cannot be surprised or misled by such amendment.

APPEAL from judgment of court of sessions convicting defendant of the crime of libel.

Defendant had been a tenant of one Philip Wolff and had been dispossessed for non-payment of rent, and had prepared and circulated the article set forth in the opinion.

On the trial evidence was given to show that the note men. tioned therein was paid in 1860.

George C. Coffin, for app'lt; Thomas W. Fitzgerald, dist. atty., for resp'ts.

PRATT, J.-The defendant was convicted at a court of sessions held in Richmond county of the crime of libel under § 242 of the Penal Code.

The libel consisted of a circular printed and circulated, of which the following is a copy:

"$50.00.

Ninety days after date I promise to pay Charles Schmeiser the sum of fifty dollars, or order, for value received.

"Dated SOUTHFIELD, March 30, 1860.

"Witness: THOMAS GARRETT.

PHILIP WOLFF.

"This much of a wealthy man who, then poor, now has pride in villifying one or more of his tenants, without mercy; to add to his wealth. Note not paid.

November, 1887.

"A VICTIM.

"My dear Philip Wolff (police commissioner) permit me to inform you that the original of said above copied note, neatly framed and adorned, (you too, no doubt, will be permitted to see it) can be seen at the Widow Schmeiser's Hall, corner of Wright and Water streets, Stapleton, S. I.

"How about truth v. villification."

The circular was clearly libelous in its terms and it appeared fairly from the evidence that it was false and published in malice.

The evidence fully justified the verdict, so that unless some error was committed upon the trial the judgment must stand.

The court allowed the district attorney to amend the indictment upon notice by inserting the words "Note not paid" and the defendant claims to have been prejudiced thereby.

The words were a part of the published libel that had been accidentally omitted. As soon as the article was put in evidence these words were necessarily shown as a part of the case.

The defendant could not have been surprised or misled, as these words were a part of the libel and by inserting them the indictment was made to conform to the proof. Such an amendment was authorized by § 293 of the Code of Criminal Procedure, and in no way prejudiced the defendant. We have examined all the exceptions and find none of sufficient importance to demand dis

cussion.

Judgment affirmed.

BARNARD, P. J., concurs; DYKMAN, J., dissents.

PATRICK WILLIAMS, Ex'r, Resp't, v. THE BROOKLYN ELEVATED R. R. Co., App'lt.

(Supreme Court, General Term, Second Department, Filed July 18, 1890.)

1. TRIAL-SUMMING UP BY COUNSEL.

A judgment in an action for damages against an elevated railroad will not be set aside on the ground that counsel in summing up read a newspaper article in regard to the violation of the rights of persons by corpora tions, where such article did not refer to defendant's road or to elevated railroads in any particular, and the substance of it could properly have been stated by the counsel. So, also, as to an opinion of the court of appeals in a similar case.

2. RAILROADS-ELEVATED-DAMAGES.

In an action against an elevated railroad damages may be recovered for obstructions to the street during its construction.

3. SAME.

A charge that an absolute loss of rental was to be allowed to plaintiff, if proven, as well as a mere diminution, is proper.

It is not erroneous to admit proof of the effects of the railroad on the street as manifested by a storm which happened subsequent to the commencement of the action in support of proof of injury done to the street. by defendant's structure, and a photograph of such street after the storm is admissible. It is not necessary to show also a photograph of the street before the storm.

APPEAL from order denying a new trial, and from judgment in favor of plaintiff for $7,396.77, entered on verdict.

Action for damage to rental value of certain houses owned by plaintiff caused, as alleged, by the operation of defendant's road. Hoadly, Lauterbach & Johnson (Wm. N. Cohen, of counsel), for app'lt; B. F. Tracy, for resp't.

BARNARD, P. J.-The plaintiff's testator, at the time of the construction of the defendant's elevated railroad on Grand avenue, was the owner of sixteen houses fronting on the avenue. She brought an action for injury alleged to have been done to her property, and recovered a judgment by the verdict of a jury. The company appealed. The right of action to an abutting owner for damages sustained by reason of the diversion of a street from the use for which it was originally taken, was established by the court of appeals in the case of Lahr v. Metropolitan Elevated R. R., 104 N. Y., 268; 4 N. Y. State Rep., 340. The plaintiff fully proved her case. Several witnesses testified to a large loss in rental value by reason of the construction of the railroad. The reason for the diminution in rental value was proven. The light was obstructed as to some of the houses on the avenue, including the plaintiff's houses, and there was great annoyance from gas, noise and smoke. The defendant produced evidence in contradiction of the allegation of the plaintiff and his witnesses. Upon this testimony the jury found a verdict in favor of the plaintiff for $6,875. The verdict was moderate under the evidence, and the verdict should stand unless some legal right of the defendant was violated upon the trial. The plaintiff's counsel read an article from a newspaper in respect to the violation of the rights of persons by corporations. The article in question was not in respect to the defendant's railroad. It did not refer to elevated railroads in any particular. It was neither offered in evidence or rejected. The substance of the article could, without any offense, have been stated by the advocate in summing up the case. case does not show to what the article was pertinent by way of answer to the summing up of defendant's counsel. It is seldom' if ever, on an important severely contested trial that the speech of either counsel will bear a close scrutiny upon the theory that every word or part of it should be addressed to the case, and be based upon the evidence Freedom of advocacy means something beyond this, and it will be a severe rule which reverses a judg ment for every idle word of counsel spoken to the jury on the trial.

The

The reading of the opinion of the court of appeals by plaintiff's counsel was not erroneous. The opinion was the expression of the decision of the court of last resort as to the rights of plaintiff to recover and as to what was to be included within the rights. If an expression addressed to the facts of that case was included, no harm was done thereby to this case, which had no such fact. The particular clause of the opinion had solely reference to a system which took the property of another without compensation. There is nothing in the charge of the judge which will bear the