The

is contingent for the reason that the persons to whom the estate is limited to take effect remains uncertain. The children of the testatrix now living may die leaving children who will take in their parents' stead when the event occurs upon which the precedent estate is terminated. The estate, being a contingent remainder, is therefore inalienable. Leonard v. Burr, 18 N. Y. 96-107; Radley v. Kuhn, 97 N. Y. 26-34. The deed created a life-estate in Mrs. Murray. Her will created a life-estate in her husband and three daughters, determinable upon the marriage of two of the daughters; each taking as tenants in common with cross-remainders, the same cannot be terminated except upon the death of the four life-tenants without the marriage of two of the daughters, so that, with the exception of the undivided one-fourth originally taken by the survivor under the will, more than two lives must pass before the life-estate would be terminated, and this would be so even omitting the life-estate created by the deed; but, under the statute to which we have already called attention, we think this life should be counted. rule is that where, by the terms of a deed creating an estate, there may be an unlawful suspension of the power of alienation, the limitation is void, although it turns out by a subsequent event that no actual suspension beyond the prescribed period would have taken place. Hawley v. James, 16 Wend. 121; Purdy v. Hayt, 92 N. Y. 446. 457; Haynes v. Sherman, 117 N. Y. 433, 437, 22 N. E. Rep. 938. The estate may yet be terminated by the marriage of the second daughter, but before the happening of that event all of the other lifetenants may die, thus leaving the provision within the condemnation of the statute. It may be claimed, however, that, as to the undivided one-fourth originally taken by the surviving life-tenant under the will, as to that interest, only two life-estates have been created. The case of Purdy v. Hayt, supra, adds weight to this claim, and presents a serious question. But at this time it is impossible to tell who will be the surviving life-tenant, or whose one-fourth interest would be within the provisions of the statute. The case is therefore presented where threefourths of the life-estate devised is void, under the statute, while the other onefourth may be valid, but it cannot be determined which is valid or which condemned until after the death of three of the life-tenants. The person being unknown, and the claim contingent, we incline to the view that this is also within the condemnation of the statute. The provisions of section 17 of the statute to the effect that, when a remainder shall be limited on more than two successive estates for life, all the life-estates subse

quent to those of the two persons first entitled thereto shall be void, doubtless refers to estates in which the remainder is vested, and is not contingent. In such estates the power of alienation is not suspended. Purdy v. Hayt, 92 N. Y. 446-451. The estate attempted to be created by the will being void, the power of sale authorized to take effect at the termination of the estate becomes inoperative, and must be regarded as also void. Jt follows that, upon the death of Mrs. Murray, the fee absolute vested, under the deed, in her children then living, and the issue of such as were dead. The judgment of the general term should be reversed, and that of the special term affirmed, with costs. All concur, BRADLEY, J., in result.

1. Act N. Y. 1860, c. 10, prohibiting the building of any railroad "in, upon, or along any of the streets or avenues of the city of New York," applies to and prohibits the building of a railroad across the streets of that city.

2. Plaintiff instituted proceedings under the general railroad act of New York of 1850, to acquire land for building an elevated railroad 15 miles long, passing through the site of solid blocks of buildings in the city of New York upon which express trains of the largest passenger capacity may run at great speed, the road to be constructed in the form of a two-story viaduct, the first being about 50 feet wide and about 60 feet above the street level, and the second being above the first with the same center line, 22 feet wide on top and 75 feet above the street, each having two tracks, and consisting mainly of brick arches, through the blocks and crossing the streets by steel bridges. Held, that the railroad act of 1850 confers no power to build such a railroad. Affirming 10 N. Y. Supp. 849. EARL, J., dissenting.

Appeal from supreme court, general term, first department.

Proceeding by the People's Rapid Transit Company, a corporation, to acquire land in the city of New York, under the right of eminent domain, for railroad purposes. From a judgment refusing the petition, petitioner appeals.

Albert Stickney, for appellant. Geo. A. Strong, for respondent.

PECKHAM, J. There are two grounds for denying this application.

1. It seems to me plain that the act of 1860 (chapter 10) interposes an insurmountable objection to the granting of it. It is stated in behalf of the petitioner that there is no intention of building the road through the length of any street, but only across such streets as it will be necessary to cross in its proposed route through the city, from its northern boundary to the City Hall park. The act of 1860 prohibits the building of any railroad "in, upon, or along any of the streets or avenues of the city of New York." It is contended that this act, properly construed, only prohibits the building of a railroad through the length, or a portion of the length, of a street, and does not reach the case of a railroad which merely crosses the streets of that city. I cannot agree to any such

narrowing of what seems to me the plain meaning of the language used in the act. If the road was built through the length of a street, its location might be fairly described by the use of either one of the three words contained in the statute, “in, upon or along" such street. But to describe a road which simply crossed a street as being built along" such street would be using language neither appropriate nor exact. To say of such a road that it would be "in" or "upon" that street at the point where the road crossed it, would be both appropriate and exact. There is a difference in the meaning of these three words as used in the statute, and some effect should be given to such difference. If their meaning be construed to simply prohibit a railroad along the length of the street, no effect whatever is given to this difference. The words used are certainly apt to describe a railroad which crosses a street. Such a railroad is plainly, for that distance, both "in" and "upon" the street which it crosses. If not "in or upon" it at that point, where is it? No description of its whereabouts at that particular point is better than to say it is "in or upon" the street which it crosses. It is sufficient and it is true. It is not necessary that the railroad should pass along the surface of the street in order to be in or upon it. In re New York D. R. Co., 107 N. Y. 42, 14 N. E. Rep. 187. FINCH, J., in the above case, (page 52,) in alluding to the injury which street railroads might work to the public rights, and to the necessity of guarding and protecting such rights, said: “But street railways may occupy every place in a city, and iron the whole surface, or spin their webs in the air over every avenue, or undermine the entire system of city streets." The proposed railroad in that case was under ground. There is no doubt that a railway under, or elevated above, the surface of a street is still a street railway in that street, and when the road crosses the street, either under or above the surface, it is still "in or upon" such street at the point of crossing. The language of the statute seems so plain and extensive as to furnish a full and conclusive answer to the application of the petitioner. But the researches of counsel have brought to light what is thought to be a legislative interpretation of the meaning of this language, and it is insisted that, whenever the legislature bas meant to include the crossing of a street as within its permission or prohibition, it has used such a word as "across, "cross," or "intersect." A careful examination of those statutes reveals, as it seems to me, the fact that those words were generally used with reference to the distinction which the context made between laying a railroad along a highway or canal and across it. No one supposes that there is no difference between a permission to build a road along a street and a permission to cross it. But I think that, in merely crossing it, the railroad at the place of crossing is "in or upon" the street which it crosses just as much as it is in or upon the street along whose length it is laid.

And, again, it is well known that some

times more words are used in a statute than are actually necessary to express the meaning of its framers. The fact that the word "across" or "intersect" has been frequently used in former statutes where they intended to permit or prohibit the crossing of a street is not of any great importance in the construction of another statute in which such word is absent, provided the language actually used is suffi. cient and appropriate to express the idea that the crossing is permitted or prohibited. If the language be broad enough, and there be no other ground for narrowing its actual meaning, it should not be narrowed because in some other statutes additional words have been used to express the same idea. The language of the act of 1860 is as apt and appropriate for the purpose of prohibiting the crossing of a street as it is the traveling through its length, and the abutting owners upon the streets which are crossed would be entitled to receive as much protection by reason of the act as their brethren dwelling in the street along the length of which the track might otherwise run; and, certainly, they are as much entitled to it. Although not so numerous, yet the abutting owners of property on the various streets crossed by a railroad running from Spuyten Duy vil to the city hall in the city of New York would make no contemptible showing in numbers, while the value of the property to be necessarily and immediately affected by the building of the road, it is safe to say, would run up into millions of dollars. No reason can, as it seems to me, be suggested for attempting to narrow by construction and explanation the otherwise plain meaning of this statute. The railroad contemplated is a vast undertaking. Competent engineers estimate its probable cost, including right of way, from Spuyten Duyvil to the park at the city hall (a distance of about 15 miles) at $86,000,000. It is to pass through great numbers of solid blocks of dwelling-houses and stores, many of them in the heart of the city. A general statute under which a corporation could be formed for building this kind of a railroad would seem to be the most efficient way to secure and conserve all rights. The work of demolition and construction under such peculiar circumstances, and upon so vast and important a scale, should be the subject of great deliberation on the part of the public authorities, so as to furnish the utmost protection and secure the least possible inconvenience to the public and the owners of property adjacent to the contemplated work. The character of such a work, and the manner of its execution, should be provided for and particularly described. The responsibility of the company to the city or the state for the violation of any of its duties in the course of the construction of the road should be clearly defined, and ample guaranties exacted for the meeting of such responsibilities, and for the fulfillment of such duties by the company. It might be that provision should also be made for the payment to the city of a certain proportion of the profits above an amount to be stated. It may be said that the city can provide for all these matters before

giving consent to cross the streets. This may be true. Whether such security be sufficient or not is not for this court to say. It is, however, much better that the conditions upon which the work was to proceed should be inserted in a general statute in advance of the organization of a company for the purpose of doing the work as directed by it, rather than that they should be imposed after the company was organized, and had done more or less of the work of construction. It would also prevent the use of any influence to make the condition of consent on the part of the city as purely perfunctory as possible. The conditions to be performed by the company in the case of a general statute would be known in advance, and would be unalterable by the city, and all intending investors in the project would have full knowledge of the same in advance of a subscription. Matters of this nature have been alluded to for the purpose of showing the very great importance of this work, and to give a reason why the meaning of the language of the act should not be unnecessarily narrowed. If the statute of 1860 furnish an answer to this application, the whole subject can be fully and intelligently discussed, and a general act, having all proper safeguards, may be passed which will intrust any city through which a road of the kind herein contemplated is to run with such powers in the matteras ought to be given to a municipality when an undertaking of this magnitude and importance is to be carried on, and where the citizens thereof would be so vitally interested in the work and in the manner of its execution. The amendments to section 28 of the general railroad act of 1850, as contained in chapter 133 of the Laws of 1880, and chapter 724 of the Laws of 1887, do not grant the authority made requisite by the act of 1860, and were never intended for any such purpose. I think the order should be affirmed, because the act of 1860 prohibits the building of such a road.

2. I think there is also another equally fatal objection to this application. It is my belief that the general railroad act of 1850 confers no right upon a company incorporated under it to build any such structure as the petitioners have here in mind. We have lately held that the act permits the organization of horse railroad companies under its provisions. In re Washington St., etc., R. Co., 115 N. Y. 442, 22 N. E. Rep. 356. Permission to build and operate railroads, to transport property and persons upon the same by animal power, as well as by steam, or by a combination thereof, had been granted by the legislature many years prior to the passage of the act of 1850, and, when such last named act was passed, the method of propulsion by animal power was familiar to all. The language of the act in subdivision 7 of section 28 specially included the right of corporations formed under it to transport persons and property by the power or force of animals as well as steam. Horse railways were organized under the act almost immediately after its passage, and continuously, without any question of right, for many years. The contempo- |

rary and practical construction given to the act by incorporators under it, by the public officials, and by the public itself, was in favor of its application to horse railroads. This court in the case above cited held under these circumstances that it included corporations of that kind; but there is nothing in that case that determines the question now before us. The distance is a long one between a decision that horse railroad companies can be legally organized, and can operate their road under the act of 1850, and one that should hold it proper to organize under that act and build and operate such a road as these petitioners claim the right to build and operate. They seek to build and operate a road in New York city, upon which, as they say, "express trains of the largest passenger capacity may be run at an average speed of fifty miles an hour." The road, as the petitioners also state, is to cross all the streets within the city at an elevation which will not limit, restrict, or in any wise interfere with their present or prospective public use. This is to be accomplished by elevating the tracks above the ground, and passing through the solid blocks of buildings in the city which occupy the proposed site of the road. To do this the property so situated must be taken, and the buildings destroyed. As contained in the moving papers, it is said: "The idea of construction may be described as a 'two-story viaduct,' the first flat having a width of fifty feet, with an elevation of about sixty feet above street level. The second story, with the same axis or center line as the one on which it rests, would be twentytwo feet wide on top, seventy-five feet above the street. The lower viaduct will have a track on each side or edge. The upper one, two tracks side by side. These structures are to be mainly of brick arches, both in longitudinal and cross sections, the lower one being, as it were, complete in itself before the second tier of arches, forming the second story, is raised upon it. This system applies to all the work through the blocks. The streets will be spanned by steel bridges of the most modern and most approved designs. It is contemplated to have some thirtyone stations between Spuyten Duyvil creek and the Battery. * # Passengers to be lifted to and lowered from the stations by elevators, of which there are to be four at each station, two on each side of the crossing street, of capacity to give ample room for all comers and goers. It is plain that no such vast viaduct as is above described was ever in the legislative mind when the general railroad act was passed. Nothing of this kind was then known. The idea is comparatively new. The engineer (now deceased) who originated it, or first gave it study and attention enough to come to some practical conclusion regarding such an extraordinary project, felt the necessity on account of its novelty and cost of having other and most prominent as well as competent professional opinion as to its feasibility and capacity to perform the service which would be required from a structure like this, prior to placing the plan before

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