THIRD DEPARTMENT, JULY TERM, 1896.

[Vol. 8. ture, provided that the plaintiffs or their tenant, paying the annual water rent charged against said premises, were authorized to use 150 gallons of water daily and no more; and if more water was used, that the water commissioners were authorized to shut off the supply pipe. The defendants, therefore, in giving notice that unless the said rates was paid, the water would be shut off, were merely threatening to do a legal act. The plaintiffs paid the ordinary water tax to obtain an ordinary supply of water for the use of their tenant occupying their premises, with knowledge of, and bound by, the provisions of the local law, which provided that if the occupant of the building should use more than the 150 gallons daily, which were authorized, the supply pipe might be cut off. The plaintiffs could not, by obtaining for McGrail a right to use 150 gallons of water a day, confer on him authority to violate the legal ordinances of the water commissioners, to use an unlawful amount of water, or prevent the defendants, in case of such unlawful use by McGrail, from cutting off his supply of water.

Although section 25 of the act of 1850, as amended in 1854, contemplates that, where more water is used than the quantity required for ordinary purposes, a permit shall be granted and payment made before such use, it cannot be doubted that the water commissioners, when an occupant of a building without a permit or pre-payment or notice wrongfully uses an amount in excess of the amount authorized, may, under the provisions of section 19, and the other provisions of the acts of 1850 and 1854, make rules and regulations applicable to such cases. Under the general power conferred upon them by such section they can fix a price for extra water thus used without permission, and can provide for shutting off the water in case of non-payment of such special rates.

I think, therefore, that in serving the notice of which the plaintiffs complain, the defendants were merely performing their duty as public officers of the city of Albany in attempting to prevent the wrongful appropriation by the plaintiffs' tenant of an extra supply of water without payment therefor.

It is not apparent from the moving papers how shutting off the water from the premises in question by the defendants would cause an injury to the plaintiffs. The property is in possession of their tenant under a lease extending to the year 1900, and the lease does

App. Div.]

THIRD DEPARTMENT, JULY TERM, 1896.

not provide for the payment by the lessors of any water rates for water used by the tenant. The plaintiffs have paid the regular water rent which gave to the tenant 150 gallons daily. If he wrongfully and unlawfully used more water than he was authorized to, without payment and permission in advance, as required by the ordinances, the injury to him resulting from such wrongful act would not give him any claim against his landlords. The injury that might be produced by shutting off the water would be an injury to the occupant of the premises and not to the plaintiffs. I am unable to see how the tenant could successfully claim an eviction in consequence of the shutting off of the water as suggested, or a right to leave the demised premises as being untenantable under the provisions of chapter 345 of the Laws of 1860, for that chapter only confers such a right on the tenant when premises become untenantable, without any fault on his part; and if cutting off the supply of water from the premises in question would render them untenantable, it would be the result of the wrongful violation of the said ordinances by the tenant.

I am also under the impression that in any view of the case the plaintiffs are not entitled to maintain this action for an injunction. It has long been settled that courts of equity will not sustain an action to restrain the collection of a tax except under circumstances of great necessity and to prevent irreparable damage (Rome, Watertown & O. R. R. Co. v. Smith, 39 Hun, 332-337, and authorities cited); that the same rule should apply where the court is asked to restrain proceedings to enforce the payment of a water tax assessed by a municipal corporation, and that no such state of facts are shown in the moving papers as justified the court in granting the temporary injunction under the rule above referred to. But I deem it unnecessary, in view of the conclusions above arrived at, to consider this branch of the case or the other questions discussed in the briefs of counsel.

The order should be reversed, with costs and disbursements, and the motion denied, with costs.

All concurred, except HERRICK, J., not sitting.

Order reversed, with costs and disbursements, and motion for injunction denied, with costs.

THIRD DEPARTMENT, JULY TERM, 1896.

[Vol. 8.

JAMES BUNYAN, Respondent, v. MARY F. PEARSON and Others, Defendants, and JOHN C. PEARSON and MARY K. PEARSON, Appellants.

if he shall survive

Will — derise to a woman for life and after her death to her son, her; but if he dies without issue before his mother, then to her effect of the death of the son, leaving issue, before his mother — devise by implication not favored. Isaac Keeling, by his will, gave to his daughter, Mary Pearson, wife of John Pearson, a life estate in certain real estate, and further provided as follows: "And after her decease I give and devise all my said lands and real estate to John K. Pearson, youngest son of said Mary Pearson, and to his heirs and assigns forever, if he shall survive his said mother; but in case he shall die without lawful issue before the death of his said mother, then I give and devise the said lands and real estate, and every part thereof, with the appurtenances, unto the said Mary Pearson, her heirs and assigns forever." John K. Pearson died, leaving his mother, Mary Pearson, him surviving, and also leaving two infant children.

Held, that the use of the words “if he (John K. Pearson) shall survive his said mother" did not indicate an intent on the part of the testator that the children of John K. Pearson should take the remainder, devised to him, in case he died during the lifetime of his mother, with sufficient clearness to create an estate in them by implication.

Semble, that John K. Pearson took a vested remainder in the mortgaged premises, defeasible only in the event of his death before his mother, without issue, and that, as he left issue, the remainder was vested;

That the law favored the vesting of estates, and, as it was conceded that the testator intended effectually to dispose of all his real property, that the words “if he shall survive his said mother" should be deemed to refer to the period of the enjoyment of the estate, and not to the time of its vesting;

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That the words in question should be read with the following sentence, viz.: "But in case he shall die without lawful issue, before the death of his said mother, then I give and devise the said lands unto the said Mary Pearson, her heirs and assigns forever," and that this latter sentence indicated the intent of the testator to be that, if his son left issue, he should take the estate, whether he died before or after his mother;

That the testator gave the estate to John K. Pearson, his heirs and assigns forever, and that it was only in the event of John K. Pearson's dying before his mother, without lawful issue, that he devised the lands to another person. APPEAL by the defendants, John C. Pearson and Mary K. Pearson, by their guardian ad litem, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 27th day of January, 1896, upon the decision of the court confirming the report of a referee,

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THIRD DEPARTMENT, JULY TERM, 1890.

as adjudges and directs that the piece or parcel of land first described in the complaint in this action, and first described in the said judgment, and "containing thirty-nine acres, one-quarter and nineteen rods of land, excepting and reserving from the above-described premises that portion thereof heretofore conveyed to Elihu Phinney, supposed to contain about fifteen acres, more or less," be sold, and that the referee execute to the purchaser or purchasers thereof, a deed of the premises sold; and also from so much of the said judgment as directs the payment of the moneys or any part thereof arising from such sale of the first described parcel of land, to the plaintiff or his attorney; and also from so much of said judgment as adjudges that the said defendants John C. Pearson and Mary K. Pearson, and all persons claiming under them or either of them, be barred and foreclosed of all right, claim, lien and equity of redemption in the said first-described parcel of land.

Frank L. Smith, for the appellants.

J. William Taylor and Lynn J. Arnold, for the respondent. PUTNAM, J.:

This action was brought by the plaintiff to foreclose two mortgages given by Mary Pearson, John K. Pearson and Mary F. Pearson, his wife. The mortgagors claimed title to the premises in question under the fifth clause of the will of Isaac Keeling, deceased, which is as follows: "I give and devise unto my daughter, Mary Pearson, wife of John Pearson, of the town of Roseboom, in the county of Otsego aforesaid, all that certain farm and lot of land, situate in the town of Otsego, on which I now reside, and also the wood lots, and all my real estate wheresoever situated, with the appurtenances, to have and to hold the same, and every part and parcel thereof, for and during her natural life; and after her decease, I give and devise all my said lands and real estate to John K. Pearson, youngest son of said Mary Pearson, and to his heirs and assigns forever, if he shall survive his said mother; but in case he shall die without lawful issue before the death of his said mother, then I give and devise the said lands and real estate, and every part thereof, with the appurtenances, unto the said Mary Pearson, her heirs and assigns forever."

John K. Pearson, after the execution of said mortgages, died, leaving said Mary Pearson surviving him, and also leaving two

THIRD DEPARTMENT, JULY TERM, 1896.

[Vol. 8. infant children, the defendants John C. Pearson and Mary K. Pearson, who, by their special guardian, answered, setting up that the fifth clause of the will of Isaac Keeling, deceased, above quoted, gave to John K. Pearson only a contingent remainder in the mortgaged premises in case he survived his mother, which could not vest until her decease; that as he had died in the lifetime of his mother, leaving lawful issue, they have taken an absolute title in fee to the said premises, subject to the life estate of Mary Pearson.

The trial court held that, under the provisions of the will, John K. Pearson took a vested remainder in the mortgaged premises, defeasible only in the event of his dying before his mother without issue, and that his children took the same by descent from him.

If the words "if he shall survive his said mother" had been omitted from the said fifth clause, no doubt could have been entertained that the remainder, devised to John K. Pearson, vested at once on the death of the testator. (Avery v. Everett, 110 N. Y. 317; Coe v. De Witt, 22 Hun, 428; Grout v. Townsend, 2 Den. 336.)

But it is claimed by the appellants that those words evince an intent on the part of the testator that the estate devised to John K. Pearson should not vest unless he survived his mother; that the estate so bequeathed was contingent upon such survival; that the testator evidently meant to dispose of all his real estate, and from that fact, and the language used, a devise of such remainder to the appellants, the children of said John K. Pearson, is implied.

In Post v. Hover (33 N. Y. 593-599) Judge DENIO, in delivering the opinion of the court, says: "To devise an estate by implication, there must be such a strong probability of an intention to give one, that the contrary cannot be supposed. (Jarman on Wills, 465.) Devises by implication are sustainable only upon the principle of carrying into effect the intention of the testator, and unless it appears, upon an examination of the whole will, that such must have been the intention, there is no devise by implication."

To the same effect see Macy v. Sawyer (66 How. Pr. 381); Rathbone v. Dyckman (3 Paige, 9).

I am unable, after a careful consideration of the language used in the said fifth clause, to discover that it discloses so clear an intent on the part of the testator that the appellants should take the remainder devised to John K. Pearson in case of his death during