plaintiff in trust to the defendant to pay the income thereof annually or at convenient intervals in each year to or for the use and support of the plaintiff during his life, and at his death the said trust should cease and the principal and any unpaid portion of the income of the fund was to go and be divided among his heirs at law. By the prior provision of the will and codicils, after providing for the widow, the testator devised the remainder of his estate in substantially equal shares to his children, and thus by the last codicil these provisions as to the plaintiff were changed into a life estate with remainder to the plaintiff's heirs. The estate was distributed by the executors in conformity with the provisions of this testamentary instrument. An intermediate accounting was had, and a final judicial accounting and settlement subsequently, in which full distribution was made according to the terms of the will, and the executors were discharged from their trust.

The controversy in this case does not arise from any defect in the will, but from the transactions which took place many years prior to its execution and to the death of the testator. On the 11th of August, 1873, the plaintiff became engaged to be married to a lady who resided and was domiciled at Baden-Baden. The marriage was preceded by the execution of an antenuptial contract or settlement made by the plaintiff and his father and mother of the first part, and the intended wife, with her father and mother, of the second part. By this instrument the testator made some gifts of property to the plaintiff, including a house in Paris; but the main provisions of the instrument were obviously intended for the benefit of the wife. The only provision of the instrument that is of any importance in the present controversy is the following: "And the said James Phalen and Catherine S., his wife, do further respectively covenant and agree that they will make no distinction between their children as regards the proportion of their estates coming to each under their respective wills; account, however, being taken of any advance which may have been made to either during the lifetime of their said parents, the amount of which advance is in all cases to be deducted from the share to which such child would otherwise have been entitled." The theory of this action is that, inasmuch as the testator left the plaintiff's equal share, not absolutely to him, but in trust as before stated, the provision of the marriage settlement was violated, and hence conferred upon the plaintiff a right of action for specific performance. The complaint sets out the will and codicil and the other writing referred to, and demands judgment for the following relief: (1) That the trust under the seventh codicil in the fund held for the plaintiff be declared to be created in violation of plaintiff's rights under his contract, and the plaintiff is entitled to the principal of his said fund held by the United States Trust Company; (2)

that the trust under the seventh codicil be abrogated, and that the rema.nders in said fund given by the seventh codicil to the heirs of the plaintiff be extinguished, and that the plaintiff's two sisters, Florence and Catherine, and all other persons who may ever be his heirs at law, be barred therefrom, and that it be declared that the United States Trust Company holds that fund under the will as modified by the first six codicils; and (3) that the trust company be directed to turn over all of said fund, with the increment thereto and the accumulation thereof, to the plaintiff. There are some other statements and exceptions in the prayer, but they have no bearing upon the case. The trust company was the only defendant that appeared in the action, and it demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, but that judgment was reversed by the Appellate Division, and the plaintiff has appealed to this court.

The first question that is naturally presented is the legal effect and nature of that provision of the antenuptial agreement which has already been quoted. It is impossible, I think, to classify it among any of the recognized methods for the devolution of property or the creation of any particular obligation. It is not a testamentary instrument of any kind, since it was not executed according to the laws that provide for the distribution of property to take effect after death. It was not a conveyance of any property whatever. It created no lien upon any of the testator's estate. It was neither an executed nor an executory contract. It will be seen that 14 years had elapsed from the time that the marriage agreement was made until the testator executed the seventh codicil of his will, which it is claimed constituted a breach of contract and is clearly the sole reason for this action. If this theory of the case be correct, it must follow that, had the plaintiff, the son, developed in the meantime habits of extravagance, or become otherwise improvident and incapable of taking care of a large estate, a contingency that actually happened, the testator had disabled himself from so changing his will as to make what might seem to him a proper disposition of the plaintiff's share under all the circumstances. It is argued that the testator, 14 years before he executed the codicil, had so bound himself hand and foot that he was not at liberty to make what he thought to be a wise disposition of his property, simply because of his promise in the marriage agreement to make no distinction between his children. This proposition would seem to be so plainly contrary to good sense and to all our notions of law that the mere statement of it is sufficient to show its absurdity. Indeed, it is not attempted to sustain this action upon any principle of law or equity. or by arguments founded upon any rule c law or equity. What is claimed is simply

this: that there are to be found among the adjudicated cases remarks to that effect by learned judges in the discussion of cases, but where, it will be seen, the question now before us was not involved. It is perfectly safe to say that in no case has it yet been decided that a man who made a promise such as that contained in this case has disabled himself forever from making such a disposition of his property by will as seemed to him to be wise and judicious. A brief review of the cases cited in support of the complaint in this action will, I think, show that when they are fairly considered and analyzed they decide nothing that sustains the plaintiff in this case. The discussion in the opinions may be omitted. It will be sufficient to point out the questions that were actually involved and decided in the particular case.

The leading case cited and relied upon by the learned counsel for the plaintiff is that of Parsell v. Stryker, 41 N. Y. 480. In that case a person let a farm to his grandson for the life of the former. The tenant was bound to occupy the place and do all the work and was to have two-thirds of the produce, and the farm was to belong to the grandson on the death of the grandfather. It was subsequently agreed that the grandfather should make a will devising the farm to the grandson. It was held that an action for specific performance would lie for the performance of this agreement. Here the grandson went into possession and occupancy of the farm under a promise that it should belong to him at the death of the grandfather. The court decreed specific performance and the conveyance to the grandson by the defendants in the action, to whom it had been subsequently conveyed by the grandfather in violation of the agreement. That case has little, if any, bearing upon the case at bar. The fact that the grandson, on the faith of the promise, went into possession and occupancy of the farm and worked it, yielding a portion of the products of the lessor, was sufficient to confer upon a court of equity jurisdiction to decree specific performance. The promise to leave the farm to the grandson by will was of no consequence. A verbal agreement to give it upon the death of the owner would be sufficient when accompanied by possession. In fact, that is just what was decided in the case of Freeman v. Freeman, 43 N. Y. 34, 3 Am. Rep. 657. In a court of equity the grandson's case was just as strong without any promise to make a will as it was with a promise. That was a circumstance wholly immaterial to the right of action. It was the possession and occupancy of the farm by the grandson under a promise that his grandfather would give it to him that constituted the equitable claim of the plaintiff, and so it will be seen that the case decides nothing that can aid the plaintiff here. Edison v. Parsons, 155 N. Y. 555, 50 N. E. 265, cited in behalf of

the plaintiff, was a controversy arising out of an alleged agreement between sisters to make mutual wills. On the trial the complaint was dismissed, and the judgment was affirmed in this court. The case decides nothing that bears upon the nature or legal effect of the promise, which is the foundation of this action. In Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647, there was an agreement between the mother of a boy and the deceased. The deceased was to have, and the mother of the plaintiff was to surrender to her, the custody and control of the plaintiff. The deceased was to maintain him as her own child, and at her death give him all her property and make him her sole heir, and his mother was to have nothing more to do with him. This agreement was completely carried out and executed, but the deceased died intestate, and the boy, or his representatives, claimed the property owned by the deceased at her death. The latter left no father, mother, child, nor descendant, and no child was born to her after such contract was made. The court decreed specific performance so far as to declare that the property belonged to the plaintiff. This court, however, was careful to add at the end of the opinion this paragraph: "While we are of the opinion that specific performance of this contract was properly awarded, this decision is based solely upon the findings of the trial court and the particular facts and circumstances of this case. Yet it must not be regarded as an authority for maintaining such an action under different circumstances or upon other proof, as the granting or denial of such relief always rests in the sound discretion of the court, and should be denied unless the agreement is fair and just, and its enforcement equitable." It is hardly necessary to add that in the case at bar it is sought to maintain the action under very different circumstances, and under the language of the opinion just quoted it can have no application to this case.

These are the cases cited in behalf of the plaintiff from this court. There are numerous cases cited from the Supreme Court which call for a brief review. Shakespeare v. Markham, 10 Hun, 311, assumed the form of an accounting before the surrogate to recover from the estate of a deceased person a large sum of money claimed to be due the contestant for services rendered and for taking care and for supporting the testator in his old age under an expectation of receiving a legacy from him. The testator died without having made any testamentary provision in favor of the contestant. In the Surrogate's Court the claim was allowed, but the determination was subsequently reversed upon appeal, and the reversal was affirmed in this court. Shakespeare v. Markham, 72 N. Y. 400. Just why that case is supposed to be an authority in favor of the plaintiff in the case at bar it

plaintiff relies upon in this case can be made the subject of specific performance in a court of equity, or even of an action at law.

But perhaps the most conclusive argument and authority against the plaintiff's contention is to be found in the history of this very case. It seems that after the probate of the will and codicil the plaintiff filed a petition with the surrogate of New York to revoke the last codicil on the ground of fraud and undue influence. The question of the validity of this codicil was tried at great length before the surrogate, and he held that the codicil was valid and dismissed the petition. On appeal to the Supreme Court the question was again fully argued and heard, and that court unanimously affirmed the decree of the surrogate. An appeal was taken to this court, and the decision of the courts below was unanimously affirmed on the opinion below. Matter of Phalen (Sup.) 19 N. Y. Supp. 358, affirmed 140 N. Y. 659, 35 N. E. 893. The court found, as will be seen from the opinion, that the plaintiff had separated from his wife and was incompetent to manage property by reason of bad habits. All this took place nearly 15 years ago, and several years after the father's death. Now, if it be true, as asserted upon this appeal, that the father had bound himself by a valid contract between himself and the plaintiff not to make the codicil in question, and it was made in violation of the rights of the son, it was, as between the son and the estate, simply invalid and void, and should have been canceled and revoked. The legal effect of the decision is that the testator had the right and the power to make the codicil which constitutes the sole complaint of the plaintiff, and the testamentary power and capacity of the father was in no wise restricted in law by anything contained in the so-called contract upon which the present action was based. It cannot be supposed that this court and the court below would declare valid a testamentary instrument made in violation of a binding contract. The question then before the court is the same question now presented, namely, the right of the father to alter his will and make such disposition of his property as he thought best, and it cannot be doubted that he acted wisely in thus protecting the son from the result of his own improvidence. It would, in our judgment, be very unwise to reopen the controversy now, 15 years after it had been settled by the court, and after the estate had been distributed and the executors discharged. The case in its general aspects does not seem to be so meritorious as to warrant such a result, and I venture to say tha not a single case can be found in this state where such an action was sustained. If the testator had, by his promise in the marriage contract, disabled himself from changing his will, then why, it may be asked, did this court hold the last codicil valid?

Passing from the question of the nature and validity of the promise in question, there are two other points that should be stated. If the promise set out in the complaint is a contract or binding obligation, it certainly must be supported by a sufficient consideration. It was a promise, in substance, that, if the deceased made a will at all, it should be in a particular form, based upon the principle of equality between his children. Now, what consideration was there for the promise moving from the son to the father? It is said that marriage is a good consideration; and so it is between the parties, but it does not follow that it is a consideration for the promise of third parties. What did the son give the father that would constitute a consideration for the promise? Nothing whatever. It is true that he afterwards married; but his father never requested him to marry, and he never promised his father that he would. That was the plaintiff's own voluntary act. Did the plaintiff suffer any detriment in consequence of his father's promise? Certainly not, unless we are prepared to hold that it is a detriment to a young man to marry, sufficient in the, eye of the law to form a consideration for a promise on the part of another. I assume that that proposition will meet with no favor from any direction. The deceased secured no benefit, pecuniary or otherwise, from the promise on his part; and the question returns again, what was the consideration moving from the son to the father that supports this promise which is called a contract? If the son had refused to marry, and the father had sued him for specific performance, of course such an action would be absurd, and yet a court of equity will not enforce a promise unless it is mutual. Both parties must be bound, and, if both are not bound, neither is bound. Consideration is the important element of a contract, and must not be confounded with motive, which is not the same thing as consideration. The latter means something which is of value in the eye of the law moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant. It is the price or matter of inducement to the contract, whether it be the compensation that is paid or the inconvenience that is suffered by the party from whom it proceeds. Bouv. Law Dict. 401. Chancellor Kent thus defined "consideration": "There must be something given in exchange, something that is mutual or something which is an inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption." 2 Kent's Com. 464. So that the promise in this case is not supported by any consideration, and hence the deceased had the right at any time before his death to make such a disposition by will of his property as he thought best.

This is an action in equity. The character of the action is stamped by the relief demand

ed, and that has already been stated. Unless the complaint states facts sufficient to invoke the jurisdiction of equity, then it does not contain a good cause of action. The rule in such cases is this: "In case a plaintiff has the right to maintain an action at law or a suit in equity, and he elects to bring a suit in equity, demanding only equitable relief, but fails to state sufficient facts in his complaint to constitute an equitable cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained, though the facts alleged are sufficient to constitute a legal cause of action; and so, in case he elects to bring an action at law, demanding only legal relief, but fails to state sufficient facts in his complaint to constitute a legal cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained, though the facts alleged are sufficient to constitute an equitable cause of action." Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362, 49 N. Y. Supp. 500; Edson v. Girvan, 29 Hun, 422; Swart v. Boughton, 35 Hun, 281; Willis v. Fairchild, 51 N. Y. Super. Ct. 405; Fisher v. Charter Oak Life Ins. Co., 52 N. Y. Super. Ct. 179; O'Brien v. Fitzgerald, 143 N. Y. 377, 38 N. E. 371. This must be the true rule in such cases, since by section 1207 of the Code, where the defendant does not answer, the plaintiff can have no judgment except that demanded in the complaint. The facts stated in the complaint in this case relate exclusively to the breach of an alleged contract between the plaintiff and his father. If, therefore, the plaintiff has any cause of action whatever, it is an action at law to recover damages for the breach. There are no facts stated that bring the case within the jurisdiction of any recognized department of equity. So that, in whatever aspect the case is considered, it must be held that the demurrer was well taken, and that the judgment should be affirmed, with costs.

CULLEN, C. J., and WILLARD BARTLETT and HISCOCK, JJ., concur with WERNER, J. O'BRIEN, J., reads dissenting opinion, and HAIGHT and VANN, JJ., concur in result thereof.

Ordered accordingly.

(186 N. Y. 237)

In re VAN CORTLANDT AVE. IN THE CITY OF NEW YORK.

(Court of Appeals of New York. Oct. 16, 1906.) EMINENT DOMAIN-PROPERTY OF CITY TAKEN FOR STREET PURPOSES-RIGHT OF CITY TO COMPENSATION.

Under section 995 of the Greater New York Charter (Laws 1901, p. 423, c. 466), which provides that, if any lands belonging to the city shall be required for the purposes of any street improvement, "the city shall be entitled to compensation and recompense for the loss and dam

age it may sustain, and shall be bound to allow and pay for the benefit and advantage it may be deemed to acquire thereby in like manner as other owners," where a new street was opened in part over land previously acquired by the city in fee simple for the purposes of its water supply and paid for from the proceeds of bonds which were a general charge against the city, while the cost of the street is to be paid by special assessments on the property benefited, the city is entitled to an award of damages in the same manner and to the same extent as other landowners.

Willard Bartlett, J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Application of the mayor, aldermen, and commonalty of the city of New York as to acquiring title for the opening of Van Cortlandt avenue. From an order of the Appellate Division (100 N. Y. Supp. 1147), affirming an order of the Special Term confirming the report of commissioners of estimate and assessment, one assessed for the benefits thereof appeals. Affirmed.

John C. Shaw, for appellant. John J. Delany, Corp. Counsel (Theodore Connoly, of counsel), for respondent.

CHASE, J. The only question involved in this appeal is stated in a stipulation signed by the parties as follows: "Is it proper for the commissioners to make awards to the city of New York for damage to parcels Nos. 1, 1a, 1b, 10, and 10a in this proceeding?" By chapter 445, p. 512, of the Laws of 1877, the commissioner of public works in the city of New York was authorized to acquire real estate as therein defined for maintaining, preserving, and increasing the supply of pure and wholesome water for the use of said city. Pursuant to that act the city acquired the title in fee to certain real property, under which was laid what is known as the "Bronx river water supply pipe line." The real property so taken by the city was paid for from the proceeds of bonds issued by the comptroller of the city and payable by general taxation pursuant to the terms of said act. On the 15th day of May, 1896, the board of street opening and improvement of said city adopted a resolution requesting the counsel to the corporation to acquire title "wherever the same has not been heretofore acquired for the use of the public to the lands, tenements and hereditaments that shall or may be required for the purpose of opening and extending Van Cortlandt avenue" between points therein named. And it was by it further resolved "that the entire costs and expense of such proceedings shall be assessed upon the property deemed to be benefited thereby." A petition for the appointment of commissioners of estimate and assessment was thereupon made, in which it is recited that the board of street opening and improvement deem it necessary, useful, and proper for public interest and convenience to acquire all the lands and premises therein particularly described for the open