ciated by the wrongful entry of defendants upon the property, it is not the present market value of such property thus damaged that the defendants must pay. Actual market value at the time of the institution of the condemnation proceedings is usually the inquiry. But when the defendant has already entered upon the property, and has depreciated its value thereby, it is plain that the simple question of value at the time of the condemnation is not the proper rule. In such case the inquiry must be, what would be the fair market value of the whole property at the time of condemuation, without the railroad; and the difference between that sum and the present market value of the property left, with the railroad in existence, would constitute the measure of damages to which the owner would be entitled. This inaugurates no new rule of damages in condemnation proceedings in this State. As the entry was unlawful, it is, for the purpose of arriving at the value of the property, regarded as not made, and the inquiry is, what is the present value of such property without the presence of a structure which is there without right, and which cannot be continued without payment in full for all damage done? Its existence cannot be considered for the purpose of diminishing what would otherwise be the present market value of the property. I think the same rule would hold in the case put by the defendants, where the city or any other body having the power should seek to take the owner's property, even though such owner had himself purchased subsequent to the erection of the road. The city would have no right to take the property from its owner on a valuation based upon the permanent character of a trespass which the law regards as temporary. The inquiry in the case supposed would still be, what would be the fair market value of the property with the railroad away? That sum the city would have to pay; and when it acquired the title it would have the same right as any other owner to compel the defendants to desist from their trespass, or pay the amount of permanent damage they caused by its continuance. Under this rule the amount which the present owner may have paid for the property will be wholly immaterial. As the act of the defendants in trespassing upon or appropriating any portion of the property was unlawful, any depreciation in the value of the property caused by such illegal action cannot be regarded in fixing the value of the property to be taken, or the damage to that which will remain. The claim of the defendants that this depreciation in value was suffered by the original owner when he sold, and that it is a personal claim in his case against them, for which they are responsible, cannot, as it seems to me, be maintained. Such a doctrine would do away with the right of an owner of property to prevent a continuous trespass upon it by another. The defendants would say, that because the original owner transferred the property to his vendee, the defendants by reason thereof were thereby invested with the right to continue forever the original trespass, and the consideration for such license rested in their liability to pay (not necessarily in the payment to) the vendor the difference between the sum which he actually received for the conveyance of his land and that which he would have been able to secure, had it not been for the acts of the defendants. Whether such sum had been paid or not would be immaterial so far as concerned the present owner. That would be a matter between the original owner and the defendants. But the present owner, on account of the transfer of the land to him, would really have no right to prevent the trespass, no matter how much in truth the property was damaged, and although the defendants had no more title to the property trespassed upon than they ever had. They could have no title, because the original owner transferred it to his vendee, and after such transfer, of course, that owner could not again

transfer any portion of the property to any one else. The vendee took the title, and he certainly has not conveyed it to the defendants, but, on the contrary, still retains it absolutely. Thus, with no title, the defendants have, by this course of reasoning, been in substance invested with a right to perpetually appropriate property belonging to the plaintiff, because of a liability on their part, as they allege, to pay a former owner certain damages which he alleges he sustained by selling his property to the plaintiff at a reduced value caused by defendants' illegal act. This mere liability of the defendants to reimburse the vendor operates, by defendants' argument, as a bar to the rights of the vendee. If not paid by the defendants, the liability still remains, and of course the bar still continues; and thus the general right which follows the possession of property to protect it from a trespass is denied an owner because the defendants are, they say, liable to a former owner on a personal claim by him for a loss occasioned by a sale. Heretofore absolute ownership or legal possession of property has been regarded as sufficient to enable the owner to protect it from a trespass. It has been sufficient to permit him to maintain an action to restrain its continuance, even though he was fortunate enough to secure the property at one-half its value. The inquiry in such cases, where the owner sought to restrain the future trespass, has never been in regard to the price which the owner paid, or whether the former owner sold at a loss on account of the trespass. The inquiry has been whether the plaintiff was the owner or entitled to the possession, and whether the acts of the defendant were illegal. That is all that should now be required.

I have thus far referred to the case of the vendee for the purpose of inquiring what rights appertained to him as the present owner of the property. But the argument in favor of the vendor, who owned the property when the road was built, and who sold his land in a depreciated market caused by the wrongful acts of the defendants, is not to my mind very strong. In the first place, he had his right of action to recover for all damage caused by the trespass up to the time of the commencement of his action, and the subsequent conveyance of the land would not in any way affect that right. If he desired to restrain its further continuance, or to recover for the permanent damage caused, he could while owner commence and maintain his action in equity. In that action he would obtain full relief. If he chose to sell instead of using the remedies which the law gives him, that was a matter, legally speaking, of his own choice. The defendants did not compel or limit or restrain such sale. Nothing that they did could be said to amount to any compulsion by them. The law says their action cannot be regarded as a permanent trespass, for the very reason that it is unlawful, and the law will not presume that an unlawful act is to be forever continued. His choice to sell, rather than to avail himself of the remedies given him by the law, does not furnish a cause of action against the defendants to reimburse him for a loss, arising because of the presumption he has indulged in that the trespass would be continuous and unpaid for. He has chosen to regard the trespass in a light opposite to that in which the law regards it, and the loss he has suffered thereby is not one which the law can regard as caused by the defendants. If the original owner thus chooses to sell his property without enforcing those rights which he has only by virtue of such ownership, the purchaser at any rate takes his fee, and with it the rights of such an owner. The right to enjoin the continuance of the trespass has not escaped by the conveyance. It cannot rest with the vendor, for he has no longer any interest in the land. Unless it passed to the vendee, it has vanished: and yet no conveyance by any one having the right to convey has been made to the trespasser, and so far as

will be modified so as to permit it to do so. Second Division, Oct. 6, 1891. New York Cent. & H. R. R. Co. v. City of Rochester. Opinion by Follett, C. J. 1 N. Y. Supp. 456, modified.

STATUTE APPROPRIATION OF PUBLIC MONEYCONSTITUTIONAL LAW-TAKING PROPERTY FOR PRIVATE USE.—(1) Whether or not money appropriated by the Legislature was intended for a public or a private purpose must be determined from the statute itself, and from such considerations as the court can judicially notice, and it is not competent to take proof and determine the question as a matter of fact. (2) Laws of New York of 1888, chapter 325, appropriated $15,000 for dredging and excavating the channel of the Seneca river from its intersection with the Seneca canal to the old Bear race, and also for dredging and excavating the said race for a specified distance, so as to admit the passage of canal boats therein from the Seneca canal. Held, that as the purpose of the appropriation, to be gathered from the act itself, was public-the improvement of a navigable canal and river-extrinsic evidence was not admissible to show that the real purpose was private-the widening and deepening of the old Bear race for the betterment of the water-power used by abutting factories-and that therefore the ap propriation was not lawfully made, because the act was not passed by a two-thirds vote, as required by the Constitution of New York, article 1, section 9, in the case of an appropriation for private purposes. (3) Since the act of 1888 authorizes the enlargement of the old Bear race for only a portion of its length, not reaching the factories abutting thereon, and since there is no allegation in the bill praying for an injunc tion against the work that any further improvements are contemplated or threatened, the court cannot assume that the purpose of the act is other than expressed on its face-the enlargement of the channel of the river and the race, so as to render them navigable for canal boats. (4) The State having previously diverted the water of the Seneca river into the Seneca canal, and thereby deprived the owners of the old Bear race of the use of such water, the act of 1888, which provides for the restoration of a portion of such water to its original channel, and which thus repairs the injury previously done to the owners of such race, is not a private or local act, within the meaning of the Constitution of New York, article 1, section 9, which requires the assent of two-thirds of the members of each branch of the Legislature to a bill appropriating money for a private or local purpose. (5) The Seneca canal was originally constructed by a navigation company, and a manufacturing company was entitled to all the surplus waters from the canal for the use of its mills. Subsequently the State succeeded to the rights of the navigation company, and in 1857 it greatly enlarged the canal. Held, that the use of this increased body of water by the manufacturing company since 1857 could not impair the rights of the State, and that therefore the act of 1888, which provides for the improvement of the Seneca river, and the enlargement of the old Bear race (a private mill-race on the opposite side of the river from the canal), the effect of which improvement will be the diversion of water from the canal, to the detriment of the manufacturing company, and the alleged benefit of rival factories on the old Bear race, is not void as taking the property of the manufacturing company for the benefit of such rival factories, there being no claim that the proposed improvement will reduce the amount of water in the canal below that prior to 1857. (6) Whether or not the act of 1888, which provides for the dredging and excavating of the old Bear race, so as to render it navigable for canal boats, is void as virtually taking private property for a public use, without compensation, is a question which can be raised only by the owners of such race, and is no

ground for enjoining the prosecution of the work at the instance of a third person, who has no interest whatever in the race. Oct. 6, 1891. Waterloo Woolen Manuf'g Co. v. Shanahan. Opinion by O'Brien, J.

SUMMONS-SERVICE BY PUBLICATION-AFFIDAVIT OF NON-RESIDENCE.-Under the Code of Procedure, section 135, providing that the court or judge may grant an order of service of summons by publication, when it appears to his satisfaction by affidavit that defendant is a non-resident, and that he cannot, "after due diligence," be found within the State, the affidavit must expressly allege that due diligence has been used to find defendant in the State. In Kennedy v. Trust Co., 101 N. Y. 487, cited in the opinion of the learned General Term in this case, and which was an action to foreclose a mortgage upon real estate, the affidavit upon which the order of publication was made stated that the defendants "cannot, after due diligence, be found within this State," they being residents of other specified States; "that the summons herein was duly issued for said defendants, but cannot be personally served upon them by reason of such non-residence." The affidavit in the case cited states, in the language of the statute, that "the defendants cannot, after due diligence, be found within this State; * * * but cannot be served personally upon them, by reason of such non-residence." The affidavit in the case under consideration entirely omits the words, “after due diligence," or to state that any degree of diligence whatever had been used to find the defendant. If it were competent for a party to state that he has used diligence or due diligence, then the affidavit in the case cited might be held sufficient, especially in connection with the further statement that they "cannot be served personally upon them by reason of such non-residence." In Carleton v. Carleton, 85 N. Y. 313, this court held that an affidavit stating "that the defendant has not resided within the State of New York since March, 1877, and deponent is informed and believes that the defendant is now a resident of San Francisco, Cal.," was insufficient to confer jurisdiction. The affidavit in the latter case, like the affidavit in this case, entirely omits the averment of due or any diligence, and has the like averment of the non-residence of the defendant. The opinion in the two cases (101 N. Y. and 85 id., supra) was written by the same judge, and was concurred in by all the members of the court; and moreover the opinion in 101 N. Y. expressly reaffirms the opinion in 85 N. Y., and maintains there is a distinction between the affidavit in the two cases. But the same distinction exists between the case at bar and the case in 101 N. Y. that exists between the case in 85 N. Y. and 101 N. Y. The reasons and comments contained in the opinion in 85 N. Y. are applicable to the case at bar, and need not be here repeated. The case of Jerome v. Flagg (Sup. Ct.), 1 N. Y. Supp. 101, is in line with the case of Kennedy v. Trust Co., supra, and the affidavit was held sufficient upon the ground that the expression in the affidavit, "that said defendant cannot with due diligence be served personally within the State," must be regarded not solely as a conclusion of law, but as a statement of fact tending to show that due diligence had been used. To the same effect is the case of Seiler v. Wilson, 43 Hun, 629, and the distinction is made and followed between the Kennedy Case, supra, and Carleton Case, in 85 N. Y., supra, and Lockwood v. Brantly, 31 Hun, 155, and Bixby v. Smith, 3 id. 60, and Easterbrook v. Easterbrook, 64 Barb. 421. From an examination of this statute, and the decisions in relation to it, it is pretty evident that some degree of diligence must be exercised to find the party, and what is a due degree depends upon circumstances surrounding each case, and that the simple averments in the affidavit that the defendant is a non-resident, and cannot be found

one solely.

The legal title remains in the vendor. A deed is not essential to transfer the purchaser's interest in the contract, but it will pass by assignment, and we see no objection to the gift of such an interest by a husband to his wife. Upon the delivery of the contract, and a proper assignment thereof, the rights existing in the purchaser thereunder passed to her. Second Division, Oct. 6, 1891. Frauff v. Bendheim. Opinion by Brown, J. 6 N. Y. Supp. 264, affirmed.

WILL-CONVERSION OF REAL ESTATE-SUSPENSION OF ALIENATION.-(1) Under a will authorizing the executors to sell a part or the whole of the real estate at once, but not requiring them to make the sale until ten years after the death of the testator's widow, who was given a life estate therein, and directing that after the death of the widow and the sale of all the real estate, the estate shall be divided in certain shares, etc., the real estate is converted into personalty as at the date of testator's death. (2) Testator, by his will, which converted his real estate into personalty as on the date of his death, gave the use and income of his property to his wife and daughters A. and B., during the life of his wife, and appointed A. and B. executrices and trustees, with discretionary power to sell the real estate at any time during the life of the wife, or a period not exceeding ten years thereafter, and directed that after the death of the wife, and after the sale of all the real estate, the entire estate should be divided into four equal shares, two of which should belong to A. and B. absolutely, and the other two should be held in trust by them to pay the income thereof to testator's daughters, C. and D., respectively, for life, remainder to their issue, and further provided that the executrices, or the survivor of them, should personally have the income of the estate after the death of the wife, and until all the real estate was sold. Held, that the will created a trust for an indefinite period after the death of the wife, not exceeding ten years, which was within 4 Revised Statutes, page 2516, forbidding the suspension of the absolute ownership for a term of more than two lives in being at the death of testator, but that the provision for the benefit of the widow and A. and B., during the life of the widow, not being inseparably connected with the other provisions, might be sustained to give effect to testator's intention so far as the law will permit. Second Division, Oct. 6, 1891. Underwood v. Curtis. Opinion by Parker, J. 5 N. Y. Supp. 478, affirmed.

WILLS

CONSTRUCTION -POWER OF DEVISEE TO MORTGAGE-PRIORITIES.-(1) A will devised the residue of testator's estate to four persons, share and share alike. A subsequent clause empowered the executors to sell a portion or all of the land for the payment of debts and funeral expenses in case the personalty should prove insufficient for that purpose, and also authorized the executors to partition the land among the four devisees after the payment of all such debts and expenses. Held, that the land vested in the devisees, subject to the execution of the power by the executors, and that consequently a mortgage executed by one of the devisees, before partition, on his undivided one-fourth interest, was valid; and the purchaser at the foreclosure sale was entitled to receive such devi

see's share on partition by the executors, or if partition should be made by selling the lands and dividing the proceeds, the moneys would, for the purpose of partition, retain the character of real estate, and onefourth thereof would pass to the purchaser. (2) Before the testator's debts were all paid one of the executors, who was also one of the four residuary devisees, wrongfully applied some of the funds of the estate to his own use, with the connivance of a co-executor, who was subsequently compelled to repay them to the estate. Held, that such misapplication of the funds by the executor could not be treated as a partial par

tition of the estate to such executor, both because the payment of all of testator's debts was made by the will a condition precedent to the exercise of the power of partition, and also because such misapplication was not made in pursuance of an attempt to partition. (3) The equity of the co-executor to reimbursement out of the misappropriating executor's share of the estate for the sum which he was compelled to pay on account of the misappropriation is inferior to that of a subsequeut mortgagee of the misappropriating executor's share in the estate, who became such for value, in good faith, and without any knowledge of the coexecutor's equities. (4) Where the mortgagee, as part consideration for his mortgage, paid several judgments against the mortgaging executor, the fact that he took assignments of such mortgages to himself, instead of satisfying them of record, as he had agreed to do, is a matter of which only the mortgaging executor can complain, and does not render the mortgagee's equity in the land inferior to the co-executor. Second Division, Oct. 6, 1891. Drake v. Paige. Opinion by Parker, J. 5 N. Y. Supp. 466, affirmed.

WILLS-CONSTRUCTION -POWER OF EXECUTOR TO SELL LAND-PAYMENT OF DEBTS-ESTOPPEL.—(1) A will which made no disposition of the personal estate, and had no residuary clause, contained the following provision: "I authorize my executor to sell and convey" certain land “for the purpose of discharging all my debts." Held, that the direction did not indicate an intention that the personalty should be relieved from its primary liability for the payment of the debts, and therefore the executor could not sell it to the widow when they both knew that there was more than enough personalty to pay the debts. (2) A clause in a will stating that testator desired and authorized his executor to sell certain land, and that it was his desire that the land should be sold in a body for commercial purposes, creates no valid power in trust, under Revised Statutes, part 2, chapter 1, article 3, section 94, which provides that a power is in trust when any person other than the grantee is designated as entitled to the benefits to result from its execution. (3) Neither does it create a valid beneficial power, under Revised Statutes, part 2, chapter 1, article 3, section 79, providing that a power is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution, as the presumption is that the power was conferred on the executor in the interest of the estate, and not for the individual interest of the executor. (4) The fact that the Surrogate's Court, in settling the executor's accounts, treated the sums arising from his sales of real estate as personalty, and that the payment of such sums to the widow was confirmed, does not estop the heirs from seeking to recover the land from the widow, as there was nothing to give the court jurisdiction of the land. (5) Moreover the sale to the widow not having been induced by any act of the heirs, and she not having paid any thing therefor, but merely being charged with the amount of her bid in the executor's accounts as having been paid to her as part of the personalty, there was no equitable estoppel or estoppel in pais to prevent the action by the heirs. Second Division, Oct. 6, 1891. Sweeney v. Warren. Opinion by Follett, C. J. 6 N. Y. Supp. 575, reversed. Vann, J., dissenting.

RESTRAINT OF ALIENATION.-(1) A will suspending the power of alienation of land for more than two lives in being at the time of the testatrix's death is not made valid by the fact that it gives a power of sale within that period if permission to sell is first obtained from the court, since permission may not be given. (2) Testatrix devised her real estate in trust to pay the rents and profits to her three cousins in unequal proportions, and provided by the tenth clause of