time at Cherry Valley, the latter were not affected by what was said. The defendant accordingly had no fact or circumstances upon which he could urge that he had been induced to place the building upon the rear part of the alley by any actual or constructive acquiescence of the owners of the property on the west side of the alley. The deeds through which the defendant obtained his title to the property conceded the right to equal enjoyment of the alley to the owners of the property on the west side, and limited both Wilson and the defendant to the "right, privilege, and liberty of free ingress, egress, and regress into, through, and out of the said alley, in common with all other persons entitled to pass through the same, but subject to the bearing and paying of a just and equitable proportion of the custs and charges of repairing and maintaining the said alley, and of such taxes, duties, and assessments, both ordinary and extraordinary, as shall or may at any time hereafter be charged, assessed, or imposed thereon." The conveyances of the property bounded upon the alley were made with this reservation and qualification; and when the building was commenced both Wilson and the defendant, Taylor, are chargeable with knowledge of precisely this state of the title. In judgment of law it was known to each that no right existed to build upon or incumber this alley, for that was the nature of the conveyances to them, and all of those preceding these conveyances, from the time when Stewart, the common owner, conveyed the first parcel, on the easterly side of the alley, to the Fourteenth Presbyterian Church. To create an estoppel, all the authorities require that the party depending upon it must have been misled or induced to act as he did by the conduct or language of the parties, whom it is insisted should be estopped. Here there was no inducement whatever, but what was done in the way of building upon the alley was with the full understanding of the rights of the adjacent owners to its use and enjoyment.

The court in its findings found as a fact that the owners of the land upon the westerly side of the alley, or some of them, knew that this building was being erected upon the alley, and made no objection to the erection of the same. But this finding, even if it had been fully supported by the evidence, did not justify a dismissal of the complaint; for as long as one or more of the joint owners did not know of the erection of the building,—and there is no evidence that either the daughter or Frederick Harriott had that knowledge,— the erection of the building upon the rear part of the alley was a wrong as to them, and a violation of their legal rights. But even knowledge on the part of the life-tenant and of Smith Harriott, one of the tenants in common in remainder, and the omission to object to the erection of the building, conferred no right on the defendant or Wilson to erect it, as long as by their own conveyances they had information of the fact that this property was appropriated to the use of the adjacent owners as an alley-way. If there had been an actual assent on the part of these owners to the erection of the building, and Wilson and the defendant had acted upon that in putting it up, then the right to use the part of the alley covered by the building as an alley-way would have been extinguished. Cartwright v. Maplesden, 53 N. Y. 622. But no such assent was derived from either one of the owners of this adjacent property.

The court at the trial found as a fact, upon evidence tending to establish its existence in the case, that since 1842 the property owned by the plaintiff at the commencement of the action had been separated from the alley by the easterly wall of a house standing upon No. 143, and a high, close, board fence extending from there to the rear of the alley, and that this continued to be the boundary on that line of the alley until 1879, when, as the evidence tended to show, the plaintiff opened the door or gate on Franklin street, after the commencement of this action. This proof, and the other evidence given, established no more than the fact that the owners of the property conveyed to the plaintiff did not use the alley-way, and did not contribute to its repair or

maintenance, or pay any of the taxes or assessments levied upon it. But an omission to use the alley, and the inclosure of the property on the line of it, was not an abandonment or extinguishment of the easement secured, as this was, by deed, to the owners of this adjacent property. Where the right to an easement depends upon mere use, it will be abandoned by the long discontinuance of that use. 3 Kent, Comm. (7th Ed.) 551-554. But where the easement or right of use is acquired by deed, this rule is inapplicable. Bannon v. Angier, 2 Allen, 128. Such an easement as is here considered is an interest in land. Arnold v. Railroad Co., 55 N. Y. 661. And where it is created by grant, something more than an omission to use it is required to extinguish the easement. Corning v. Gould, 16 Wend. 530. Or the party entitled to the use and enjoyment of the easement must appear to have devoted the property over which the easement existed to a different and inconsistent object, as was the case in Crain v. Fox, 16 Barb. 184. The mere omission to use an easement, the right to which has been acquired by user, may be, and ordinarily will be, lost in this manner, where that may be inferred to be the intention of a party entitled to the easement. Stokoe v. Singers, 8 El. & Bl. 31; Crossley v. Lightowler, L. R. 3 Eq. 279; Cook v. Mayor, L. R. 6 Eq. 177. But where the easement is created by deed, there it can only be lost when no estoppel arises by an adverse user, extending through such a period of time as is sufficient to create a prescriptive right, and 20 years' user is necessary for that purpose. Parker v. Foote, 19 Wend. 309. And an equal period of adverse use is required to extinguish the easement derived from a grant. Jewett v. Jewett, 16 Barb. 150, 157; Smiles v. Hastings, 24 Barb. 44; White v. Crawford, 10 Mass. 183; Pope v. O'Hara, 48 N. Y. 447, 452; Smyles v. Hastings, 22 N. Y. 217, 224; Wiggins v. McCleary, 49 N. Y. 346, 348; Jennison v. Walker, 11 Gray, 423, 425; Owen v. Field, 102 Mass. 90, 114; Nitzell v. Paschall, 3 Rawle, 76, 82.

The evidence of the defendant, as a witness in the case, was to the effect that himself and Wilson took the exclusive possession of the alley after the conveyance to them, in November, 1859; but that did not extend through a period of 20 years, for the action was commenced against them by the plaintiff in May, 1879, about 6 months before the completion of the 20 years. Besides that, no adverse use or occupancy of the alley was either alleged in the answer or found by the court. What the court did find was the abandonment of the use of it already stated, which of itself, as long as the right had been acquired by grant, did not extinguish that right. This alley proceeded southerly, from the southerly line of Franklin street, 83 feet, leaving 63 feet of it northerly of the northerly line of the defendant's building entirely unobstructed, except by the gate, which was closed at the street. The evidence given by the defendant proves the fact against himself that he kept this gate closed, intending thereby to exclude other persons from the use or enjoyment of the alley, not using it under his permission or authority. This fact of the closing of the alley was alleged in the complaint as a ground of action in favor of the plaintiff; and to that extent, certainly, he was entitled to recover in the action, for the defendant had no legal right, by the closing of the entrance to the alley, to exclude the plaintiff from its use or enjoyment. So far as that might be convenient to himself or his property, he had the legal right to maintain this action to have the gate opened, and thereby secure access to and from that portion of the alley which had not been obstructed by the building. As to the 20 feet of the southerly part of the alley covered by the building, it was not alleged in the complaint that its use was necessary for the enjoyment or convenience of the plaintiff's property. Neither was it made to appear that in passing to or from any part of his property this part of the alley-way was necessary; and as 63 feet of the alley already remained which he was entitled to use, it cannot be inferred from anything appearing in the case that this was not sufficient for all the conveniences required in the

enjoyment of his property. And in this state of the case it is quite evident that a recovery of a sum of money by way of damages will remunerate him for the loss or injury sustained by the closing of the rear 20 feet of the alley; and as this building is a valuable and expensive structure, although placed upon the rear of the alley by the wrong of the defendant and Wilson, it should not be adjudged to be removed as a nuisance or unlawful obstruction, when complete indemnity can be secured to the plaintiff in this manner. Trus tees v. Thacher, 87 N. Y. 311. There is no allegation in the complaint and no intimation in the evidence, that the defendant is not entirely responsible, or that whatever damages may be recovered will not be collected or paid; and as to this part of the case, therefore, no reason exists for the exercise of the equitable power or authority of the court. The complaint, too, has in part been drawn upon this theory; for it set forth the alleged fact that the plaintiff, by the erection of the building, had sustained damages amounting to the sum of $5,000. As to that part of the case it was for a jury to hear and determine it, unless a trial in that form should be waived; but, as to the 60 feet of the alley remaining open and unobstructed otherwise than by the gate located upon Franklin street by the defendant, the case was one for equitable interference. And the plaintiff was not deprived of his right to invoke that interference by opening the gate himself, as long as his title to the enjoyment of this part of the alley-way was disputed and resisted by the defendant, who in his testimony stated that he would exclude from the use of the alley all persons not acting under his authority or license. The judgment in the case should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event.

(Supreme Court, General Term, First Department. November 23, 1888.) 1. EXECUTORS AND ADMINISTRATORS-ACTION TO SET ASIDE DEED TO-ANSWER-SepARATE CAUSE OF ACTION.

In an action by a residuary legatee against the executor, to set aside conveyances by the testator to him as fraudulent, and for an accounting, allegations in the answer, of one made a co-defendant, as a person interested, that the will is void for the executor's fraud in procuring it, are foreign to the cause of action, and not authorized by Code Civil Proc. N. Y. §§ 452, 521, empowering the court to determine the rights of defendants as between themselves.

2. SAME-ACTION TO TEST VALIDITY OF DEVISE.

Neither are they authorized by Code Civil Proc. § 1866, providing for an action to test the validity of a devise.

8. SAME-PROBATE AND CONTEST OF WILL-JURISDICTION OF SURROGATE.

They are objectionable, also, under Code Civil Proc. §§ 2472, 2626, 2627, 2647-2653, giving the surrogate jurisdiction to determine the validity of a will, and providing for a further hearing before him, as the means of avoiding the effect of his determination, while unreversed.

4. SAME COUNTER-CLAIM-WHEN ALLOWABLE-INDEPENDENT TRANSACTIONS.

Such allegations are not authorized by Code Civil Proc. §§ 500, 501, allowing a counter-claim arising out of the contract or transaction alleged in the complaint, or connected with the subject of the action, or, in an action on contract, a counterclaim arising on another contract.

5. SAME-MOTION TO STRIKE OUT IMPROPER ALLEGATIONS-PRAYER OF JUDGMENT. The allegations, being voluminous, should be stricken out, on the executor's motion, that being the only remedy available to him, but the demand for judgment should not be stricken out.

6. SAME-RELEVANT ALLEGATIONS.

Allegations that the residuary devise to the executor is void on its face, and that the property included in it descended, and became distributable; that other actions are pending to revoke the probate, and to have the devise to the executor declared void; and allegations raising an issue as to whether, by the true construction of the will, a part of the residue is bequeathed as alleged in the complaint, and admitting that plaintiff and another are interested,-should not be stricken out.

Appeal from special term, New York county; MORGAN J. O'BRIEN, Justice.

In this action by Sarah N. Smith, a legatee of Cornelia M. Stewart, deceased, against Henry Hilton, individually and as executor, etc., to have set aside, as fraudulent, certain conveyances from Mrs. Stewart to Hilton, and for an accounting, in which action others are joined defendants, as persons interested, the defendant Hilton moved to strike out certain portions of the answers of his co-defendants, and, among others, the parts of the following allegations of the answer of Rosalie and Virginia Butler, inclosed in brackets: "VI. These defendants admit that, by the terms of the said paper writing purporting to be such original will, as modified by the said paper writing purporting to be such codicil, dated May 30, 1882, there was (assuming such paper writing to have been valid and operative) given and devised to the plaintiff (in addition to a legacy of two hundred and fifty thousand dollars) one-fourth part of the residuary estate of the said Cornelia M. Stewart remaining after the payment of the legacies and annuities purporting to be provided for in the said paper writings, and of the debts, if any, of the said Cornelia M. Stewart; [but whether, by the true construction and meaning of the said paper writings, (assuming them to be valid and operative,) there was also given and devised to the said Charles J. Clinch another fourth part of the said residuary estate these defendants say that they have no knowledge nor information thereof sufficient to form a belief.] VII. Upon information and belief, these defendants allege that the said Henry Hilton claims that, under and by virtue of the said paper writings, he is entitled, as trustee, to the remaining half part of the said residuary estate, to be had and holden by him, upon (so-called) trusts purporting to be, or claimed by him to be, by such paper writings, in that behalf, declared, and that he likewise claims, in respect of such half part, to be vested with the (so-called) powers purporting to be, or claimed by him to be, conferred upon him by such paper writings in that behalf. [But these defendants, upon information and belief, and as they are advised, allege that, if it be assumed that the said paper writings were duly made, executed, and published by the said Cornelia M. Stewart as testamentary instruments, with adequate testamentary capacity, and if it be assumed that they are not invalid, on the ground of fraud or undue influence, still, all those parts of the said paper writings which purport, or are claimed by the said Henry Hilton, to devise or bequeath to him, in trust, such half part of said residuary estate, or to create or vest in him any trust or trustestate in respect of the same, or any part thereof, are, upon the face thereof, illegal, invalid, ineffectual, and void, and that all those portions of said paper writings which purport, or are claimed by the said Henry Hilton, to vest in him any power or authority whatsoever in respect of such half part of such residuary estate, are likewise, upon the face thereof, illegal, invalid, ineffectual, and void.] [And, upon information and belief, and as they are advised, these defendants allege that, by reason of the premises, such half part of the said residuary estate, so claimed by the said Henry Hilton, as aforesaid, (even if the said paper writings should be upheld as valid testamentary instruments,) descended and became distributable to, and is now vested in, the heirs at law and next of kin of the said Cornelia M. Stewart, as in the case of intestacy, and is wholly free and clear from any operation, force, or effect of said alleged trust or trust-estate, or of said alleged powers, or any of them, and that said heirs at law are, so far as regards any real estate involved in this action, constituting any portion of such half part of the said residuary estate, entitled to the same, and the present possession thereof, and the rents and profits of the same, from the time of the said Cornelia M. Stewart's death, and that said next of kin are, so far as regards any personal property involved in this action, constituting any portion of such half part of said residuary estate, entitled to distribution of the same, in the due course of the

administration and distribution of the said Cornelia M. Stewart's personal estate.] [Moreover, these defendants, upon their information and belief, and as they are advised, allege that such claims as aforesaid on the part of the said Hilton, as well as the claims of any of the others of the parties to this action, based upon such paper writings purporting to be such will and codicils, or any or either of them, or any part thereof, are also subject, in the first place, so far as concerns the personal property involved in this action, to the final determination of the questions presented for adjudication in the matter of the petition of this defendant, Rosalie Butler, hereinafter more particularly referred to, presented by her to the said surrogate's court, praying, among other things, that the said probate might be revoked; and the said Hilton's claims are subject, in the second place, so far as concerns the real property involved in this action, constituting any portion of such half of said residuary estate so as aforesaid claimed by him, to the final determination of questions as to said Hilton's fraud and undue influence respecting said alleged testamentary instruments of the said Cornelia M. Stewart, presented for adjudication in the action of the defendant, Prescott Hall Butler, in this court, and now pending herein, against the said Hilton and others, hereinafter also more particularly referred to, and that there can properly be no adjudication in this action of the questions involved in said proceeding in the surrogate's court, or of said questions involved in said action brought by said Prescott Hall Butler.]" "IX. [These defendants, on their information and belief, admit that the plaintiff and the defendant Charles J. Clinch have respectively an interest in the subject-matter of the action, as heirs at law and next of kin of the said Cornelia M. Stewart.]" The motion was denied, and Hilton appeals.

Argued before VAN BRUNT, P. J., and DANIELS, J.

Leslie W. Russell and Elihu Root, for appellant. Joseph H. Choate, Treadwell Cleveland, William G. Choate, and H. W. Divine, for respondents.

DANIELS, J. The plaintiff is a legatee under the will of Cornelia M. Stewart, deceased. This legacy was given by the third paragraph of the will, amounting to the sum of $250,000. By a third codicil to the will, the testatrix also gave, devised, and bequeathed to her an equal half part of the share of her property and estate previously devised and bequeathed to her nephew, Charles J. Clinch. Under this paragraph of the codicil, she became entitled to an equal undivided one-quarter of the residuary estate of the testatrix. This action has been brought by her to maintain and enforce the provisions of the will and codicils made in her favor. And in support of it she has alleged that the defendant Henry Hilton, by means of undue influence and fraudulent representations upon his part, induced the testatrix to transfer and convey to him the principal portion of the residuary estate, thereby diminishing the quantity which she would otherwise have received under this devise and bequest. And by way of relief in this action she has demanded that the transfer and conveyances shall be set aside, and the defendant Henry Hilton required to account for her share in this property, the same as though the transfer and conveyances had not been made. The answers included in the motion to strike out portions of them were served by other relatives of the testatrix, who were made parties to the action, as persons interested and to be affected by its disposition. By their answers they have set forth and alleged that the will, and the codicils following it, were obtained from the testatrix by the defendant Henry Hilton through the use on his part of undue influence over her, and by fraudulent representations made to her; and on that account both the will and the codicils are objected to as being invalid and void against these defendants. The answers containing these allegations have been served upon the attorney for the defendant Henry Hilton; and it was in his behalf that the motion was made to strike out these allegations, together