well as towards individuals injured by their misfeasance, has been repeatedly declared. People v. Railroad Co., 24 N. Y. 261, 267, 269; Railroad Com'rs v. Railroad Co., 63 Me. 269; Talcott v. Pine Grove, 1 Flip. 145.

DANFORTH, J. Upon motion, on notice by the attorney general, for a mandamus requiring the defendant to construct and maintain, on the line of its road at the village of Hamburgh, a building of sufficient capacity to accommodate its passengers arriving at that place, or departing therefrom, or in waiting to depart, and such freight as is usually received at or shipped from that point, it appeared that the village of Hamburgh contains 1,200 inhabitants, and furnishes to the defendant, at a station established by it, a large freight and passenger business; that its depot building is entirely inadequate for these purposes, and the absence of a depot building and warehouse, sufficient for the accommodation of passengers and freight, has been, and continues to be, a matter of serious damage to large numbers of persons doing business at that station. These facts were conceded by the defendant. It also appeared that upon complaint made to the railroad commissioners, upon notice to the defendant, that body adjudged and recommended that the railroad company should construct a suitable building at that station, within a time named; but although informed of this determination, the defendant failed to comply, or do anything towards complying, with it, not for want of means or ability to do so, but because "its directors decided that the interests of the defendant required it to postpone, for the present, the erection or enlargement of the station-house or depot at the village of Hamburgh."

The supreme court, at special term, granted the motion, and, adopting the language of the railroad commissioners, ordered that the defendant "forthwith construct and maintain a suitable depot building of sufficient size and capacity to accommodate passengers arriving and departing on said road at the village of Hamburgh, as well as such passengers as may be in waiting on ordinary occasions to depart from the said village, on the line and by the way of said defendant's road, and of sufficient capacity to accommodate such quantities of freight as are usually received at said village, or that may be shipped therefrom, by the way of said New York, Lake Erie & Western Railroad."

Upon appeal to the general term, the order, after very careful consideration, was affirmed. The railroad company appeals.

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We agree with the court below that, at common law, the defendant, as a carrier, is under no obligation to provide warehouses for freight offered it, or depots for passengers waiting transportation. But that court has found such duty to be imposed by statute. To this we are unable to assent. The question arises upon the construction of the general railroad act, (Laws 1850, c. 140,) and its amendments. Under that act many companies have been formed to construct, maintain, and operate railroads in a manner so affecting persons and private property as to be utterly indefensible, except upon the theory formulated by the express words of the statute, that the roads, when constructed, should be "for public use in the conveyance of persons and property.' To promote that purpose, and for that purpose only, such company may take the property of a citizen without his consent, (sections 1, 18:) interfere with his travel and transportation by changing the lines of highways as may be desirable, with a view to the more easy ascent or descent of their own road, (section 24;) and even appropriate to its purposes the land of a town or county or the state, (section 25.) All these and other like powers are justified upon the ground that, when exercised, they are the acts of the government, performed indirectly through the medium of a corporate body. It follows, of course, that the legislature has control over it, and may compel the exercise of its functions, and direct the management of its business, and use of the road, as in their judgment will best subserve the public interest.

The court below does not find, nor does the respondent claim, that the legislature has, at any time, in express and specific terms, imposed upon a railroad company the duty of erecting or maintaining a depot or warehouse. It is sought to be implied. The company is empowered to erect and maintain all necessary and convenient buildings, stations, etc., "for the accommodation and use of their passengers, freight, and business," (Id. § 28, sub. 8;) and may acquire and hold real estate and other property for these purposes, "as may be necessary to accomplish the object of its incorporation." There are some other provisions in the same direction; none go further than those cited. But from these, and from the circumstance first referred to, that the company is exercising a public trust, and to that cause owes its existence and capacity to enjoy and profit by the franchise it has accepted, it is argued by the respondent that the right to construct a station, and its necessity, carries with it an obligation to do so in a proper manner.

In regard to the facts there is no dispute. A plainer case could hardly be presented of a deliberate and intentional disregard of the public interest and the accommodation of the public. The railroad commissioners have thought that it was essential for those purposes that a new and enlarged building for passengers and freight should be erected. That, it is true, was a question for them to decide. The statute (Laws 1882, c. 353) created a commission of "competent persons;" required from them an official constitutional oath; assigned to them an office for the transaction of business; provided a clerk to administer oaths to witnesses, and a marshal to summon them; gave full power of investigation and supervision of all railroads and their condition, with reference not only to the security, but accommodation, of the public; and declared that whenever, in their judgment, it shall appear, among other things, that any addition to or change of the stations or station-houses is necessary to promote the security, convenience, or accommodation of the public, they shall give notice to the corporation of the improvements and changes which they deem to be proper, and, if they are not made, they shall present the facts to the attorney general for his consideration and action, and also to the legislature. All these things have been done. The commissioners have heard and decided. They can do no more. After so much preliminary action by a body wisely organized to exercise useful and beneficial functions, it might well be thought unfortunate that some additional machinery had not been provided to carry into effect their decision. By creating, the statute recognizes the necessity for such a tribunal to adjust conflicting interests and controversies between the people and the corporation. It has clothed it with judicial powers to hear and determine, upon notice, questions arising between these parties, but it goes no further. Its proceedings and determinations, however characterized, amount to nothing more than an inquest for information. We find no law by which a court can carry into effect their decision. At this point the law fails, not only by its incompleteness and omission to furnish a remedy, but by its express provision that no request or advice of the board, "nor any investigation or report made by it," shall have the effect to impair the legal rights of any railroad corporation. The attorney general is given no new power. He may consider the result of the investigation made by the commissioners, and their decision, and so may the company; but we must look further for his right of action, and the corporation, disregarding the judgment of the commissioners, may continue the management of its business in its own way,-may determine in its own discretion to what extent, and in what manner, the exercise of a public trust requires it to subserve the "security, convenience, and accominodation of the public."

It may admit, as they do in this case, "the accommodations we furnish are not sufficient, they are not suitable; the omission to furnish different and better, entails injury upon the public; but we will give no better, nor make alterations, until we choose." The railroad commissioners are powerless, and,

as the law now stands, neither the attorney general of the state nor its courts can make their order effectual.

Cases are cited by the respondent in support of a different contention. Some of them turn upon statutory provisions, as those arising in Connecticut, where the law makes the order of the commissioners effectual, by authorizing its enforcement. State v. Railroad Co., 37 Conn. 153. Under our statute, the public gain nothing, in any legal sense, from the determination of the commissioners. It is not enforceable as a judgment. It is not even a command. If it affects the railroad company at all, it is as advice merely. It can compel them only through the interposition of the legislature, who may, indeed, make it effectual by action upon their report, or by some general law, if it be deemed expedient, giving force and efficacy to their determinations.

In the next place, as the duty sought to be imposed upon the defendant is not a specific duty, prescribed by statute either in terms or by reasonable construction, the court cannot, no matter how apparent the necessity, enforce its performance by mandamus. It cannot compel the erection of a station-house, nor the enlargement of one. The power of the company to provide such buildings is, under the statutes, a permissive one only. If the corporation choose to exercise it, it may. The statute does not exact it. It specifies certain things which the company shall not do. It specifies many things which it shall do; as, among others, "start and run its cars for the transportation of passengers and property, at regular times, to be fixed by public notice, and furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, being offered for transportation at the place of starting, and at the junctions of other railroads, and at usual stopping places established for receiving and discharging way passengers and freight for that train, and shall take, transport, and discharge such passengers and property at and from and to such places, on the due payment of fare or freight legally authorized therefor; and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises;" and it must do some other specified things for their accommodation.

The statute is peremptory as to many matters, but it nowhere says that for its intending passengers, or waiting freights, cover, by building of any kind, shall be provided. As to that the statute imports an authority only, not a command, to be availed of at the option of the company, in the discretion of its directors, who are empowered by statute to manage "its affairs," among which must be classed the expenditure of money for station buildings, or other structures, for the promotion of the convenience of the public, having regard also to their own interest. With the exercise of that discretion the legislature only can interfere. No doubt, as the respondent urges, the court may, by mandamus, also act in certain cases affecting corporate matters, but only where the duty concerned is specific and plainly imposed upon the corporation. It was so in People v. Dutchess & C. R. Co., 58 N. Y. 152, where the defendant was compelled to restore an invaded highway to its former usefulness,a statutory duty, (Laws 1850, § 28, sub. 5;) so in People v. Boston & A. R. Co., 70 N. Y. 569; to build a bridge as directed to by statute, (Laws 1874, c. 648;) in People v. Rochester & S. L. R. Co., 76 N. Y. 294, to erect fences, as directed by statute, (Laws 1850, supra.) All these cases cited by the learned attorney general, and there are many others, go upon the ground above stated. Such is not the case before us. The grievance complained of is an obvious one, but the burden of removing it can be imposed upon the defendant only by legislation. The legislature created it upon the theory that its functions should be exercised for the public benefit. It may add other regulations to those now binding it, but the court can interfere only to enforce a duty declared by law. The one presented in this case is not of that character. Nor can it, by any fair or reasonable construction, be implied. The whole subject

of the relation between the company and its passengers and freightors appears to have been in contemplation of the legislature. Certain acts towards them, as we have seen, are made imperative as duties, (section 36;) others, and among them the erection of stations and buildings, are made possible by permission, (section 28, sub. 8.) We cannot disregard this difference in language, and give, by implication, to one phrase, the same force and meaning which the legislature has, by express terms, conveyed in the other. We are constrained, therefore, to hold that the appeal must succeed.

The order appealed from should be reversed, and the motion denied, with costs.

(All concur; RAPALLO, J., in result.)

(104 N. Y. 74)

LE COULTEUX DE CAUMONT, Ex'x, etc., and others, v. MORGAN and others.1 (Court of Appeals of New York. January 18, 1887.)

1. WILL-ADVANCEMENT-INTENTION OF TESTATOR.

A gift to one entitled, as a child, to share in the estate of the donor, will not be held to be an advancement, when it expressly appears to have been the intention of the father that the gift should not be considered as such.

2. SAME-GIFT TO WIFE-ADVANCEMENT-1 REV. ST. N. Y., PAGE 754,

23.

A gift by a husband to his wife cannot be affected by any considerations growing out of the statute relating to advancements, (1 Rev. St. N. Y. p. 754, 23,) for such a set-off is allowed only against children.

3. TRIAL-OBJECTION TO TESTIMONY-WHEN TO BE MADE.

An objection to the admission of evidence, on the ground of incompetency, taken after the testimony has been given, is too late, and is premature as to any further evidence that may be given by the witness, if it is not repeated on the next question to the witness.

Appeal from judgment of the general term of the supreme court, First department, affirming the decision of the surrogate of the city and county of New York, overruling objections to the final account of the executrix. The opinion states the case.

John E. Parsons and Mr. Brommell, for appellants.

Gifts to children are presumed to be by way of advancement in cases of intestacy, and by way of ademption of benefits under a will, where the deceased has left a will; and the burden is upon the child to show that advances were not intended to be charged. Lawrence v. Lindsay, 68 N. Y. 108. See, also, Langdon v. Astor's Ex'rs, 16 N. Y. 9; Benjamin v. Dimmick, 4 Redf. 7; Sandford v. Sandford, 61 Barb. 293; Beebe v. Estabrook, 11 Hun, 523; affirmed, 79 N. Y. 246; Parks v. Parks, 19 Md. 323; Graves v. Spedden, 46 Md. 527; Ison v. Ison, 5 Rich. Eq. 15; Rickenbacker v. Zimmerman, 10 S. C. 110; Stevenson v. Masson, 43 Law J. (N. S.) 134; Leighton v. Leighton, L. R. 18 Eq. 458.

The substantial meaning of "advancement" is a payment or appropriation of money, or a settlement of real estate by a parent to a child in advance, on anticipation of the distributive share to which such child would be entitled after his death, and with a view to a portion or settlement in life (2 Bl. Comm. 140;) a giving, by anticipation, the whole or part of what it is supposed a child will be entitled to on the death of the parent making the advancement. Osgood v. Breed's Heirs, 17 Mass. 356; Chase v. Ewing. 51 Barb. 612. The gift must be absolute, and not conditional, (Crosby v. Covington, 24 Miss. 619;) and its absolute character, and the fact that everyting was done to make it a complete gift, cannot change its character, (Smith v. Smith, 21 Ala. 761.) Mr. Morgan made these gifts in part execution of a design to distribute his whole estate, which purpose he recalled by making his will. Presumption is

1Affirming 36 Hun, 643.

that the gifts were advancements. Merrill v. Rhodes, 37 Ala. 449, Autrey v. Autrey, Id. 614, (under a statute;) Johnson v. Hoyle, 3 Head. 56; Grattan v. Grattan, 18 Ill. 167; Dillman v. Cox, 23 Ind. 440; Hollister v. Attmore, 5 Jones, Eq. 373. Burden of proof is on recipients to show absolute character of gifts. Lawrence v. Lindsay, 68 N. Y. 112. The presumption may be rebutted, either by the character of the gifts, or proof of other facts and circumstances. Cecil v. Cecil, 20 Md. 153; Mitchell v. Mitchell, 8 Ala. 414. The presumption is of that which would work most favorably to an equality of distribution. It is not necessary to an advancement that the sum advanced should be accepted by the child as an advancement. A gift of property by a parent to a married son, living apart from the parent, is prima facie an advancement. Holliday v. Wingfield, 59 Ga. 206. Camp v. Camp is a case decided on the point of intention. The court said that, if the testator had died intestate, the advancements would have been deducted from the shares of the children receiving them; but he made a will leaving his property to his children "equally," and the court construed that as having been done for the very purpose of relieving them from the charge of the advancement. Camp v. Camp, 18 Hun, 218. Advancement is a gift by anticipation from a parent to a child of the whole or a part of what it is supposed such child will inherit on the death of the parent. Walker v. Quigg, 6 Watts, 87; Sampson v. Sampson, 4 Serg. & R. 333; Osgood v. Breed's Heirs, 17 Mass. 358; Jackson v. Matsdorf, 11 Johns. 91; Parish Adm'r v. Rhodes, Wright, 339. A mere gift is presumptively an advancement, but the contrary may be shown. Brown v. Burke, 22 Ga. 574; Bennett v. Williamson, 8 Ired. 121; Grattan v. Grattan, 18 Ill. 167; Lawrence v. Mitchell, 3 Jones, 190; Scott v. Scott, 1 Mass. 526; Hatch v. Straight, 3 Conn. 31; Clark v. Warner, 6 Conn. 355. No particular formality is requisite to indicate an advancement. 1 Rev. St. §§ 22, 23, c. 2, p. 754; 1 Madd. Ch. Pr. 507; 4 Kent, Comm. 418; Brown v. Brown, 16 Vt. 197. It is a free and irrevocable gift. Fellows v. Little, 46 N. H. 27, (under a statute.) Equality is equity among heirs, and the doctrine of advancement has for its object the furtherance of this end, and hence provides an adjustment among the heirs by way of set-off in the distribution of the estate. Sayles v. Baker, 5 R. I. 457; Law v. Smith, 2 R. I. 252; Weatherhead v. Field, 26 Vt. 665; Brown v. Brown, 16 Vt. 204; Miller's Appeal, 31 Pa. 337; Bulkeley v. Noble, 2 Pick. 340; Christy's Appeal, 1 Grant, Cas. 369. Declarations made by the parent at the time of making the gift are admissible to characterize it as an advancement. Watkins v. Young, 31 Gratt. 84. The circumstance that the father is very old, and the transfer into the son's name is made by a power of attorney, does not tend to rebut the ordinary presumption as to advancement. Hepworth v. Hepworth, L. R. 11 Eq. 10; Fowkes v. Pascoe, L. R. 10 Ch. 343.

Sullivan & Cromwell and Mr. Choate, for respondents.

The gifts to the children and grandchildren are not to be deemed advancements under the statute. The doctrine of advancement applies only in cases of total or partial intestacy. Thompson v. Carmichael, 3 Sandf. Ch. 120. As to the gift to Mrs. Morgan, the doctrine of advancement does not apply. Sections 76 and 78 of the statute of distributions refer merely to the payment by a parent to a child, and not to the widow. Under the statute the widow cannot come into hotchpot, and claim collation or advancement to the children. She only takes her share of what remains, without deducting the advancements, if any. 2 Kent, Comm. (13th Ed.) 422; Kircudbright v. Kircudbright, 8 Ves. 51. If it be urged that the language of the will shall be construed to provide for the distribution of the estate in accordance with the statute of distribution, including the section that applies to advancements, then we must determine from the acts and circumstances whether or not the gifts were intended as an advancement; for whether the gift is to be regarded as absolute or an advancement must depend upon the intent of the donor at

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