Supreme Court, November, 1921. [Vol. 117. of the injury is not generally considered very important. It should be substantial, of course, and not merely nominal, and the fact that numerous other persons have been injured by the act is no ground for a denial of the relief. When the damage or injury is common to the public and special to no one, then redress must be obtained by some other proceeding in behalf of the public and not by a private action." Again, in the case of Callanan v. Gilman, 107 N. Y. 360, 371, the court, said: "That the plaintiffs suffered some special damage not common to persons merely using the street for passage is too obvious for reasonable dispute. Direct proof of the damage was not needed. All the circumstances show it." The above language is quite appropriate to the case at bar. Again, in the later case of Ackerman v. True, 175 N. Y. 353, 360, the court, said: "It is well established by the decisions of this court that interferences with public and common rights create a public nuisance, and when accompanied with special damage to the owner of lands give also a right of private action to such owner, and that a public nuisance as to the person who is specially injured thereby in the enjoyment or value of his lands becomes also a private nuisance. That this encroachment upon the street was a public nuisance and that as to this plaintiff it was a private nuisance, we have no doubt." This language can be used with the same judicial force in the instant case, because the evidence before me shows that this improper use of Broad street has a tendency to, and actually does, impair the value of the adjoining property of the plaintiffs, and makes it more difficult to rent the same and reduces considerably its rental value. Clearly, this is a special and peculiar injury to the plaintiffs, and injunctive relief should be granted. Misc.] Supreme Court, November, 1921. Attached to one of the moving affidavits are copies of articles which appeared in a newspaper known as the New York Curb, of June 25, 1921, which calls itself the official paper of the New York Curb Market, and which copies the affiants received from the defendant's president. One article is entitled "City's approval of Continuance of Outdoor Trading and then recites: "Mr. Cook explained that he and the other officers of the organization had received assurances from the City authorities that Broad Street, between Exchange Place and Beaver Street, would remain open to the members as long as they wished to use it as the only real' Curb Market.' On the subject of strict enforcement of City Ordinances Mr. Cook added that The Curb Stock and Bond Market would see to it that none of its members or employees of members would be permitted to commit any nuisance of any kind." Then further in the issue of July 2, 1921, it is stated that the officers of the defendant corporation had interviewed the mayor of the city and the police commissioner and had secured their assent and approval to the occupancy of the site in question by the defendant and its members, and further, that the defendant and its members would be protected in their use of the street for business purposes. Of course, the statement that the mayor and the police commissioner had approved and assented to such use of the public street cannot be given any credence. It is to be presumed that public officers perform their duties and careless statements in newspapers to the contrary should be disregarded in the absence of proof. However, one fact remains self-evident and that is, that the police department for years has, by its inactivity, sanctioned this illegal use of the street by not only this defendant and its members and such others as Surrogate's Court, Bronx County, November, 1921. [Vol. 117. may trade there, but also the former Curb Market. The occupancy of said Broad street by the defendant and its members for business purposes is nothing short of a flagrant public nuisance, and if the police did their duty, they would remove from Broad street all persons who attempt to use it for trading purposes in the manner complained of. Had the police performed their duty this application would have been unnecessary. Motion granted, with ten dollars costs. Motion granted. Matter of the Transfer Tax upon the Estate of EDWARD FLYNN, Deceased. (Surrogate's Court, Bronx County, November, 1921.) Transfer tax-trust deed-gift to take effect at death of decedent Tax Law, § 220 (4). Decedent had executed a deed which provided for the transfer of $5,000 upon the trust to pay the income to him during his lifetime and upon his death to pay to the cestui que trust the principal with accumulations of income not theretofore paid. In the event of the prior decease of the cestui que trust, the principal of the trust fund with all accumulations of income was to be paid on demand to decedent and the trust thereupon to terminate. The deed also provided that the trust might be terminated by decedent at any time upon written notice to the trustee, in which event the securities or cash composing the trust fund were to be delivered by the trustee to decedent and become his property as if the deed had not been made. Three years later the deed was modified by a written agreement which in effect provided that nothing therein contained should transfer any ownership to the cestui que trust prior to the death of decedent, unless she made demand therefor during her lifetime. She made no such demand and received no part of the principal of the trust fund. Held, that the gift to her took effect in possession and enjoyment at the death of the decedent, and under section 220 (4) of the Tax Law was subject to a transfer tax. Misc.] Surrogate's Court, Bronx County, November, 1921. PROCEEDINGS On an appeal from an order assessing a transfer tax. Secord, Ritchie & Young, for executor and another, appellants. John J. Boyle, Jr., for State Tax Commission. SCHULZ, S. This is an appeal from an order entered upon the report of the appraiser in a transfer tax proceeding in so far as it adjudged that a transfer to one Mary Florence Martin under a deed of trust dated March 11, 1914 (in the notice of appeal stated to be dated March 14, 1914), and subsequently modified by an agreement dated March 26, 1917, is taxable. The deed of trust provided for the transfer to a trust company of the sum of $5,000 upon the trust to pay the income to the decedent during his life, and upon his death, to pay to the cestui que trust the principal with accumulations of interest not theretofore paid. In the event of the latter's death before that. of the decedent, the principal of the trust fund with all accumulations of interest were to be paid on demand to the decedent and the trust thereupon terminated. It contained the following provision: "This trust may be terminated by the party of the first part at any time during his life by giving the Trustee a notice in writing of his desire to terminate the same." In such event the securities or cash were to be delivered by the trustee to the decedent and became the property of the decedent, as if the trust deed had not been made. The agreement of March 26, 1917, modified the trust deed aforesaid and provided as follows: "The said deed of trust be and the same is modified to the extent of permitting the said Mary Florence Martin without Surrogate's Court, Bronx County, November, 1921. [Vol. 117. permission of Edward Flynn to withdraw from the Trustee, the whole or any part of the principal of the trust fund in the hands of said Trustee, and on her written demand, the Trustee shall assign or turn over to her cash or securities in which such trust fund may be invested to the extent that she shall demand the same. Such part of said trust fund as the said Mary Florence Martin may not so demand during her lifetime shall be paid over to her upon the death of Edward Flynn as provided in said trust agreement provided she survives said Edward Flynn, but if she does not so survive him, that part of the trust fund not demanded by her during her lifetime, on her death shall become the property of and shall be assigned to said Edward Flynn. Nothing herein contained shall transfer any ownership in any part of said trust fund to said Mary Florence Martin prior to the death of Edward Flynn unless she makes demand therefor during her lifetime as hereinbefore set forth. If Edward Flynn should give the trustee notice in writing of his desire to terminate the trust, the same shall have no effect whatever on any demand made by Mary Florence Martin as aforesaid at the same time or prior to the receipt by the Trustee of the notice of such termination which shall operate only upon the balance of such trust fund in the hands of the Trustee which shall remain after satisfying any such demand." The statute provides that property is taxable when a transfer thereof is made “* by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor or intended to take effect in possession or enjoyment at or after such death." Tax Law (Cons. Laws, chap. 60), § 220, subd. 4. There is nothing before me which would warrant a finding that the deed was made in contemplation of |