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are not entitled to be given the pregnant significance contended for by the appellant, but they are to be read, in the light of the other language in the will, as ordinary words of gift.

The construction is not free from difficulty, and it is possible, of course, to find decided cases which may seem, if the language of the opinions alone is regarded, to be in point either way upon the argument; but each case as it arises must be viewed and decided according to its own particular facts and circumstances, and will become a controlling precedent only where the facts are the same. With each reading of these instruments my mind is impressed with the evidence of a purpose so strong as to dominate all other inferences.

All the cases admit, and it is beyond all question, that the intention is the paramount rule of construction, and if the intention is apparent that the estate shall vest in remainder immediately upon the testator's death it must control and supplant the rule, which is applicable where there is merely a direction to divide at a future time. As Judge Finch observed in Re Tienken, 131 N. Y. 391, 30 N. E. 109, with reference to the rule of construction in cases of a testamentary direction for future payment or delivery: "I have observed in general that where it (the rule) has prevailed it has been where no contrary intention was fairly indicated, and where its own force was somewhat strengthened and its indication corroborated by further facts," an observation which Judge Landon in Dougherty v. Thompson, 167 N. Y. 484, 60 N. E. 760, characterizes as "a just remark." In Smith v. Edwards, 88 N. Y. 92, Judge Finch had also said of this rule: "It applies only where beyond the direction for future distribution there are no words and no provisions which import a present or vested gift, or indicate such an intent." In that case he had "explored the will in vain" for any adequate ground which would take the bequest out of the operation of the rule. If, in the present case, there was nothing but the second clause of the codicil, I should find the same situation as did Judge Finch in Smith v. Edwards. Dougherty v. Thompson, supra, is, in my opinion, distinguishable from the present case by its facts. The provision for final distribution there was that, upon the death of the longest liver of two parents named, "this trust shall cease, and the trustees shall forthwith transfer and pay over the whole of the trust property, and the proceeds and increase thereof, to their children,

* and, if any of said children shall have died leaving issue, such issue shall receive their parent's share." It was said of this provision, in Judge Landca's opinion, that this was a direction to transfer and pay over the corpus "to a class which he [the testator] can describe, but whose members he cannot name or number, but who can be named and numbered upon the termination of the trust estate, when the transfer and

payment over are directed to be made." Judge Landon further observed that "the indications are strong that the postponement was both for the benefit of the children, and to find out to whom and to how many the direction to transfer and pay over could be made on the appointed day." In the present case the persons to take are named and are designated as the contingent owners of the trust estate upon the happening of the conditions terminating it. In Re Crane, 164 N. Y. 71, 58 N. E. 47, the testamentary provision was: "Upon the decease of my said wife, I order and direct that my estate be divided as follows, viz.: Equally between my brothers and sisters and my niece Flora W. Bulkley, each one to take one equal share thereof; * * * provided, further, that if any of my said brothers and sisters and niece shall depart this life before my said wife, leaving lawful issue him or her surviving, then the share of the one so dying shall be paid over to their issue in equal shares." That provision was held not to contain any words importing a gift other than in a direction to divide or to pay over at a future time, and therefore there was no present vesting in those who were to take upon the termination of the life estate. The case, as Chief Judge Parker considered it, was one where "the class was to be determined at the death of the widow, and to consist of the brothers and sisters and niece surviving her, and the issue of those who had died leaving issue." In referring to the case of In re Embree, 9 App. Div. 602, 41 N. Y. Supp. 737, affirmed here on the opinion below (154 N. Y. 778, 49 N. E. 1096), he uses this language: "Whatever contingency existed at the time the will was executed entirely disappeared at the time of the testator's death; for the testator left no issue, and the class was fixed upon his death, and consisted of the children of his brothers and their heirs." The chief judge very correctly admits that, if the class to take is fixed at the testator's death, there is a vesting of interest. He holds in his opinion that where there are words importing a gift, in addition to the direction to pay over, the general rule of construction does not govern, and the situation is precisely as if the will contained words of gift. There appear to me to be in the present case, within the whole scheme of these two instruments, exe cuted upon the same date, elements which eliminate that notion of futurity in the vesting of the rights in remainder which characterized the wills in Dougherty v. Thompson and In re Crane. It would not be profit. able to consider the many cases in which this troublesome question has been discussed. If, as I read this will, the intention of the tes tator was to dispose presently of his estate in favor of the persons he names, to the exclusion of any other contingent interests, then the case should be decided upon its peculiar facts. From the moment of his death the persons he selects as the contingent recipients

of Charles' trust estate were in being and capable of taking upon Charles' death. He did not have in mind a class to be ascertained at the time when the fund might be payable. He was not mindful of changes in the persons who might take, and therefore restrictive in his testamentary provisions, so that the property should only vest in possession at the future period. He meant that his son William and his daughter Sarah should have and enjoy the trust fund, if neither his grandson nor his grandson's issue received it. There was no uncertainty as to the persons to whom he intended the remainder to go upon the happening of the event. When he says "then to pay," he merely indicates the time when the right of possession is to begin, and does not postpone the vesting. This construction is in line with those rules which favor the vesting of estates, and which avoid the disinheritance of remaindermen who may die before the termination of the precedent estate.

I think that William Cornell and Sarah Harrington at the testator's death were vested with contingent estates in remainder, which were descendible, devisable, and alienable under the Revised Statutes. 1 Rev. St. p. 723, §§ 11, 13; Id. p. 725, § 35; Id. p. 726, § 41; Id. p. 735, § 113; Moore v. Littel, 41 ́N. Y. 66; Ham v. Van Orden, 84 N. Y. 257; Hennessy v. Patterson, 85 N. Y. 91.

Other questions are satisfactorily discussed in the opinion of Mr. Justice Chester at the trial term (65 N. Y. Supp. 601), and I advise the affirmance of the judgment, with costs to all parties who have appeared by counsel to be paid out of the estate.

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DAVIS et al. v. NIAGARA FALLS TOWER CO.

(Court of Appeals of New York. May 29, 1902.)

PRIVATE NUISANCE-INJUNCTION. Defendant erected a high tower on a building in the vicinity of a large cataract. During the winter ice from the spray of the cataract accumulated on the framework, and fell on an adjacent building. whenever a thaw happened, in such large quantities as to endanger human life and injure the building. The tower was several feet within the limits of the lot on which it was situated, and was a substantial structure, and suited for the purposes for which it was erected. Held to constitute a private nuisance, entitling the owner of the adjacent building to a perpetual injunction restraining the maintenance of the tower so that ice could form thereon and fall onto the adjacent property.

O'Brien, J., dissenting.

Appeal from supreme court, appellate division, Fourth department.

Action by Charles Davis and others against the Niagara Falls Tower Company. From a judgment of the appellate division (67 N. Y. Supp. 1131) affirming a judgment for plaintiffs, defendant appeals. Affirmed. J. H. Metcalf, for appellant. Morris Cohn, Jr., for respondents.

CULLEN, J. The plaintiffs and the defendant are owners of adjacent properties on a street called the "Riverway," in the city of Niagara Falls. The plaintiffs have constructed on their land a building used for a museum, with large skylights in the roof. The defendant has built on its land a hotel and a tower or observatory. This tower is about 200 feet high, and is constructed of an open iron framework with braces and cross girders. At the top of the tower there is an observatory. Visitors are carried to and from the observatory by elevators. The whole structure is several feet within the limits of the defendant's land. As found by the trial court, during the winter ice is formed on the structure from sleet, melting snow, and spray from the Falls of Niagara, which accumulates, and when a thaw occurs large quantities of ice fall from the tower upon the roof of the plaintiffs' building, in size and with velocity sufficient to endanger human life, by means of which plaintiffs' building and property have been injured. The action was brought to recover damages, and for an injunction to restrain the defendant from so maintaining the tower as to suffer ice to fall therefrom on the plaintiffs' property. The trial court also found that the injury to plaintiffs' building and the accumulation and fall of ice from the tower on the plaintiffs' property recurred each winter during periods of thaw. It further found that the tower was a safe, substantial, and suitable structure for the purpose for which it was used. On these facts it decided, as a matter of law, that the maintenance and construction of the tower was a private nuisance, and that the plaintiffs were entitled to a perpetual injunction restraining the defendant from so maintaining the structure that ice would form thereon and fal! on the building and premises of the plaintiffs. A reference was ordered to ascertain the plaintiffs' damages. On the report of the referee final judgment was entered for an injunction and damages. This judgment was affirmed by the appellate division (67 N. Y. Supp. 1131) and an appeal has been taken to this court.

The affirmance below having been unanimous, the question presented here is whether the facts found entitle the plaintiffs to judgment. The court has not found any negligence in the character or plan of the structure maintained by the defendant. The element of negligence being thus eliminated, the plaintiffs' right to recover depends on the duty that the defendant owed to adjacent owners with reference to ice that might

accumulate on its building. The law with reference to rainfall seems well settled. So long as the owner of land leaves it in its natural condition, he is not required to adopt any measures to prevent the flowage of surface waters from his premises on the adjoining land (Vanderwiele v. Taylor, 65 N. Y. 341), but when he puts a structure on the land a contrary rule prevails. Then he must take care of the water that falls on his premises, except in the case of extraordinary storms. In Washb. Easem. p. 390, it is said of the right to eaves' drip: "It grows out of the fact that for one to construct the roof of his house in such manner as to discharge the water falling thereon in rain upon the land of an adjacent proprietor is a violation of the right of such proprietor, if done without his consent, and this consent must be evidenced by express grant or prescription." In Bellows v. Sackett, 15 Barb. 96, it was held that the defendant could not maintain a building upon his lot, the water falling from the roof of which injured the plaintiff's building, whether the water actually fell in the first instance on the defendant's land or not. In Walsh v. Mead, 8 Hun, 387, it was held that, where the roof of a building was so constructed as to render the snow falling upon it liable to be precipitated on the sidewalk without an adequate guard at the edge to retain it, it is in law a nuisance. The doctrine of Bellows v. Sackett was followed in Jutte v. Hughes, 67 N. Y. 267. There this court said: "The proof showed that the defendant had paved the yard, thus causing the water to accumulate, and render the yard less penetrable to the same, and conducted from the roofs of his houses to the privy in leaders and drains an unusual quantity of water beyond the capacity of the drains to carry away. This he had no right to do, and he was bound to take care of such water as fell and accumulated upon his own premises, and to prevent its causing any injury to the property of the plaintiff. Bellows v. Sackett, 15 Barb. 96; Foot v. Bronson, 4 Lans. 51. It matters not that the defendant did all that he reasonably could do to take the water off, if he suffered it improperly to increase on his own premises, and so as to flow on the plaintiff's premises." The decisions in other states appear to be uniformly to the same effect. In Shipley v. Fifty Associates, 106 Mass. 194, 8 Am. Rep. 318, it was held that maintaining a building with a roof constructed so that snow and ice collecting on it from natural causes will probably fall onto an adjoining highway renders the owner liable to a person injured. It was there said: "It is not at all a question of reasonable care and diligence in the management of his roof, and it would be of no avail to the party to show that the building was of the usual construction, and that the inconvenience complained of was one which, with such a roof as his, nothing could prevent or guard

against. He has no right so to construct his building that it will inevitably, at certain seasons of the year, and with more or less frequency, subject his neighbor to that kind of inconvenience; and no other proof of negligence on his part is needed. He must, at his peril, keep the ice or the snow that collects upon his roof within his own limits, and is responsible for all damages if the shape of his roof is such as to throw them upon his neighbor's land, in the same manner as he would be if he threw them there himself." In Gould v. McKenna, 86 Pa. 297, 27 Am. Rep. 705, the plaintiff's building was higher than the defendant's rear building, on the roof of which, on account of the height of adjacent buildings, water accumulated, and soaked through the plaintiff's wall. The defendant was held liable, and it was there said: "Having pitched his roof so as to carry the rainfall against and into the wall, it was his duty to raise the apron or flushing so high as effectually to protect the plaintiff's store from being flooded by the water thus brought down. He had no right to carry the rainfall on his premises into and upon the premises of the plaintiff. This was a wrongful act, which he could not justify by averring the openness of the wall of the plaintiff." In Tanner v. Volentine, 75 Ill. 624, it is said: "It is well settled that, if the owner of a building causes the water to flow from the roof upon the lot or ground of another, such other may recover of him for the damages sustained, unless prevented by some agreement." Hazeltine v. Edgmand, 35 Kan. 202, 10 Pac. 544, 57 Am. Rep. 157, is to the same effect. It is to be observed that the structure of the tower is not on the division line between the land of the plaintiffs and that of the defendant, and therefore the ice that is formed on the posts, beams, and girders is accumulated wholly on the defendant's land. If the shape of the tower was such that rain falling on the defendant's premises would run down the posts and then be cast on plaintiffs' building, plainly, under the authorities cited, the defendant would be liable. It can make no difference on the question of the defendant's liability that the water, instead of being precipitated on the plaintiffs' land, is allowed to congeal and freeze and fall in the form of ice. Nor is it material on the question of liability whether the ice proceeds from the fall of rain or from the spray and mist of Niagara Falls. The latter is just as much a natural phenomenon as the former. In climates where at certain seasons of the year the rain falls in the form of snow, the owner of land must build his structures with guards that would be unnecessary in places where there is no fall of snow. Likewise, where a structure is built so near Niagara Falls as to be subject to the precipitation thereon of spray and water from the falls, the owner is bound to take the necessary precautions against casting the water which

falls on his own premises or the ice that is formed therefrom upon those of his neighbor.

I think the judgment below was right, and that it should be affirmed, with costs.

PARKER, C. J., and GRAY, BARTLETT, and WERNER, JJ., concur. O'BRIEN, J., dissents. HAIGHT, J., not voting.

Judgment affirmed.

(171 N. Y. 292)

BECKRICH et al. v. CITY OF NORTH TONAWANDA.

(Court of Appeals of New York. May 20, 1902.) MUNICIPAL CORPORATIONS-DEED TO REALTY -ACCEPTANCE.

A municipality contracted for the purchase of real estate by accepting, through a resolution of the common council, which the mayor approved, a written proposition for its sale. A deed was duly executed and delivered to the city clerk, and given by him to the city treasurer, and a draft drawn for the payment of the price. Before this was actually delivered to the vendor, a change was made in the assessment maps, and the deed recorded in the county clerk's office. Held to be a valid delivery and acceptance thereof by the city, and it was unnecessary to such acceptance and the perfecting of title to the property that the common council should pass a resolution to that effect, so that a veto of such resolution by the mayor did not defeat the vendor's right to recover the contract price.

Appeal from supreme court, appellate division, Fourth department.

Action by Rose Beckrich and others, executors of Nicholas Beckrich, deceased, against the city of North Tonawanda. From a judgment of the appellate division (67 N. Y. Supp. 992) affirming a judgment for defendant, plaintiffs appeal. Reversed.

Lewis T. Payne, for appellants. James P. Lindsay, for respondent.

O'BRIEN, J. This is an action at law to recover the sum of $3,000 and interest, the purchase price of certain real estate which the plaintiffs' testator sold and conveyed to the defendant for a public market. A valid executory contract of sale was entered into between the plaintiffs' testator and the defendant on the 19th of October, 1897. About a year afterwards, and on the 9th of October, 1898, the vendor died, leaving a last will and testament, in which the plaintiffs were appointed his executrix and executor. It is claimed on the part of the plaintiffs that prior to the death of the testator the contract of sale and purchase was consummated by the delivery of a deed to the defendant, which was recorded in the proper clerk's office, and that the vendor thereupon became entitled to the payment of the purchase price by the defendant. On the trial of the action the plaintiffs' counsel moved for the direction of a verdict, which the court refused, and he then asked to have the case

submitted to the jury on a question which will be hereafter referred to. This request was denied under exception, and the trial court thereupon directed a verdict for the defendant, to which direction the plaintiffs' counsel excepted. It is therefore very clear that, if the plaintiffs had made out a case which entitled them to recover as matter of. law, or if there was any conflict in the evidence in regard to the question referred to, which the trial court refused to submit to the jury, this judgment cannot be upheld. There was an element in the case that the learned court below held to involve a question of fact, and that was whether the defendant had the power to contract the debt in question by reason of the limitations upon the power of cities in that respect prescribed by the constitution. But the court held substantially that, in their view of the case, that question was immaterial, but, if it was otherwise, the case should have been submitted to the jury. This view in regard to that question was doubtless correct, and the constitutional limitations upon the power of the defendant to create the debt in question is therefore not involved in this appeal, since the sole ground upon which the verdict for the defendant was directed was that the plaintiffs failed to prove that the defendant ever accepted the conveyance which their testator made to the city. That is the only question presented by this appeal, and that is the only question that need now be considered.

The learned judge who delivered the opinion of the court below was entirely correct in his statement that the material and substantial facts involved in the controversy were undisputed, and a very full and fair statement of these facts is to be found in the opinion. The defendant was incorporated as a city by chapter 361 of the Laws of 1897. The charter confers upon the common council the power to purchase market grounds and to establish a regular public market. But this power was subject to the mayor's veto, as expressed in section 5 of title 6, whereby power was conferred upon the mayor to veto any resolution of the common council, and this could be overruled only by a two-thirds vote of the members. On the 5th of October, 1897, the common council, by resolution, authorized the clerk to advertise for proposals for a market site, and pursuant to such resolution a notice was published for two weeks. On the 19th of the same month, at a meeting of the common council, plaintiffs' testator presented a written proposition to sell the property in question for the sum of $3,000, payable on the execution and delivery of a deed, and thereupon the common council, by resolution, accepted this written proposition. All these resolutions were duly approved by the mayor. On the 3d of November, 1897, the common council passed another. resolution directing that an order be drawn on the

treasurer for the purchase price of the property in favor of the plaintiffs' testator, and placed in the hands of the mayor until the property be conveyed to the city by warranty deed, with abstract of title, to be approved by the proper officer. On the next day this order was drawn, signed by the clerk, but it was never signed or indorsed by the mayor, and was never delivered to the plaintiffs' testator. A few days thereafter-on November 9, 1897-the common council, at a regular meeting, passed a resolution directing the city engineer to establish the grade of the streets about the proposed market site, and to make plans for necessary sewers and for grading the market site up to the proper street level. Thereupon the city engineer surveyed the property, set monuments on street corners, and made plans for a sewer, and profile of proposed grades about the site. No street was ever actually opened, or grading done, or work performed upon or with reference to, the proposed site. Subsequently, and in the month of March, 1898, the plaintiffs' testator caused to be presented to the common council a written notice stating that the deed had been delivered, and that the title had been approved by the city attorney, and requested that the order for the purchase money in the hands of the mayor be delivered to him. It seems that no action was taken by the common council at that time with reference to the communication. Subsequently, however, on the 30th of March, 1898, at a meeting of the council, a resolution was passed that the conveyance be accepted, and that the city clerk cause the same to be recorded. It seems that about this time the personnel of the city government changed. The city clerk seems to have gone out of office about April 5, 1898, and he was requested or urged to put the conveyance on record before he left office. The mayor, however, had not acted on the resolution above referred to, and his time to do so had not expired, but the clerk, without calling the mayor's attention to the resolution, took the deed to the treasurer, had it registered, and delivered it to the county clerk for record. The conveyance having passed the treasurer's office, the change was made on the assessors' map in accordance therewith by the city engineer, which change assumed that the land had become the property of the city. On the 8th of April, 1898, the mayor vetoed the resolution of the common council accepting the deed, and this veto has never been overruled, and, for all the purposes of this case, it will be assumed that this resolution was inoperative. At the same meeting of the common council at which the mayor's veto was presented the common council audited the bill of the county clerk for recording the deed, and ordered it paid. This conveyance, which was acknowledged November 2, 1897, is now upon record in the proper office. After the

death of the plaintiffs' testator, the plaintiffs, by their attorney, presented a communication to the common council at a meeting held October 18, 1899, in which it was stated that a conveyance was delivered to the city about April 1, 1898, and a demand was made for the purchase price. The assessors, by reason of the change in their map, did not assess the property during the years 1898 and 1899. It was treated in that respect as city property. No complaint or objection is now or ever has been made as to the form of the conveyance or the title to the property. This action was commenced November 1, 1899.

There is no dispute or controversy whatever in regard to these facts, and the question here is with regard to their legal significance. It will be observed that there was a valid executory contract entered into between the parties for the sale and purchase of this land by the written proposition presented to the city by the plaintiffs' testator, and the acceptance thereof by the governing body thereof, and the approval of the mayor, the chief executive officer. There is no room, we think, for dispute or disagréement in regard to that proposition. But assuming, as we must, that the last resolution of the common council accepting the deed, which was then upon record, became inoperative by the action of the mayor, the question arises whether this defeats the plaintiffs' right of recovery. In other words, may the vendee of real estate under a valid executory contract, where the deed is not only tendered, but actually delivered, defeat an action by the vendor for the recovery of the purchase price, by refusing to accept the deed? We think that the resolution of the common council accepting the deed was not necessary to a valid delivery and acceptance. The legislative body had already determined to purchase the property, and had passed the necessary resolution for that purpose. The contract of purchase and sale was complete, and bound the city and the vendor in the same way as if it was a contract between private parties. The vendor could have performed his contract by the delivery of a valid deed to the mayor, to the financial officer, or possibly to any executive officer of the city. The common council or any of the executive officers of the defendant could have rejected the deed by reason of any material defect in its form or in the title of the land conveyed. But the right of the vendor to have his contract performed was not subject to any change of views in regard to the property on the part of the common council or the city officers. Of course, in an action for specific performance, there would be no dispute in regard to this proposition. But this is not an action for specific performance. It is an action at law to recover damages or the purchase price of the land sold and conveyed, and in such a case the rule seems to be that, when a deed has been duly ten

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