1894, the great majority of the houses in Pelham Manor were ordinary suburban cottages and were supplied with water through a connection with the main of 5% or 34 of an inch inside diameter, and in some cases the house and stable were supplied each by a separate such connection. It may be that there were, by special favor or permission, a very few larger such connections. I think that it is reasonable to conclude that the contracting parties then understand and intended that the connections to supply private consumers would be substantially as they then were, at least as to size and consequent capacity to carry and deliver water; and that, while such contracting parties contemplated that the supply should be unlimited by meters, they did intend it should be limited by the usual size of connections then prevailing. It seems to me that any other construction would be quite unnatural and unreasonable. If such construction be not given to the contract, then the amount of water which any private consumer may take is absolutely unlimited. The plaintiff might as well have a 6-inch connection as one of 21⁄2 inches, and a very few such private consumers might exhaust the capacity of the defendant's mains.

Even as it is, the plaintiff's 212-inch pipe connection with his house is capable of furnishing, at the pressure maintained by the defendant, 20 times the amount of water that can be supplied through a 3/4-inch connection; and his stable connection of 114 inches is capable of supplying 31⁄2 times the amount of water which can be supplied through a 34-inch pipe. It is my conclusion therefore that the plaintiff is not entitled, under the original franchise contract, to have and use a connection with his house to exceed one of 3/4 of an inch inside diameter, or a connection with his stable to exceed the same size.

As to the interview between the plaintiff and defendant's representative, Madigan, I think that there was an honest misunderstanding between them, and that the rights of the parties here are not affected thereby. Moreover, I am satisfied that in entering into the stipulation of September, 1904, with reference to the Pond action, defendant did not understand the nature of the connections with the plaintiff's premises; or that there was an honest misunderstanding, as above stated, as to the terms upon which those connections were permitted. Hence it does not seem that such stipulation should be held effective upon the defendant further than to hold it bound, during the pendency of such action, not to dispute that the plaintiff is entitled to the benefit of the provisions of the original franchise contract of October, 1894, as to terms to private consumers. As I have decided upon the merits that the defendant is so bound, that stipulation is immaterial here; the plaintiff being accorded the full benefit of such provisions as the court construes them.

A decision may be drawn and submitted in accordance with the above conclusions. No costs will be allowed to either party, because each claimed more from the other than such party is found entitled to have.

In re PERKINS' ESTATE.

(Supreme Court, Appellate Division, First Department. April 8, 1909.) 1. EXECUTORS AND ADMINISTRATORS (§ 513*)-RES JUDICATA-SETTLEMENT OF ACCOUNTS OF EXECUTRIX.

In judicially settling accounts of an executrix, the amounts received from copyrights during the accounting were credited to income as payable to a life beneficiary, and on such accounting, all parties being duly cited, a legatee filed objections to such classification claiming that the earnings were capital both in law and according to the will. The objections were overruled, and an appeal was taken to the General Term, which specifically brought up the surrogate's ruling thereon. The General Term affirmed his decree, saying that it was well settled that on an accounting the surrogate had jurisdiction to construe the will where necessary to determine questions arising on the accounting, and that, with all parties in interest present, the surrogate might consider its provisions and determine their meaning and validity whenever necessary to make his decree as to distribution. This decision was affirmed by the Court of Appeals on such opinion. Held, that the decision was res judicata as to whether amounts received from the copyrights were income or capital in a subsequent accounting between the same parties.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2282-2291; Dec. Dig. § 513.*]

2. LIFE ESTATES (§ 15*)-INCOME OF PROPERTY-LOSS BY PAYMENT OF PREMIUMS ON SECURITY.

In the absence of a direction in the will to the contrary, where investments were made by the trustee of a life estate, the principal must be maintained intact from loss by payment of premiums on securities having only a definite time to run, and hence it was error in such a case to decree that amounts credited on the principal to reduce premiums on bonds bought by the trustee above par should be regarded as income and paid to the executors of the life tenant.

[Ed. Note. For other cases, see Life Estates, Cent. Dig. §§ 34, 35; Dec. Dig. & 15.*]

Appeal from Surrogate's Court, New York County.

In the matter of the judicial settlement of the account of the Guaranty Trust Company, as substituted trustee under the will of John Perkins, deceased. From the decree judicially settling the account, and directing payment to the executors of Caroline E. Perkins, deceased, of certain items held to be income, George W. Angell, a legatee, appeals. Modified.

Argued before PATTERSON, P. J., and LAUGHLIN, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

George C. Lay, for appellant.

Cravath, Henderson & De Gersdorff (Joseph P. Cotton, Jr., and Kenneth B. Halstead, on the brief), for respondents.

CLARKE, J. The controversy upon this appeal is between the residuary legatee and the executors of the life beneficiary of the trust created by the will as to whether certain sums were properly credited to income or principal. The first item is the sum of $2,006.50, amount of royalties on certain copyrights owned by the decedent. On October 4, 1893, a decree was duly made and entered in the Surrogate's

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Court, judicially settling the account of Caroline E. Perkins, who was then the sole surviving executrix of the estate. Upon that accounting the amounts received from the said copyrights during the accounting period were credited to income as payable to the life beneficiary. Upon that accounting all parties were duly cited, and the appellant at bar and another duly filed objections to classing said earnings as income, claiming said earnings were capital, both in law and according to the last will and testament of the testator. The learned surrogate overruled said objections. An appeal was taken to the General Term (75 Hun, 129, 26 N. Y. Supp. 958), which appeal specifically brought up the ruling of the surrogate upon said objections. The learned General Term affirmed the decree of the surrogate. The determination of the questions involved necessarily required a construction of the will, and the court said:

"It has been well settled by numerous adjudications that upon an accounting the surrogate has jurisdiction to construe the will, where the construction is necessary to determine questions arising upon the accounting, and that with all the parties in interest present the surrogate may construe the provisions of a will and determine the meaning and validity of any of them, whenever such determination is necessary in order to make his decree as to distribution."

This decision was affirmed by the Court of Appeals, 145 N. Y. 599, 40 N. E. 165, on the opinion of the General Term.

The objection to this item, by the legatee, is the same objection that he made on the prior accounting upon the same ground, and involves the construction of the same clause of the will. The decision so made is not open for review. The very point involved has been litigated and adjudicated between the same parties and is res adjudicata. Matter of McGoughran, 124 App. Div. 312, 108 N. Y. Supp. 934, appeal dismissed 192 N. Y. 565, 85 N. E. 1112; Matter of Goldsticker, 192 N. Y. 35, 84 N. E. 581. The order appealed from determining that this sum was income received from the principal of the estate, and in consequence the executors of the life tenant were entitled thereto, is right.

The other items are sums of $571.24 and $12.76. These were amounts credited to principal to reduce premiums on certain bonds bought by the trustee above par. The decree directed that the said amounts so credited to principal be regarded as income and be paid to the executors of the late life tenant, upon the ground that it was the intention of the testator to secure to his widow the income of the trust created for her benefit, without making any deduction therefrom to pay the premium on securities purchased for investment. This I think was error. In Matter of Stevens, 187 N. Y. 471, 80 N. E. 358, 12 L. R. A. (N. S.) 814, the Court of Appeals, in considering all the prior cases, laid down the rule that in the absence of a clear direction in the will to the contrary, where investments are made by the trustee, the principal must be maintained intact from loss by payment of premium on securities having only a definite time to run, while, if the bonds are received from the estate of the testator, the whole interest should be

"If we are to lay down the doctrine that the question is to be determined on the peculiar facts and language of each particular case, no trustee will know how to safely act, and a question constantly arising in the administration of estates will be involved in great confusion and be the cause of great litigation, the latter often at an expense to the estate greater than the sum involved. Such a result would prove very unfortunate. The justification for the rule is very apparent."

This definite rule was made by the Court of Appeals upon an examination of all the cases, and by a divided court, with a strong dissent, showing that the matter had been advisedly passed upon as a guide to future trustees. As these bonds were bought by the trustee, we are bound by the decision cited.

The decree should therefore be modified by providing that the moneys paid out by the testamentary trustee to reduce premiums on securities purchased were properly taken from the income, and that the amount thereof should be paid to the residuary legatee, and, as so modified, affirmed, without costs in this court to either party. All con

cur.

DAVIS et al. v. MCCARTHY.

(Supreme Court, Appellate Division, First Department. April 8, 1909.) 1. EASEMENTS (§§ 13, 24*) — CONSTRUCTION "APPURTENANCES"

OPERATING as Grant.

- COVENANT

A deed of a city lot, containing a restrictive covenant as to the depth of building on an adjoining lot of the grantor "when sold or built upon by him," creates an easement of light and air in favor of the grantee's lot, which passes to subsequent grantees with the "appurtenances."

[Ed. Note. For other cases, see Easements, Cent. Dig. §§ 39, 64-69; Dec. Dig. §§ 13, 24.*]

2. COVENANTS (§ 69*)—CONSTRUCTION-COVENANTS RUNNING WITH THE LANDCOVENANTS CREATING EASEMENT.

A covenant in a deed restricting the depth of building on adjoining land of the grantor "when sold or built upon by him," being expressly intended as a beneficial one to the grantee's land, is not personal to the grantee, but is one running with the land and passing to subsequent grantees as an incident to the fee.

[Ed. Note. For other cases, see Covenants, Cent. Dig. § 67; Dec. Dig. § 69.*]

Appeal from Trial Term, New York County.

Action by John Davis and another against John McCarthy. From a judgment for plaintiffs, defendant appeals. Affirmed.

The following is the opinion of GREENBAUM, J., in the court below:

On May 1, 1858, one John J. Crane, who then was the owner of the premises known as No. 21 West Nineteenth street and No. 18 West Twentieth street, which, taken together, formed one parcel of land running from street to street, 25 feet in width on each street and 184 feet in depth, conveyed the Twentieth street lot and a building thereon erected, being 25 feet wide and 92 feet in depth to the middle of the block, to one Isaac Sherman by deed containing the following restriction: "Which said last-mentioned lot [referring to the Nineteenth street lot], now owned by the said John J. Crane, shall be restricted when sold or built upon by him as follows, namely, that any building For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

erected on said last-mentioned lot shall not exceed the depth of 65 feet, commencing on the line of Nineteenth street, leaving the balance of said lot 27 feet in depth as an open yard in the rear of said lot." Through various mesne conveyances the title to No. 18 West Twentieth street became vested in the plaintiffs and the title to No. 21 West Nineteenth street in the defendant. The plaintiffs having also acquired the title to the premises known as Nos. 20 and 22 West Twentieth street and to No. 23 West Nineteenth street, which is directly in the rear of No. 20 West Twentieth street, erected an 11story fireproof store and loft building which covered 75 feet on Twentieth street to a depth of about 80 feet, excepting that the ground floor was extended to a further depth of 8 feet with a skylight, and also excepting that the middle 25 feet of the building extended through to Nineteenth street. The upper stories in the rear of the part of plaintiffs' building directly overlooking defendant's premises have three windows on each of the stories above the ground floor, leaving a space of 12 feet on plaintiffs' premises, which, with the additional 27 feet in the rear of defendant's premises, would furnish a total air and light space of 39 feet. The defendant has threatened to erect upon his Nineteenth street lot an 11-story building to the depth of 85 feet, so that instead of the open space of 27 feet in the rear of his lot, to which plaintiffs claim an easement of light and air, there would be but 7 feet. To perpetually restrain the defendant from consummating his threatened erection the plaintiffs bring this suit.

Defendant contends that his land is not restricted to a building 65 feet in depth, and that, even if such a restriction had in fact been originally imposed, the change since 1858 in the character of buildings in the block would defeat the right to equitable relief. It is also argued in behalf of the defendant that the covenant of Crane to Sherman to restrict was purely personal in nature, and that Sherman's grantees had no enforceable claim or right thereunder. An examination of the respective chains of title to the plaintiffs and defendant to their holdings reveals that on August 1, 1858, Crane conveyed his Nineteenth street property to one Wickham Hoffman by deed, which in its habendum clause contained the following restriction: "Subject also to the restriction that any building erected or to be erected on the lot hereby conveyed shall not exceed the depth of 65 feet, commencing from the line of Nineteenth street, leaving the balance of said lot twenty-seven feet in depth as an open yard, and the said Wickham Hoffman hereby accepts this conveyance as aforesaid, and hereby covenants and agrees with the said John J. Crane, his heirs and assigns, at all times, faithfully to keep and observe the covenant and restriction aforesaid." Defendant's title is deducible through a series of deeds, some of which refer to the restriction and some of which omit any reference thereto. On July 30, 1906, the then owner of the lot, one Sarah Marion May, conveyed it to one Randolph Guggenheimer by deed subject to the restriction in question, and said Guggenheimer conveyed it to defendant on May 1, 1907, also subject to said restriction. The defendant thus took title with actual notice of the existence of the restriction. The several deeds which constitute the chain of title to plaintiffs make no specific mention of the restriction of the Nineteenth street lot, and no restrictive agreement or covenant as to the depth of building on the Twentieth street lot appears ever to have been made.

It thus appears that there was no mutuality of restrictive covenants as to depth of building in favor of each lot as against the other, but that the Nineteenth street lot alone, upon the severance of title in the common owner of the Nineteenth street and Twentieth street lots, became a servient estate with an easement in favor of the Twentieth street lot. There evidently was no mutuality because none was intended, and it may be assumed that the Twentieth street lot became the dominant estate, because the purchaser apparently paid a sufficient valuable consideration to the grantor to acquire the easement in the Nineteenth street lot. The easement created in favor of plaintiffs' lot seems to me was in effect a grant and passes with the "appurtenances." Valentine v. Schreiber, 3 App. Div. 235, 38 N. Y. Supp. 417; Hills v. Miller, 3 Paige, 254, 24 Am. Dec. 218. The covenant was expressly intended as a beneficial one to plaintiffs' land, and it may therefore be