FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. for new trials upon the ground of surprise, he showed enough to invoke a favorable exercise of discretion. That is, he showed that if he had had any notice or intimation of the defense to which the defendants' testimony was addressed, he might have come into court prepared with evidence which would at least have required the submission of the question of fact as to Hirsch's agency to the jury. That he was surprised by the testimony adduced by the defendants is quite probable. And that surprise was entirely natural. While the testimony given by the defendants may have been admissible under the pleadings, it was not testimony that a practitioner of ordinary prudence could have anticipated. The defendants had admitted in their answer the ownership of a horse and wagon as averred in the complaint. They had apparently denied only the negligence of their servant with regard to the driving of such horse and wagon. And yet, analytically considered, the denial doubtless covered the agency as well. Almost any one, however, even the most skilled in the profession, might have been deceived by the form and tenor of such an answer. There was no affirmative plea as to the arrangement with Hirsch-nothing to call the plaintiff's attention to the defense really contemplated on that head. If the plaintiff's counsel upon the offer of the defendants' evidence or after it was put in had made known his predicament to the learned judge, doubtless he would have been relieved. An adjournment might have been granted, or leave given to withdraw a juror. But nothing of the kind was requested. There was no suggestion of surprise. The counsel relied upon his affirmative proof, and seemingly took his chances upon the ruling of the court. The rule is well settled that a plaintiff who is surprised by evidence which he is not prepared to rebut should move for an adjournment or for leave to withdraw a juror; otherwise he is not entitled to a new trial on the ground of surprise. (Baylies N. Tr. & App. 531, and cases there cited; Messenger v. Fourth Nat. Bank of the City of New York, 6 Daly, 190; Soule v. Oosterhoudt, 20 Wkly. Dig. 67; Glendening v. Canary, 5 Daly, 489; affd., 64 N. Y. 636.) It is true that this rule is not inflexible, as where reliance is placed upon statements made by the defendant's counsel before the trial. Unfortunately for the plaintiff, however, nothing whatever is here shown to justify a departure from the general rule. It is true that the plaintiff's attorney was App. Div.] FIRST DEPARTMENT, OCTOBER TERM, 1898. informed by one of the defendants prior to the trial that their defense would be that the injuries sustained by the plaintiff were caused by the act of a furniture van and the child's own negligence. No statement, however, was made upon the subject of their relations with Hirsch, nor did they avowedly limit their defenses to those disclosed. The plaintiff's counsel was certainly not prevented by any statement of the defendants from at least proclaiming his surprise upon the trial, if, in fact, he was then surprised. As we have seen, he did not except to the ruling of the court; apparently, he submitted to it. He did not ask for time to look into the facts which he now says were such a complete surprise to him, or to make inquiry as to their truth. We are constrained, therefore, upon this record, to say that he has not brought himself within the rule to which reference has been made, nor within any known exception to that rule. It follows that the order denying the plaintiff's motion for a new trial was correct, and should be affirmed, with costs. The judgment must also be affirmed, with costs. VAN BRUNT, P. J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred. Judgment and order affirmed, with costs. EDWIN GOMEZ, JR., and Others, Appellants, v. HORATIO GOMEZ, Respondent. Testamentary trustee-action by certain of the cestuis que trustent to compel an accounting — costs—contribution should not be enforced from other cestuis que trustent who are not parties thereto - duty as to asserting title in a street - - when a renewal of a lease by a trustee to the detriment of the income of the life tenants is justified — omission of a trustee to advertise and employ real estate agents for ruinous buildings. Where, in an action brought by certain of several cestuis que trustent to compel an accounting by the defendant, as trustee under a will, which action proceeded wholly in the plaintiffs' interest, the other cestuis que trustent, who did not choose to become parties to the action, and did not participate in the benefits thereof, cannot be forced to contribute to the expenses of the action; and where it appears, upon appeal, that the plaintiffs have succeeded in surcharging the defendant's accounts to the extent of nearly a thousand dollars, an award of costs to him will be stricken out. FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. A trustee should not be held liable for not asserting title to land in an unestablished street bordering upon property to which he holds the title, or for compromising a dispute in reference thereto, with a party claiming to occupy it in hostility to the rights of the trust estate, instead of continuing the prosecution of an ejectment suit for its recovery, where such street has never had a moment of actual existence, and where, had the land been recovered, it is questionable whether it could have been made a source of revenue, inasmuch as it was set apart for street uses, and could not, therefore, be lawfully utilized in any manner that would diminish the quantum of light and air which it would furnish if retained as a street, and where the trustee has been advised by competent counsel not to press such action of ejectment to trial. A trustee will not be personally charged with damages on the ground that he has wastefully and improvidently granted a renewal of a lease, the obligation to renew which could have been avoided by the payment to the lessee of the value of improvements made upon the land, on the theory that the trustee could have bought the improvements at a low figure and then have leased the property at rents that would have added largely to the income of the estate, where it appears that the trustee had no money of the estate with which to purchase such improvements, and had, at the time (prior to the passage of chapter 275 of the Laws of 1882), no authority to mortgage the fee or even the trust estate for the purpose of buying the improvements. Semble, that, even if the trustee had had power to raise money upon mortgage for such a purpose, it is questionable whether he would have been justified in doing so, and thereby increasing the income of the holders of life interests at the expense of those who were to succeed to the fee of the trust estate. A trustee will not be held negligent to a degree that will fasten upon him liability for a loss, at best speculative, by reason of his not having secured a larger rent, in consequence of his omission to advertise and employ real estate agents for old buildings in a dilapidated, worn-out and irreparable condition, and occupied by a very low order of tenants, which buildings, although the rent was proportioned to their ruinous condition, were never vacant, it being improbable, in the lethargic condition of the market, that a tenant, able and willing to pay a larger rent and improve the property could have been found, and where the power to lease for a term of years was doubtful, APPEAL by the plaintiffs, Edwin Gomez, Jr., and others, from portions of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of March, 1898, upon the report of a referee appointed to take and state the account of the defendant as trustee under the last will and testament of Hetty Gomez, deceased. Hector M. Hitchings, for the appellants. Michael II. Cardozo and Edgar J. Nathan for the respondent. App. Div.] FIRST DEPARTMENT, OCTOBER TERM, 1898. We quite concur in the disposition of this case made by the learned referee, and in the reasons given therefor in his full and careful opinion. The only question which we think needs special consideration relates to the award of costs. The defendant is allowed the sum of $2,642.56 for his costs and extra allowance. The judgment directs that from this amount the sum of $968.63, ordered to be paid to the plaintiffs by the defendant, shall be deducted, and that the balance, together with the plaintiffs' costs, amounting to $951.06, shall be charged against the share of the estate held in trust for Edwin Gomez, Sr., the plaintiffs' father and assignor. By the interlocutory judgment, from which no appeal was taken, costs were awarded to the plaintiffs, and the question whether such costs should be paid out of the estate or by the defendant personally was left for future decision. We think that the trust estate referred to must be deemed to be that part of the whole trust estate belonging to the plaintiffs. This was the only estate before the court or subject to its decree. None of the other cestuis que trust made themselves parties to the action. It proceeded wholly in the plaintiffs' interest, the sum recovered from the defendant being awarded to them. The other cestuis que trust cannot be forced to contribute to the expenses of an action to which they did not choose to become parties, and in the benefits of which they have not participated. We agree with the referee that the defendant should not be compelled to pay these costs personally, and, hence, affirm that part of the judgment charging them against the plaintiffs' share. But we think that the award of costs to the defendant should be stricken out. The plaintiffs have succeeded in surcharging his accounts to the amount of nearly $1,000, and under such circumstances it would certainly be a hardship to allow him costs against the plaintiffs personally. Yet that is what is practically done when the costs are charged against their share of the estate. The judgment should be modified by striking out the award of costs to the defendant, and as so modified it should be affirmed, without costs of this appeal to either party. VAN BRUNT, P. J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred. FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. Judgment modified by striking out award of costs to defendant, and as so modified affirmed, without costs of appeal to either party. The following is the opinion of the referee referred to in the opinion of BARRETT, J.: GEORGE M. VAN HOESEN, Referee : Having been appointed by the interlocutory judgment, entered on June 1, 1892, in this action, referee: 1. To take and state the accounts of the defendant, Horatio Gomez, as testamentary trustee under the last will and testament of Hetty Gomez, deceased; 2. To take such testimony as might be offered by the parties relating to alleged losses of money by said trustee ; 3. To take such testimony as might be offered by the parties relating to the waste, mismanagement, improper conduct, improper expenditures by said trustee of moneys had and received by him to and for the use of the beneficiaries under the will of said Hetty Gomez, deceased, and not accounted for, and any other matter with which he may be chargeable; 4. To report the acts relating to said accounts and said alleged misconduct, with my opinion thereon; 5. To report whether, in my opinion, the defendant is a proper and suitable person to continue as trustee under the will of Hetty Gomez, or whether he should be removed; and 6. To report whether the expenses of the accounting by said trustee should be borne by the trustee individually or be paid out of the trust estate, and having performed, according to the best of my ability, the duties devolved upon me by said interlocutory judgment, I respectfully submit this my report of my proceedings in the premises. Before taking any testimony, I took the oath prescribed by section 1016 of the Code of Civil Procedure, which oath is annexed to a copy herewith submitted of said interlocutory judgment. At all the hearings before me the plaintiffs were represented by their counsel, Hector M. Hitchings, Esq., and the defendant was represented by his counsel, Messrs. Michael H. Cardozo and Edgar J. Nathan. Though the interlocutory judgment requires that such testimony |