It was held on both trials that the omission to perfect the appeal was an act of negligence. In other words, he was guilty of a breach of professional duty in that respect. It requires no argument to prove that the steps necessary to be taken, including time, are peculiarly within the province of the attorney. He owes active diligence to his client, who has a right to assume that he will be properly advised in reference to all matters which relate to the legal business entrusted to his attorney. At what time he ascertained that he was in error in advising the defendant that he had good grounds for appeal does not clearly appear. The plaintiff was sworn as a witness on his own behalf, and after testifying to his employment and the satisfactory character of his services until after judgment, he was asked on his own behalf the following question: "Were you in error in stating that the plaintiff was entitled in any event to recover $200?" This was objected to and overruled, and exception taken, and the witness answered: "On a subsequent investigation I discovered I was in error in making that statement." The plaintiff then proceeds to state wherein he thought he had fallen into an error, but he enters into no details. Judge Vreeland, the counsel for the defendant on the trial before the referee, gives some evidence tending to show that the report was correct. The referee also gives testimony tending to support his findings. The report of the referee appearing in the case throws no light upon the particular findings criticised by the plaintiff when he first wrote the defendant; nor does the plaintiff state what the defendant's ac counts showed upon which he stated the referee predicated his findings. But he does say in that letter advising an appeal that the defendant's account, if taken as true, would have required a report in his favor of $200 in the action before the referee. This matter was not explained upon the trial from which this appeal is taken. The question above quoted, to which objection was made and exception taken, simply asked for the opinion or conclusion of the witness. It is true that he stated he was in error in some particulars, but he omits to explain all the alleged errors for which he advised the appeal in his letter. The question itself did not call for facts, but an opinion or conclusion, and when the facts stated failed to embrace all of them, it is impossible to say how far his general answer influenced the jury. It is obvious that the counsel on the other side, Judge Vreeland, would naturally, so far as consistent with the truth, favor the referee's findings; also, that the referee would desire to have it appear that he reached a proper conclusion on the evidence submitted to him. As no appeal was taken in pursuance of the defendant's directions, and as exactly what occurred on the trial before the referee did not appear, it is not easy to see whether the plaintiff was mistaken when he strongly advised an appeal. If he had obeyed instruction and taken an appeal, the case would have shown what occurred before the referee, and this court could have intelligently determined whether the referee fell into errors which required a reversal. The explanation of the plaintiff on the trial N. Y. STATE REP., VOL. XXXIII. 93 fails fully and clearly to show whether he was in error in his advice about bringing an appeal. It was his duty to bring one when so directed, and cogent reasons should be given showing that the omission occasioned no damage. The reasons assigned for a new trial by the trial justice before whom the cause was first heard are not satisfactorily answered by the plaintiff. The courts cannot be too careful in exacting diligence on the part of attorneys in protecting the interests of their clients. It was agreed by each of the learned justices on the trials that a reversal would have shown sufficient evidence of damage; and unless the plaintiff was very much mistaken in what he said before he wrote that the time to appeal had expired, there are strong reasons for supposing that an appeal would have resulted in a new trial. The question as to whether errors requiring a new trial were fallen into is one of law for the court which cannot be properly disposed of by a jury. It is not easy to see how the jury could have intelligently determined that question in the absence of a full and accurate statement as to what occurred on the trial. In the presence of such a statement, the trial justice could have instructed the jury upon the law of the case, and any error which he might have fallen into would be reviewable in this court, but where the legal questions are transferred in a general way to the jury it cannot be known with accuracy upon what the verdict turned. It seems to have been assumed on the trial that the question as to whether the contract was entire was not involved. The court proceeded upon the assumption that the plaintiff was entitled to a verdict unless damages were proved by way of counterclaim. It is true that the answer claims such damages; it is equally true that it alleges a wrongful omission on the part of the plaintiff to take an appeal, and the court in substance held that the answer in that respect was true. If such was the case, the contract being entire, the cases indicate that a wrongful omission to obey instruction would defeat a recovery for past services. Chatfield v. Simonson, 92 N. Y., 209-215; Tenney v. Berger, 93 id., 524; Andrews v. Tyny, 94 id., 16. It need not be said that an attorney has no right to abandon his client's case without giving him reasonable notice. Langdon v. Castleton, 30 Vt., 285. It is true that an attorney may call upon his client for pay from time to time, and would be justified in quitting his services if he failed to furnish him with funds. But by his retainer he is employed until the litigation ends, unless sooner discharged by his client. Harris v. Osbourn, 2 C. & M., 629; Nicholls v. Wilson, 11 M. & W., 106; Langdon v. Castleton, 30 Vt., 285; Davis v. Smith, 48 id., 52; Mygatt v. Wilcox, 45 N. Y., 306; Scott v. Elmendorf, 12 Johns., 317. In this case there is no question about the retainer, nor is there any claim of a demand of payment while the litigation proceeded, or a wrongful request to bring an appeal, or that the attorney did not wrongfully bring one. There is no claim that upon any ground the attorney desired to abandon the case. Under such circumstances, it may well be doubted whether the plaintiff could recover. He should be either required to show substantial performance or a good reason for his omission. There are many cases where by the terms of the contract payment may be exacted as the work progresses in order to enable the laborer to complete his job. But where such is not the express condition of the contract and no request for payment is made, and there is a wrongful failure to complete the job and the contract is entire, the above cases are to the effect that a wrongful omission may defeat recovery. While it is true that the answer claimed damages by way of counter-claim, it is equally true that it alleges facts showing nonperformance by the plaintiff. The case was disposed of at the trial upon a wrong theory. The telegram having reached the plaintiff in time to enable him to bring an appeal, the court would have power after it was brought to grant time for preparation of the case or to file exceptions. A new trial must be granted, with costs to abide the event. DAVID K. BELL et al., as Board of Health of the Town of New The defendant corporation discharged its sewage into a creek and upon lands in the town of New Brighton. The plaintiffs as the board of health of such town, upon notice to defendant, adopted a resolution declaring the discharge of such sewage a nuisance, directing its removal and imposing a penalty for a violation thereof. Held, that an action could be maintained to enforce the order so made and to restrain the continuance of the nuisance; and that a continuance of such nuisance after service of notice of the resolution was a violation of the order for which an action could be maintained. (Gould v. City of Rochester, 105 N. Y., 46; 6 N. Y. State Rep., 503, followed.) APPEAL from a judgment entered April 9, 1889, in Monroe county, upon the decision of the special term, declaring the discharge of sewage from Monroe avenue and Nichols park into Thomas creek a nuisance, and restraining the further use of such creek for such purpose, the injunction, however, not to become operative until October 1, 1889, to enable the defendant to make other provision for the discharge of its sewage. H. J. Sullivan, for app'lt; Walter S. Hubbell, for resp'ts. MACOMBER, J.-The act of the defendant in discharging its sewage coming from Monroe avenue and Nichols park, in the city of Rochester, through ditches, conveying the same, into Thomas creek, which flows through the town of Brighton to Irondequoit bay, is the same nuisance complained of in the case of Gould v. The City of Rochester, 39 Hun, 79, where the supreme court, at special and general terms, denied relief, and in 105 N. Y., 46; 6 N. Y. State Rep., 503, where the court of appeals reversed such determination and decided that the plaintiff had a right of action under chap. 324 of the Laws of 1850, as amended by chap. 351 of the Laws of 1882. The case was subsequently tried and relief given to the plaintiffs in that action. On the second appeal, however, to the general term the point was for the first time made that the statutes upon which the plaintiffs had proceeded had been repealed by § 9 of chap. 270 of the Laws of 1885. There was no provision in the act of 1885 saving actions already brought in pursuance of the previous statutes. The plaintiffs apparently acquiesced in such decision and discontinued such action; whereupon the present suit was brought under the act of 1885, and the same has proceeded to judgment in accordance with the principles laid down in the case of Gould v. The City of Rochester, above cited, by the court of appeals. Upon the trial of this action the following facts were established: That large portions of the city of Rochester, to wit, about 240 acres, immediately northwest of the town of Brighton, above the head-waters of Thomas creek, have their natural drainage into such creek; that this part of the city of Rochester is drained by a system of sewers having an outlet near the head of Thomas creek, the outlet being known as the Monroe avenue outlet sewer, which includes Nichols park outlet. From such outlets the defendant, several years ago, opened a drain or ditch leading to a point in Thomas creek, within the limits of the city, through which there were discharged the contents of the sewers into such creek. Prior to the passage of the regulation by the board of health hereinafter adverted to, the city constructed a pipe sewer leading from the mouths of Monroe avenue and Upton park sewers to the boundary line between the city and town, such pipe sewer being laid in the old ditch through which the sewage formerly flowed, since which time all the sewage from these outlet sewers has been discharged immediately onto lands in the town of Brighton and thence into Thomas creek. Such use of Thomas creek is adjudged, upon adequate evidence, to be a nuisance. The plaintiffs on the 20th of July, 1888, served upon the defendant a notice, that on the 6th of August next thereafter, at a given hour, the board would consider and act upon the question as to whether such discharge of sewage was a nuisance and detrimental to the public health. Upon such hearing, at which the defendant does not appear to have been represented, a resolution was adopted declaring that the discharge of such sewage was a nuisance; that the removal of the same was necessary for the preservation of the public health; that the same be suppressed and removed, and that a penalty of $100 be imposed upon any person who should thereafter violate the ordinance, with an express determination to prosecute any person or corporation violating such regulation and authorizing the beginning of an action by the board to recover the penalty or suppress and restrain such nuisance. Such resolution was on the 9th day of August, 1888, served upon the defendant. No attention was paid to it, however, and hence the beginning of this action on the 19th day of September following. The findings by the learned judge at the trial are not substan tially controverted. Such being the case, there is no longer any doubt as to what the legal conclusion therefrom is, for the same has been declared by the court of appeals in the former case, where it is held that an action in equity might be maintained to enforce the order so made by the board of health, and to restrain the continuance of the nuisance and that while the board could not go into the city and interfere with its sewers, it could enforce its orders and prevent the discharge of the sewage upon lands of the town where it created a nuisance and that a continuance of the discharge of the sewage after the service of notice of the resolution adopted by the board is a violation of the order for which an action might be maintained. It follows, therefore, that the judgment appealed from, having been pronounced under the act of 1885, which contains like provisions considered and passed upon by the court of appeals favorably to the contention of the plaintiffs, must be affirmed. DWIGHT, P. J., and CORLETT, J., concur. MARY G. MORRIS, Resp't, v. ALFRED G. SICKLEY, Impl'd, Applt. Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. WILL-LEGACY-WHEN A CHARGE ON REAL ESTATE. The will in question after payment of debts gave legacies to plaintiff and another, which were followed by the residuary clause. Held, that the terms of the will were not inconsistent with an intention on the part of testatrix to charge the legacies on the real estate, and it must be so construed if such intention appears from extrinsic circumstances existing at the time of making the will or from subsequent changes in the form and character of the property. 2. SAME. Testatrix lived with plaintiff, paying a small amount for board. At the time of making the will she had sufficient personal property to pay the legacies, but subsequently the estate was changed in form to real estate by investment in land, and two of the residuary legatees died. Held, that the legacy was properly charged on the real estate. APPEAL from a judgment entered on the findings and decision of the court at special term (Livingston, Dec., 1889). S. Hubbard, for app'lt; L. O. Reed, for resp't. DWIGHT, P. J.-The action was to charge a general legacy on real estate of which the testatrix died seized. The legacy in question and one other were given after the payment of debts and funeral expenses, and the expense of a tomb stone, and they were immediately followed by the familiar residuary clause which disposed of "all the rest, residue and remainder" of the estate, "both real and personal." Concededly this will did not, by its terms, purport to charge the plaintiff's legacy on the real estate of which the testatrix should die seized; but its terms were not inconsistent with such an intention on the part of the testatrix, and it might be construed to do so, provided that intention should be made to appear from extrinsic circumstances. Brill v. Wright, 112 N. Y., 129; 20 N. Y. State Rep., 305. It must also be admitted that if the inquiry for the intention |