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brought can only be material and necessary in order to enable the party in whose behalf such testimony is sought to be taken to frame his complaint. Until after answer interposed it would be impossible to determine what the issues in the action were which were to be tried, or that there would ever be any issues. Diefendorf v. Fenn, 125 App. Div. 651, 110 N. Y. Supp. 68. If it appears from the moving papers that the person who expects to begin the action is fully advised as to all the facts necessary to enable the framing of a complaint, then such examination should not be allowed. All of the facts upon which the intended action is to be based are stated by the appellant in her affidavit, not upon information and belief, but as being upon her actual present knowledge. Whether the facts so stated, if framed as a complaint, would be sufficient to constitute a cause of action, we need not now determine. It clearly appears that the appellant seeks, not additional facts of which she is now ignorant, but evidence in support of facts which she claims are sufficient to enable her to maintain her suit. The evidence of the particular acts which each of the defendants did in connection with the wrong alleged to have been done to her would be improperly included in her complaint.

It is claimed that upon an application based upon a precisely similar affidavit an order had been obtained for the examination of one Francis P. Bent, another of those against whom it was intended to bring such action, and that an order denying a motion to vacate such order of examination had been affirmed by this court. In the Matter of La Grave (Francis P. Bent, Appellant), 124 App. Div. 912, 108 N. Y. Supp. 323. An examination of the appeal record in the Law Library seems to sustain that contention. That case, however, seems to have been affirmed without opinion, and the point now presented seems not to have been considered. If an error was made in the decision of that case, it is better that we should now correct it, than seem to perpetuate a rule permitting the examination of a party against whom an action is to be brought by the person intending to bring the same for the purpose of framing a complaint, when the affidavit upon which such order is based, if reframed in the form of a pleading, would contain all that the plaintiff claims as the foundation of an action.

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

DRISCOLL et al. v. HEWLETT et al.

(Supreme Court, Appellate Division, Second Department.

1. CHARITIES (§ 15*)-GIFTS FOR CARE OF BURIAL LOTS.

In the absence of a statute authorizing it, a testamentary trust to apply the income to the care of testator's burial lot is void.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 39; Dec. Dig. § 15.*]

April 30, 1909.)

2. CHARITIES (§ 15*)-GIFTS For Care of BURIAL LOTS-"GIFT TO A CHARITABLE USE."

A testamentary gift to a trustee, to apply the income to the care of testator's burial lot, is not a "gift to a charitable use," within Laws 1893, p. 1748, c. 701, regulating gifts for charitable purposes.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 39; Dec. Dig. $15.*)

3. CHARITIES (§ 15*)—GIFTS For Care of Burial Lots.

Laws 1895, p. 481, c. 723, § 7, authorizing testamentary gifts to a religious corporation in trust to apply the income for the improvement of a cemetery lot, etc., re-enacts with modifications Laws 1884, p. 253, c. 198, § 2, and authorizes a testamentary trust to apply the income to the care of testator's burial lot, and a devise to a religious corporation in trust to apply the income to the care of testator's burial lot is not void as against perpetuities.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 39; Dec. Dig. § 15.*]

Hirschberg, P. J., and Rich, J., dissenting.

Appeal from Special Term, Nassau County.

Action by William J. Driscoll and others against Whitfield C. Hewlett, executor, etc., of Thomas Driscoll, deceased, and another. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

John Lyon, for appellant Hewlett.

Albert H. Seabury, for appellant Trinity Church.
John E. Walker, for respondents.

MILLER, J. This appeal involves the validity of the attempted devise and bequest of the testator's residuary estate to a religious corporation in trust to apply the income to the care of his burial lot. The learned trial justice held that the residuary clause was void for offending the statute against perpetuities.

In the absence of some statute authorizing such a trust, the attempt to create it was doubtless futile. The statute relating to gifts for public charitable purposes (Laws 1893, p. 1748, c. 701) has no application, as the care of the testator's burial lot is not a charitable use. However, there is a statute which in terms authorizes the creation of just such a trust as was attempted in this case. Laws 1895, p. 481, c. 723, § 7. That statute provides that a religious corporation may take and hold real property for the purposes of a cemetery and— “may take and hold any property granted, given, devised or bequeathed to it in trust to apply the same or the income or proceeds thereof, under the direction of the trustees of the corporation, for the improvement or embellishment of such cemetery or any lot therein, including the erection, repair, preservation or removal of tombs, monuments, gravestones, fences, railings or other erections, or the planting or cultivation of trees, shrubs, plants, or flowers in or around any such cemetery or cemetery lots."

In the absence of authority, it would seem too plain to admit of argument that that statute was intended to authorize the doing of precisely what the testator attempted to do in this case; but authority is *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

not wanting. First Presbyterian Church v. McKallor, 35 App. Div. 98, 54 N. Y. Supp. 740; Hartson v. Elden, 50 N. J. Eq. 523, 26 Atl. 561; Moore's Executor v. Moore, 50 N. J. Eq. 554, 25 Atl. 403; Iglehart v. Iglehart, 204 U. S. 478, 27 Sup. Ct. 329, 51 L. Ed. 575. And see Gates v. White, 139 Mass. 353, 1 N. E. 285; Green v. Hogan, 153 Mass. 462, 27 N. E. 413; Morse v. Natick, 176 Mass. 510, 57 N. E. 996. The statute in question was a re-enactment of section 2, c. 198, p. 253, of the Laws of 1884, with slight verbal changes; the principal change being the omission of the following words at the end of the paragraph or section in question:

"Or for improving the said premises in any other manner or form consistent with the design and purpose of this act, according to the terms of such grant, donation or bequest."

The words "according to the terms of such grant, donation or bequest" are found in the statutes construed in the Iglehart, Moore and Hartson Cases, supra, and the McKallor Case was decided under the act of 1884. The learned trial justice thought that the omission of those words indicated an intention on the part of the Legislature to change the law, and, while authorizing a trust for the purposes specified, to require that the trust should not continue beyond two lives in being.

We are unable to discern such a purpose. The words omitted appear to be surplusage; for, obviously, the trustees must take and hold "according to the terms of such grant, donation or bequest," if at all. The act of 1895 was a part of revision, and certainly a purpose to change the law could not be inferred from the omission of such words. If the Legislature intended, while authorizing such a trust, to make the statute against perpetuities applicable to it, it would not have left its purpose to be inferred from the omission of needless words, having no reference whatever to the point. Every man has the right, subject to the law, to dispose of his property as he pleases, and we must determine the validity of the attempted disposition in this case without. regard to what we may think of its propriety.

The judgment is reversed, and a new trial granted; costs to abide the event.

WOODWARD and JENKS, JJ., concur. HIRSCHBERG, P. J., and RICH, J., dissent.

ROBERTS et al. v. DOVE.

(Supreme Court, Special Term, Ontario County. February 20, 1909.) NUISANCE (§ 35*)-BRICK KILNS-INJUNCTION-RELIEF AWARDED.

Where defendant had built brickkilns at a large expense, and maintained them for several years, and was conducting a flourishing business, an adjoining owner, whose property was injured by smoke and gas from the kilns before the erection by defendant of barriers and the use of a different kind of coal, which practically remedied the trouble, was entitled to damages for injury already suffered, and to have defendant execute a bond conditioned on the payment of rent for the property injured during

the continuance of the business, or in default thereof to an injunction restraining defendant from unnecessarily emitting and depositing noxious gases, smoke, etc., on the property.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 93-94%; Dec. Dig. § 35.*]

Action by one Roberts and others against one Dove. Decree for plaintiffs.

William S. Moore, for plaintiffs.
Frank Rice, for defendant.

BENTON, J. This action is brought for an injunction restraining the defendant from injuring the premises and crops of the plaintiffs by the use of certain kilns from which noxious gases, fumes, and smoke were emitted over and upon plaintiffs' lands. The plaintiffs, except Day, who was a tenant, are the owners of lands contiguous to those of defendant, lying just outside of the boundary line of the city of Geneva. Defendant's lands were used in the manufacture of bricks, upon which he erected four brickkilns at an expense of something like from $6,000 to $10,000. Defendant's kilns could not be removed for less than $20,000. The business of the defendant is a flourishing and growing business. He offers to rent of plaintiffs the lands, the crops upon which have been injured by the fumes or gas of the kilns, and pay therefor the highest price per acre rental value testified to by any witness in the case, and also to allow the plaintiffs the use of the lands.

Public policy demands that reasonable encouragement be given, and harsh and arbitrary restrictions be not imposed upon, a business such as the defendant carries on. The rights of plaintiffs to the undisturbed posssession of their property, save as necessitated by the needs of modern trade and commerce, are also to be respected. Defendant must use his property so as not to interfere or necessarily to damage and injure that of his neighbor. The brickkilns have been in operation. during the years 1903, 1904, 1905, 1906, 1907, and 1908. The damages of which plaintiffs complain occurred during the years 1905 and 1906. There is evidence from which reasonable inference may be drawn that such damage was occasioned by the use of coal heavy in sulphurous gas and which is called "Pittsburg coal." There are other varieties of coal in which this sulphurous gas is not to the extent that it exists in the Pittsburg coal. Either from the use of such varieties, or because of barriers which the defendant has erected, the damage to plaintiffs' crops has been practically remedied. It is therefore apparent, with reasonable precaution and care, defendant's business may be prosecuted and plaintiffs' rights protected.

Substantial justice will be done in this case by awarding plaintiffs damages to the extent of $150, and that defendant execute a bond to plaintiffs, to be either accepted by them or approved by a justice of this court, conditioned that the defendant pay plaintiffs an annual rent of $7 per acre for five acres, amounting to $35 per year, during the continuance of the brickmaking business, or, in default thereof,

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

that plaintiffs have an injunction restraining the defendant from unnecessarily emitting and depositing noxious gases, fumes, smoke, and vapor over and upon the lands of plaintiffs, and that plaintiffs have their costs of this action.

Proper findings and a decree in accordance herewith may be submitted.

LALLY v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.)

1. APPEAL AND ERROR (§ 357*)-TIME TO APPEAL-NOTICE.

A plaintiff, failing to avail herself of the offer of the court to incorporate the findings of fact in the judgment roll, and acquiescing in the determination of the court that the judgment was properly directed, and moving to compel defendant to accept notice of appeal after the expiration of the statutory time, admits the existence of a valid judgment; and the fact that the judgment roll contains papers not proper is of no force on the motion to compel acceptance of the service.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 357.*]

2. APPEAL AND ERROR (§ 875*)—OBJECTIONS-WAIVER.

The right of a defeated party to object to the form of the decision of the court and the service thereof is involved in the motion to set aside the judgment, and is waived by neglect to appeal from the order refusing to set aside, the judgment.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 875.*]

Appeal from Special Term, Westchester County.

Action by Lavinia Lally against the New York Central & Hudson River Railroad Company. From an order denying a motion to compel defendant to accept a notice of appeal, plaintiff appeals. Affirmed. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Lavinia Lally, in pro. per.

George H. Walker, for respondent.

WOODWARD, J. If there is any proper ground for reversing this order, I am unable to discover it. There is no pretense that the plaintiff served her notice of appeal within the time prescribed by the statute. After the time had expired, plaintiff made a motion for the resettlement of the decision on which the judgment was based by including therein the findings made at the request of the plaintiff. There appears to have been no suggestion at that time that there was any defect in the judgment itself, or in any of the proceedings subsequent to its entry, and the court advised the plaintiff that an order would be made directing that the plaintiff's requests to find as they had been passed upon by the court should be incorporated into and made a part of the judgment roll; but it appears that no such order has ever been presented by the plaintiff.

After this the plaintiff moved to set aside the judgment on the ground that the decision did not in proper form direct a judgment in the defendant's favor. That motion was denied, and the plaintiff

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