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and 140 New York State Reporter $50,000 in the aggregate therefor” is not merely advisory, but is a limitation so that they have no authority to sell during that period for a less price. Fowler on Real Property Law of the State of New York (citing authorities) writes:

"While a peremptory power of sale does not per se suspend the power of alienation, a power to sell and distribute does not necessarily relieve a trust limitation, otherwise invalid, from the effect of suspending the power of alienation. So, if the execution of even a power of sale is, by any limitation, unduly postponed, such limitation violates the rule against a perpetuity, and is void, unless the power is of such a nature as to be presently extinguished or merged. Where the power may be released by a person entirely sui juris, it would seem not to create a perpetuity."

If the power of alienation was suspended for a term not measured by lives, then the provision is void. Brown v. Quintard, 177 N. Y. 75–82, 69 N. E. 225; McGuire v. McGuire, 80 App. Div. 63, 80 N. Y. Supp. 497. It is bad if at the time of the creation of the trust there was a possibility that there could be no sale for the period of five years. Nelson, C. J., in Hawley v. James, 16 Wend. 61-120, says:

“Now, if in either aspect the limitation of the estate might suspend the power of alienation beyond the time allowed by the law, it will be impossible to sustain it, because the rule is well established that a limitatioa which by possibility may create such a suspension is void.”

See, too, Amory v. Lord, 9 N. Y. 403, 415, citing Hawley v. James, supra; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 99, 69 N. E. 283, 67 L. R. A. 146; Trowbridge v. Metcalf, 5 App. Div. 318, 39 N. Y. Supp. 241, affirmed Trowbridge v. Trowbridge, 158 N. Y. 682, 52 N. E. 1126. In Spitzer v. Spitzer, supra, this court, per Cullen, J., said:

"The will directs that the executor shall sell, as soon as possible after the testator's death and within two years from the admission of her will to probate, for the best price that can be realized, but for not less than $18,300 without the written consent of the testator's sons. It seems to us that this does not violate the statute against perpetuities. The trust is to continue until the time of sale. If the authority to sell was unqualifiedly limited by the provision that the executor should obtain the sum of $18,500 for the property, the trust would be illegal because it might be that the executor never could obtain that price."

See, too, Stewart v. Hamilton, 37 Hun, 19-21.

The learned Special Term was moved to pronounce the provision valid by the consideration that a price well within the fair market value of the thing to be sold is no more than is implied in all powers of sale, and there was no attempt to show that the realty could not fetch the price named within five years. But the fact that normally a voluntary vendor does not sell at a sacrifice, if in any way germane to the question before us, could indicate nothing more than that this testator thought that the sum which he named might be realized within the five years. And the implied restriction upon an agent or a trustee that he should not make a voluntary sale at a foolish price is quite different from an express prohibition that he should sell only at a prescribed price. The validity of the provision, as I have shown, is not to be determined by probabilities or possibilities of a sale, but the possibility that there could not be a sale.

I am of opinion that the power of sale cannot be defeated or annulled. A specified part of the proceeds of a sale is to be held by the executors in trust for the lifetime of the testator's son George. Hence there cannot be a present right in existence to dispose of the entire in

terest. Garvey v. McDevitt, 72 N. Y. 556. In addition, after the gifts . to his children John and Sarah, and the making of the said trust for the life of George, any residue of the sale is to be distributed "amongst such Free Protestant Church and Evangelical Protestant Churches in sums not to exceed five hundred dollars to any one church, as my said executors or the majority of them then acting shall in their discretion deem most deserving and in need thereof, but no church shall be selected to receive any benefit under this provision of my will unless the same shall be a free church, where no charge is made or fee is required to be paid to occupy the pews or sittings therein during divine services." Now, I do not find that there is any religious denomination known or described even approximately as the "Free Protestant Church." There is a religious body known as the “Evangelical Church," but there is doubt whether the testator by the expression Evangelical" intended any more definite designation than those churches which conformed to the principles of the gospel of Jesus Christ. Century Dictionary. It is to be noted that there is no territorial limitation whatever, but, for aught expressed, all churches within those terms may be selected by the executors. There is serious question under the rule of Read v. Williams, 125 N. Y. 560, 26 N. E. 730, 21 Am. St. Rep. 748, whether this power is not too indefinite. However this may be, this residue was not given to any church or churches which could be selected at the time of the death of the testator, for only after the sale was the residue to be given to such churches “as my said executors or the majority of them then acting shall in their discretion deem most deserving and in need thereof. It seems clear that the executors cannot now exercise such a discretion which must regard the deserts and needs of particular churches, which at the time of the distribution may then show themselves worthy and free churches.

The scheme of the part of the will under consideration contemplated the creation of a fund which required the sale of the realty specified. It is true that the power of sale was limited for a period by the provision in question, but at the expiry of that period the power of sale was imperative. All agree that the provision for accumulations meanwhile is bad. The question is whether the provisions are so articulated with the scheme that the scheme itself must fail. It we eliminate the void provisions as to the sale (that for accumulations is but incidental to it), we cut off a provision designed not to defer the scheme, but to secure a particular price. Whenever that price could be obtained, the scheme of distribution was to be carried out. It was not essential to the scheme that a particular price be obtained, inasmuch as there is no restriction as to price after the lapse of five years. Elimination of the void provision leaves intact both the imperative power of sale and the plan of distribution. If we uphold the scheme, aside from the void provisions, we but now make possible the plan the testator intended should become effective immediately within five years if the

and 140 New York State Reporter fixed price was realized, and, in any event, upon the lapse of that period. We write, then, no new will. We but possibly accelerate the operation of testator's dominant purpose. The disposition of the fund to be realized from a sale does not offend the law. The trust in $10,000 thereof is measured by the life of the son George. The other parts thereof are to be distributed outright, and the disposition of the . residue, if any, may be sustained. Under the doctrine of Kalish v. Kalish, 166 N. Y. 368, 372, 59 N. E. 917, Haxtun v. Corse, 2 Barb. Ch. 506, and Van Vechten v. Van Veghten, 8 Paige, 104, I think that this should be the disposition of this case. My view constrains me to differ and to agree with the learned Special Term. First. I differ in that I think that the limitation of the power of sale for five years is bad. Second. I agree that the direction for the accumulation of the net rents and profits until the sale is bad. Third. I agree that, if the sale does not realize the sum of $30,000, the rents are given to the absolute distributees to the extent necessary to make the fund $30,000, and further I think that an excess of rents over that sum is applicable to the provision for the churches. Fourth. I agree that the one-third of that contribution which is directed to be held in trust for the life of George E. Woolley is void. Fifth. In other respects I agree.

I advise that the judgment, as thus modified, should be affirmed, with costs to all parties payable out of the estate. All concur.

(121 App. Div. 395.)

BIRCH y. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. MUNICIPAL CORPORATIONS–MAINTENANCE OF PIERS-DEFECTS—LIABILITY.

A city acquiring under Laws 1894, p. 1903, c. 758, as amended by Laws 1895, p. 1946, c. 931, a pier, and permitting the use thereof by the public, must keep it in a reasonably safe condition, and it is not relieved from liability for injuries in consequence of its defective condition by failing, since the acquisition thereof, to do anything to keep it in a reasonable condition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corpora

tions, § 1806.] 2. NEGLIGENCE-WHAT CONSTITUTES.

Negligence is the violation of duty by omission or commission, which creates a menace, and when it becomes effective by causing injury to a blameless person liability follows.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, $S 1, 2.) Woodward and Jenks, JJ., dissenting.

Appeal from Trial Term, Kings County,

Action by Gustaf Birch, as administrator of Emil Birch, deceased, against the city of New York. From a judgment of dismissal at the close of the case of plaintiff, he appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Isaac M. Kapper, for appellant.
James D. Bell, for respondent.

HIRSCHBERG, P. J. The plaintiff's intestate, a boy 19 years of age, was on a tugboat on the night of July 26, 1903, taking a pleasure sail. When the captain of the tug desired to put the passengers ashore, the water was so rough that he did not deem it safe to land them by means of certain small boats in which they had come to the tug. He landed them at a pier on the shore of the East river belonging to the defendant, and, when the plaintiff's intestate stepped upon the pier, he went through a hole occasioned by the absence of a plank, and was drowned. The boy had never been on the pier before, and knew nothing about its condition so far as the evidence shows. The night was described by one of the witnesses as being "pretty dark."

I think there was sufficient in the case to require the submission to the jury of the question of the defendant's negligence. The pier was acquired by purchase under the provisions of chapter 758, p. 1903, Laws 1894, as amended by chapter 931, p. 1946, Laws 1895. It is unnecessary to refer in detail to the legislation further than to say that it provided for the selection, laying out, construction, and maintenance by cities having a population in excess of 800,000 of a public driveway and parkway and the acquisition of riparian rights, public places, wharves, piers, and appurtenances in connection therewith. As the case is presented, it is undisputed that from the time of the acquisition by the defendant of the pier in question and its approaches, covering a period of many years, nothing whatever was done by the defendant to keep it in reasonable condition for public use, and that during all that time the public was permitted with the defendant's knowledge to use it so far as it could be used without restriction. It was used constantly and openly by parties fishing and swimming or enjoying pleasure excursions, and it was also used occasionally by contractors in landing materials under permit from the city authorities. The evidence is ample to justify a jury in concluding that a tragedy such as has occurred was reasonably to be expected.

It needs no citation of authorities to show that in the circumstances stated the duty rested on the municipality to keep all its property while in public use in a condition of reasonable safety. I do not understand that the dismissal of the complaint was based upon a denial of such duty, but was rather based upon the fact that the structure was so delapidated as in itself to place upon any one using it the burden of the assumption of the risk in so doing. The learned Trial Court said:

"I conceive plainly why the city should be responsible in a measure, at least for care to see to it that a pier so situated and used is safe, but here is a ruinous old-tumbled down structure built nobody knows when, but it has been ruinous for 10 years. There has been no attempt to repair it. The evidence here would not warrant anybody in concluding that it had ever been held out to the public or to anybody as a safe place, or a place that might be used for any purpose, and there is certainly no public road to it."

I do not think there is any support in law for the proposition that a municipal corporation can obtain immunity by reason merely of the great length of time during which it has permitted its property to become and to be ruinous, or that it could acquire such immunity by reason of the great extent of the risk and danger thus occasioned. Negligence in law is the violation of duty by an omission or a commission

and 140 New York State Reporter which creates a menace, and, when the menace becomes effective by causing injury to a blameless person, liability necessarily follows. It seems illogical to say that, if the city had done anything in discharge of its admitted duty to try and make this tumble-down structure safe, it would have been liable, but that, inasmuch as it has done nothing whatever in that regard, it is to be held exempt.

The judgment should be reversed.

Judgment reversed, and new trial granted ; costs to abide the event. All concur, except WOODWARD and JENKS, JJ., dissent.

WOODWARD, J (dissenting). Plaintiff's intestate, a boy 17 years of age, on the 26th day of July, 1903, went out with a party in a tugboat for a pleasure excursion. The party boarded the tug' by means of rowboats, but, on returning, the water was rough, and the captain of the boat landed at a pier on the shore of the East river, the property of the defendant. Plaintiff's intestate stepped out upon the dock, took a step forward, and disappeared through a hole in the dock. He was not again seen alive. From a judgment of nonsuit the plaintiff appeals to this court.

The dock in question 'was originally owned by private parties. It was purchased under legislative authority by the county of Kings for the purpose of constructing what was known as the "Shore Road," and subsequently came into the ownership of the defendant through the provisions of the Greater New York charter. The pier in question has not been held out as a public pier at any time since it came into the ownership of the defendant or its immediate predecessor in title. It appears to have heen left substantially as it existed at the time the property was purchased from the original owner, subject to the action of the elements, and with no purpose on the part of either of the municipalities to make any use of it as a dock or for public purposes. It came into the ownership of the defendant merely as an incident to its parkway system, and was apparently considered of no practical utility, and the fact that persons have fished from this dock, or that two contractors, under permits from the park commissioners, have used the dock for a temporary purpose, does not constitute this a public dock, nor does it hold out an invitation for its use by the public. Under the facts disclosed by the evidence, there was no liability on the part of the defendant, and the nonsuit was properly granted.

(121 App. Diy. 488.)

HALL V. NEW YORK, N. H. & H. R. CO. et al.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. EXPLOSIVES-PERSONAL INJURIES-PERSONS LIABLE-RAILROADS-CONSTRUC

TION

Where dynamite obtained by a contractor engaged in widening railroad tracks for use in his work exploded, and injured plaintiff, but it did not appear that the railroad company had anything to do with the dynamite and the cause of the explosion was unknown, a verdict against the railroad company was unwarranted.

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