power or authority to sell such property, and could not give a legal title thereto, and thereupon the plaintiff brought this action for a specific performance by the defendants of their contract to purchase the property in question. The facts are undisputed, and are substantially as herein stated.

The court will not decree a specific performance upon the part of the vendee of a contract to purchase real estate where there is doubt of the ability of the vendor to convey a good, marketable title to the property in question. Every purchaser of real estate is entitled to a marketable title, free from incumbrances and defects, and he will not be compelled to take property the possession of which he may be compelled to defend by litigation. The title should be such that, if he wishes to sell, he may be reasonably sure that no flaw or doubt will arise to disturb its market value. Shriver v. Shriver, 86 N. Y. 575; Vought v. Williams, 120 N. Y. 253, 24 N. E. 195; Irving v. Campbell, 121 N. Y. 353, 24 N. E. 821. In this case the power of sale is expressly granted to the trustee, but it is in terms confined to the property conveyed to the trus tee. It is granted for a double purpose,-paying debts, and making investments; and that power seems to have been exercised already, it appearing in the plaintiff's complaint that the property in question here was procured by an investment of the proceeds of a sale or sales of the trust property. There is no express authority for a sale of any after-acquired property. The court will imply those powers which are necessary to carry out the purposes of the trust; no more. There are no purposes of the trust alleged in the plaintiff's complaint, nor can I see any in reading the trust deed, which render it necessary to sell the property in question here; neither do I think that the power to sell the property in question can be inferred from the power of the sale expressly given in the trust deed. It will be observed that the trustee is directed, after paying the debts, to reinvest the surplus proceeds arising from any sale or sales in the purchase of good, productive real estate, or in bonds and mortgages, "or in such other safe and permanent securities as he may consider proper." It seems to me that, instead of inferring from this the right to sell property in which the proceeds of such sales had been invested, these words are rather a restriction upon the continued power to sell, of the trustee, and that the grantor contemplated permanent investments, to continue during the life of the trust estate. The question, at least, is a serious one, not free from doubt, and one which cannot but affect the market value of the property in question, and the title offered to the defendants is therefore not one that a court of equity should compel them to accept.

The complaint should therefore be dismissed, with costs.

LYLE et al. v. LITTLE et al.

(Supreme Court, General Term, First Department. January 18, 1895.) ADJOINING LANDOWNERS-OVERHANGING WALL.

Where the owner of a lot erects a wall the foundation of which is wholly on his lot, but a part of which overhangs an adjoining lot, the adjoining owner will not be enjoined from removing so much of the wall as overhangs.

Appeal from special term, New York county.

Action by John S. Lyle and another against Joseph J. Little and others to enjoin defendants from removing parts of the northerly wall of plaintiffs' building. A preliminary injunction was granted, and, on a motion to vacate the same, the following order was entered: "It is ordered that the said injunction herein before granted be, and the same is hereby, vacated and annulled; and it is further ordered that the defendants, and each of them, and their and his servants, agents, and employés, be, and they hereby are, restrained and enjoined during the pendency of this action, or until the further order of the court, from in any manner interfering with, removing, or cutting away any part or portion of the wall on the northerly side of the building known as 'Number 471 Broadway and 44 Mercer Street,' in the city of New York, saving and excepting so much of said wall as extends, overhangs, bulges, or protrudes to the northward of the line between the premises on which said building stands and the premises adjoining on the north, or to the northward of points vertically over said line. And this injunction shall not in any way be taken as restraining or enjoining the defendants, or either of them, or any one on their behalf, from cutting away or removing such part or parts of said wall, if any, as so extend, overhang, bulge, or protrude to the northward of said line or of points vertically above it." From the portion of said order which reads as follows: "Saving and excepting so much of said wall as extends, overhangs, bulges, or protrudes to the northward of the line between the premises on which said building stands and the premises adjoining on the north, or to the northward of points vertically over said line;" and the portion which reads: "And this injunction will not in any way be taken as restraining or enjoining the defendants, or any one on their behalf, from cutting away or removing such part or parts of said wall as so extend, overhang, bulge, or protrude to the northward of said line or of points vertically above it,"-plaintiffs appeal. firmed.

Af

The opinion of Mr. Justice PATTERSON at special term is as follows:

It is stated in the complaint in this action that the wall, interference with which on the part of the defendants is enjoined by the temporary injunction, stands altogether upon the plaintiffs' land; and, if such is the fact, the injunction must be continued. The question of title to the two inches of ground, which it is said the defendants intend to occupy by their wall, cannot be determined in this action. The answering affidavits state, however, that the defendants have no intention of building beyond their own line; but, to prevent any further misunderstanding and dispute with reference to that subject, the in

junction will be continued, to prevent any interferences with the plaintiffs' wall as it now stands, except as hereinafter stated.

It is claimed on the part of the defendants that there is an encroachment of the plaintiffs' wall, caused by its bulging or overhanging at various points about the foundation, over the land of the defendants, and that such bulging prevents the erection of a wall on their land, which shall be perpendicular from the foundation to the top of the building. This condition of the wall seems to be established. The plaintiffs have no right by prescription or otherwise to maintain the overhanging wall, so as to prevent the defendants erecting their building with a true perpendicular side wall, or to compel a change in their plans to accord with the defect in the plaintiffs' wall. To whatever cause this encroachment may be attributable, its existence cannot interfere with the defendants' rights, and there is no sound reason suggested why they should be obstructed in the occupation of space for their building which justly belongs to them. If, by cutting in the wall as the defendants propose to do, the plaintiffs' building may be rendered insecure, it is for them to see that it is made safe; and the answering affidavits show that the defendants have not only expressed a willingness, but that they are ready, to co-operate with the plaintiffs in any reasonable method of rendering the plaintiffs' building safe, and for that purpose the plaintiffs would be permitted to enter upon the defendants' land. It is somewhat indefinite from the papers at what part of the wall and to what extent this overhanging exists,-a matter which should be determined by an accurate survey of the wall, so that a proper provision may be made as to the parts of the wall in respect to which the injunction is not to apply. It would seem appropriate that such a survey should be procured from an officer of the department of buildings of the city of New York.

The injunction will be modified in the manner suggested, and the order may be settled on two days' notice.

JJ.

Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT,

J. Kling, for appellants.

A. B. Thacher, for respondents.

PER CURIAM. Order affirmed, with $10 costs and disbursements, on opinion of special term.

(11 Misc. Rep. 633.)

ABRAM FRANCH CO. v. SHAPIRO.

(City Court of New York, General Term. March 19, 1895.)

SUPPLEMENTAL ANSWER-LACHES.

An application for leave to file a supplemental answer alleging that plaintiff, being a foreign corporation, had failed to file the certificate required by law, will be denied on the ground of laches, where it was not made until 13 months after issue was joined, and the complaint alleged that plaintiff was a foreign corporation.

Appeal from special term.

Action by Abram Franch Company against Harris Shapiro. From an order granting leave to defendant to file a supplemental answer, plaintiff appeals. Reversed.

Argued before EHRLICH, C. J., and VAN WYCK and NEWBURGER, JJ.

Hayes & Greenbaum, for appellant.
Albert L. Phillips, for respondent.

NEWBURGER, J. This is an appeal from an order granting leave to the defendant to serve a supplemental answer to the complaint. The action was commenced in November, 1893, and issue was joined on or about the 18th day of December, 1893. The case was duly noticed for trial, and appeared on the day calendar a . number of times. On the 18th day of January, 1895,-13 months after issue was joined,-the defendant moved for leave to serve a supplemental answer to the complaint; setting up as an additional defense that the plaintiff, being a foreign corporation, has failed to file a certificate authorizing it to do business in this state. The defendant's moving papers showed that the certificate was filed after the action was commenced. The motion was, however, granted, and from the order entered thereon this appeal is taken.

The defendant was guilty of laches. It is claimed, however, by the defendant, in his affidavit, that at the time of joining issue he did not know that plaintiff had failed to file a certificate as required by chapter 687 of the Laws of 1892. The complaint alleges that the plaintiff was, and still is, a foreign corporation organized under the laws of the state of Massachusetts; and, if the defendant desired to take advantage of a failure on the part of the plaintiff to comply with any law of this state, it was his duty to inquire. He knew that the plaintiff was a foreign corporation, and he could have discovered in November, 1893, what he ascertained in January, 1895, by communicating with the secretary of state. It is claimed, however, by the learned counsel for the defendant, that he was misled by reason of several opinions found by him upon questions similar to the one at bar An examination of the authorities cited (Contracting Co. v. Del Genovese [Super. Ct. N. Y.] infra: Abram French Co. v. Marx [Com. Pl. N. Y.] 31 N. Y. Supp. 122) fails to convince us of any change in the law in reference to the filing of certificates; and the two opinions cited are not opposed to each other,-one simply holding that the failure on the part of a foreign corporation to file a certificate was good ground for a demurrer, and the other holding it could be raised by answer where it did not appear in the complaint. The defendant's laches have not been properly explained. For these reasons the order appealed from must be reversed, with costs. All concur.

BOUKER CONTRACTING CO. v. DEL GENOVESE.

(Superior Court of New York City, Special Term. June 10, 1893.)

At chambers. Defendant demurs to the complaint. Sustained. SEDGWICK, C. J. The complaint does not allege in what state the contract in action was made. Chapter 687, Laws 1892, refers only to actions on contracts or business done or made in this state. As no attention was given to this on the argument, none will be given here. If the procuring under the act the certificate provided for is an essential part of the right of a foreign corporation to sue, it is presumed that the certificate has not been obtained, if that fact be not pleaded. It is not here pleaded. The fifteenth section exacts that no foreign stock corporation doing business in this state

without such certificate shall maintain any action in this state until it shall have procured such certificate. Under this, the present action cannot be maintained validly. The plaintiff claims that another part of the section authorizes the bringing of the action. It is: "No such corporation, now doing business in this state, shall do business herein after December 31st, 1892, without having procured such certificate from the secretary of state, but any lawful contract previously made by the corporation may be performed and enforced within this state subsequent to such date." The last clause, "but any lawful contract," refers to the first part of the section, and does not introduce any independent, substantial provision. It means that, if the corporation that has obtained authority to do business has made a contract before the authority has been obtained, that contract may be performed and enforced. The word "the" is significant, as indicating a corporation that has obtained authority. I am of opinion that the obtaining of the certificate of authority to do business should have been pleaded. Judgment for defendant on the demurrer, with leave to plaintiff to amend on payment of the costs of the demurrer.

(12 Misc. Rep. 149.)

WYCKOFF et al. v. FROMMER.

(Common Pleas of New York City and County, General Term. April 1, 1895.) 1. APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW.

Where defendant, in a summary proceeding to recover possession of real estate, consents to the trial, and litigates the issues, he thereby waives the objection that the petition on which the precept was issued was not sufficiently definite in respect to the time of letting.

2. LANDLORD AND TENANT-EVICTION OF TENANT.

There can be no eviction of a tenant without an abandonment of possession by him.

Appeal from Tenth district court.

Summary proceeding by Cora D. Wyckoff and others against Robert Frommer to recover possession of land.

From a final order

in favor of plaintiffs, defendant appeals. Affirmed. Argued before BISCHOFF and GIEGERICH, JJ.

Joseph Martin, for appellant.

E. G. Duvall, for respondents.

BISCHOFF, J. This was a summary proceeding to recover the possession of demised premises for non-payment of rent. cept was issued out of and made returnable to the Seventh district court, within whose jurisdiction the premises were situated, and the proceeding was, upon the service and return of the precept, with the written consent of the parties, transferred from said court to the Tenth district court for trial. Thereupon the trial was had in the Tenth district court, and the proceeding was determined by a final order, made by the justice thereof, and sitting in the lastmentioned court, awarding possession of the premises to the landlords. From the final order the tenant has appealed, and the return upon this appeal is from the Tenth district court.

The order appealed from is not void for want of jurisdiction of the justice who made it. Observing that there is no provision for retransfer of the proceeding to the court out of which the precept was issued, it is beyond dispute that it is not only the province, but the duty, of the justice sitting in the court to which the proceeding