App. Div.] First Department, February, 1906. and other machinery for the purpose of generating electricity to be supplied by it to the general public for lighting and other purposes, and that the defendant had so constructed and conducted the property and constructed and operated the machinery as to discharge upon the premises of the plaintiff quantities of soot, cinders, ashes and noisome gases, unpleasant odors, steam and water condensing from steam, and had also made and produced in the operation of its machinery loud, disagreeable and incessant noises, and a very great jar and vibration which were transmitted into and through the premises of the plaintiff. The defendant admits that in the year 1887 it became possessed of and still is in the exclusive possession of this property and has built upon it a building and placed therein steam boilers, steam engines, steam pipes, dynamos, electrical machines, and other machinery for the purpose of generating electricity to be supplied by it to the general public for lighting and other purposes. There was evidence that the building occupied by the plaintiff was affected by the continual vibration caused by the defendant's occupa tion of its property; that the chandeliers and windows continuously shook and rattled; that everything in the house felt as if it were pulsing in some way; that the windows had to be plugged up; and that the vibration of the building continued day and night; that after the construction of the defendant's powerhouse there was a change in the atmospheric conditions surrounding the house; it became smoky and soot fell in the yard and came in the windows during all the time that the defendant conducted its operations; that cinders and ashes damaged the curtains when the windows were open, and the inside of the house had to be cleaned continuously to keep it in order; that immediately after the erection of the defendant's building the noise and vibration commenced and continued, growing worse from year to year as the defendant increased its power, to February, 1900, when the plaintiff left the premises; that the plaintiff leased these premises, paying $3,000 a year rent, conducting a boarding house thereon; that the house accommodated about twenty-five people and was continuously well filled up to the time the powerhouse was built in 1888; that after the defendant constructed its powerhouse the average number of boarders fell from twenty-five to about twenty, and further decreased down to First Department, February, 1906. [Vol. 111. 1903, when the plaintiff left the premises, to about fifteen; that there was a decrease in the receipts after the powerhouse was built 'from twenty-five to fifty dollars a week, and that the receipts constantly decreased; that during the time of this decrease there was no change in the cost of maintaining the house for servants, lighting and incidental expenses or rent, other than the cost of provisions. These conditions having been proved, the question as to the amount of the damage sustained by the plaintiff in consequence of the nuisance was a question for the jury, and its verdict was sustained by the evidence. There is no serious question as to rulings upon evidence. The charge was fair and no exception to it requires consideration. It follows that the judgment and order appealed from should be affirmed, with costs. O'BRIEN, P. J., LAUGHLIN, CLARKE and HOUGHTON, JJ., concurred. Judgment and order affirmed, with costs. HENRY E. FOX, Respondent, v. ISAAC DAVIDSON, Appellant. First Department, February 9, 1906. Mechanic's lien - damages - when interest not recoverable in action to foreclose lien. When in an action to foreclose a mechanic's lien certain work has been left undone by the contractor, the cost of completing which affects the amount of plaintiff's recovery, his claim is not liquidated and an allowance of interest on his recovery is not proper. APPEAL by the defendant, Isaac Davidson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1905, upon the decision of the court rendered after a trial at the New York Special Term. Henry A. Forster, for the appellant. Edmund L. Mooney, for the respondent. App. Div.] First Department, February, 1906. This is an action to foreclose a mechanic's lien. It is said to have been before this court in one phase or another six times, and attention is drawn to three opinions on appeal herein (Fox v. Davidson, 36 App. Div. 159; 40 id. 620; Davidson v. Fox, 65 id. 262). The law of the case under the amended complaint is well settled. We do not deem it important on this appeal to review either the facts or the law on the inain issues for the reason that the trial involved the application of facts found to the settled principles of law with respect to the right to recover in such an action when full and substantial performance has been waived or prevented by the defendant, and the excuse for nonperformance has been properly pleaded, and where the lien as filed was excessive but the claim was not willfully exaggerated. We have considered all of the points presented by the appellant, and have reached the conclusion that the learned trial justice properly decided the issues in all respects, except in allowing a recovery for interest. In his amended complaint plaintiff demanded judgment for $7,355 principal and interest thereon. His recovery was for only $5,484.90. The amount of the plaintiff's claim depended upon, among other things, the reasonable value of certain work, labor and material embraced in the contract but left unperformed by the contractor. This required proof both as to the items of work not done and the fair value of performing the same according to the contract. The precise amount due to the plaintiff was neither fixed nor could it be ascertained by a mere mathematical calculation; and, therefore, it cannot be said that the claim was liquidated and drew interest. (Excelsior Terra Cotta Co. v. Harde, 90 App. Div. 4; affd., 181 N. Y. 11.) It follows that the judgment should be modified by reducing the recovery by $2,594.34, the amount of interest allowed, and as so modified affirmed, without costs. O'BRIEN, P. J., INGRAHAM, CLARKE and HOUGHTON, JJ., concurred. Judgment modified as directed in opinion and as modified affirmed, without costs. Settle order on notice, First Department, February, 1906. [Vol. 111. In the Matter of the Estate of SOLOMON W. ASHHEIM, Deceased. AARON COHN, as Executor, etc., of SOLOMON W. ASHIRIм, Deceased, Appellant; SAUL W. WOLFENSTEIN and DAVID WOLFENSTEIN, Respondents. First Department, February 9, 1906. Executors - when executor cannot avail himself of Statute of Limitations on an accounting. An executor in possession of trust funds which he has failed to turn over to a trustee named in the will cannot set up the Statute of Limitations in a proceeding by the beneficiaries to compel him to account. The statute does not commence to run in favor of an executor until he openly repudiates the trust and asserts and exercises individual ownership over the property, and the question as to whether the statute has run will not be decided until after an accounting. APPEAL by Aaron Cohn, as executor, etc., of Solomon W. Ashheim, deceased, from a decree of the Surrogate's Court of the county of New York, entered in said Surrogate's Court on the 1st day of November, 1905, directing him to file an accounting of his proceedings as such executor. Sol. A. Cohn, for the appellant. John De Witt Warner, for the respondents. LAUGHLIN, J.: The letters testamentary were issued to the appellant on the 25th day of October, 1884, and they have not been revoked. The executor filed no inventory and he has never accounted. By a codicil duly admitted to probate with the will, the testator gave the sum of $48,000 to the United States Trust Company of the city of New York, "in trust to invest the same and to receive the income and interest accruing thereon and to apply such income and interest to the use of " his sister Jeanette during her life, and on her decease he directed that said trust fund be distributed among such of her children as survived her and then the living issue of any deceased child, "to be divided between them per stirpes and not per capita." The proceeding for the accounting was instituted on the 6th day of September, 1905, by two surviving children of a deceased child of said Jeanette Cohn, who are together entitled to receive one-eighth of App. Div.] First Department, February, 1906. said fund. The life beneficiary of the trust fund is still living. The moving papers show that the estate that came into the hands of the executor was more than sufficient to pay all debts, expenses, bequests and legacies, including the trust fund of $48,000 to the trust company, but that the executor has failed, neglected and refused to pay over to the trust company the said sum of $48,000, and has held, controlled and managed, and still holds, controls and manages, the said fund contrary to the terms and provisions of the codicil. On the return day of the citation the executor filed an answer alleging "that this proceeding was commenced after the expiration of seven years, and after the expiration of ten years from the grant of letters to this respondent," but not denying any of the facts set forth in the moving papers. It is strenuously urged that as the executor was not a trustee in the strict sense of the term he has obtained individually, by the mere lapse of time, good title to this property that came into his hands as executor under a commission from the court by which he was required to account therefor, and that the Statute of Limitations is a bar to the proceeding. This court has frequently held that the Statute of Limitations does not commence to run in favor of a trustee until he openly repudiates the trust and asserts and exercises individual ownership over the trust property. (Matter of Irvin, 68 App. Div. 158; Matter of Jones, 51 id. 420.) We have also in the interest of honesty extended the rule by analogy to the case of executors who are trustees in a sense, even though they be not, strictly speaking, trustees; and we have established the rule that unless the facts, upon which the running of the Statute of Limitations depends, are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is had. (Matter of Irvin, supra; Matter of Meyer, 98 App. Div. 7; affd., 181 N. Y. 553.) In these cases we reviewed the principal authorities upon which the appellant relies, and it is not necessary to distinguish them again. Here the Statute of Limitations may or may not be a bar. Many material facts essential to a correct decision of the question are not disclosed. The executor relies on the mere lapse APP. DIV.-VOL. CXI. 12 |