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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

this use was general over its system where glass of the saine size was used, and that the witness, who was in a position to know of these accidents, because he was called upon to make the repairs, in a period of eight years had never heard of any person or passengers being injured by the breaking of one of these glasses. He had known of their being broken by the action of the wind, and this appears to have been the only thing which their experience had warranted them in guarding against. This, it seems to us, brings the case within the rule so often asserted, that a carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected, and that its duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it, and it has been held that this rule is not confined to common carriers, but is appli. cable generally to negligence cases. (Dwyer v. Hills Brothers Co., 79 App. Div. 45, 46, and authorities there cited.) As a general rule, when an appliance or machine or structure, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessness. (Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136, 141.) In the absence of any evidence that any one had ever been injured by the use of double-thick window glass, under the circumstances disclosed by the evidence, and where the evidence is undisputed that similar glass had been used in the door where the injury occurred for two years, and upon the defendant's railroad system generally for a number of years, and that for a period of eight years one in a position to hear of such an accident if it had occurred, had never learned of such a case, it would seem that it was error to perinit the jury to speculate upon the question of the defendant's negligence. The case is well within the rule that where an accident is not the reasonable, natural and probable result of the situation which ought to have been foreseen by the defendant in the exercise of the degree of care exacted from a carrier of passengers, no liability follows. (Ayers v. Rochester Railway Co., 156 N. Y. 104, 108, and anthorities there cited.) So far as the evidence discloses the defendant may, in the exercise of a sound judgment, have chosen double-thick glass instead of plate glass for use in its doors, and even were it

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. established that plate glass was better, a mere error in judgment is not negligence. So far as the record discloses, there was no reason to anticipate that any one would be injured; the only purpose of the glass in the doors was to prevent collisions between persons using the same, or for lighting the inclosure, and the experience of the defendant warranted it only in anticipating the accidents which had previously befallen these doors. Within the station, where the results of an accident were not likely to be serious, and in cases where danger is not to be apprehended, if due and proper care is exercised by the passenger, the rule is well established that the owner is responsible only for the want of ordinary and reasonable care (McGrell v. Buffalo Office Building Co., 153 N. Y. 265, 271, and authorities there cited), and clearly the jury would not be justified in finding negligence in using double-thick glass in place of plate glass, where the evidence did not show that plate glass was better for the purpose than the glass actually used, or that there was any reason to anticipate that the accident complained of would, in the ordinary course of events, result. There was no evidence that it was customary to place guards over glasses used in swinging doors, or that such guards were necessary to the safety of passengers, so that the only question of the defendant's negligence was based upon the quality of glass used, without any evidence to show that plate glass was safer than the glass which was found in the door at the time of the accident.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

Priscilla LEVETT, Appellant, v. HORACE G. Polhemus and John

Crispe, Individually, and as Executors, etc., of Emma Crispe POLAEMUS, Deceased, and Others, Respondents, Impleaded with EDWARD T. CRISPE and Others, Appellants.

Action to compel executors to sell real estate and to account - when not maintainable

- complete relief in the Surrogate's Court questions raised by an answer not considered where the complaint is dismissed.

In an action brought by a legatee and devisee under a will to compel the execu

tors to sell certain land and to account for their administration of the estate, some of the defendants served answers in which they demanded the same relief as that sought in the complaint, while another one of the defendants demanded an interpretation of the will. The will conferred on the executors a discretionary power of sale, but provided that the executors should not be held responsible to any one for mistakes or errors of judgment, or other, or except

for actual, malfeasance in the performance of their duties as such executors." Hell, that as it did not appear that the delay in the sale of the real estate was

due to malfeasance or misconduct on the part of the executors, or that the plaintiff would suffer any injury from such delay, the action was not main

tainable so far as the plaintiff sought to compel a sale of the real estate; That it was not maintainable for an accounting, as the plaintiff could obtain

complete relief in that respect in the Surrogate's Court; That the court was justified in refusing to retain jurisdiction of the case for the

purpose of settling the collateral questions raised by the defendant asking for a construction of the will.

APPEAL by the plaintiff, Priscilla Levett, and by the defendants, Edward T. Crispe and others, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Queens on the 20th day of October, 1902, dismissing the plaintiff's complaint upon the opening.

0. B. Gould, for the plaintiff, appellant.

George P Breckenridge, for the appellants Crispe and others.

James Parker, for the respondent Horace G. Polhemus.

Charles J. McDermott, guardian ad litem, for the respondent Theodore Nelson Polhemus.

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. WOODWARD, J.:

The plaintiff, Priscilla Lerett, is a legatee and devisee under the last will and testament of Emma Crispe Polhemus, deceased, and brings this action to compel the executors of the will to sell certain land, and to account for their administration of the estate. It is conceded that all of the legatees and devisees under the will have been provided for as the will directs, except in respect to the proceeds of this real estate, which the plaintiff claims is not worth more than $3,500, and there is no suggestion that the defendants lave been guilty of any fraud or misconduct, except that it is alleged they have failed to agree as to the price of the property in dispnte, and that this has resulted in prejudice to the plaintiff for a period of several months. Several other persons who have been brought into the action as defendants, and who occupy the same relation to the premises that is held by the plaintiff, answer and demand the same relief as that sought in the complaint, and the defendant John Crispe, individually, demands an interpretation of the will. Bertha T. Hoage, one of the defendants, denies some of the material allegations of the complaint. Prior to the commencement of this action various orders had been granted, authorizing the sale of the premises in dispute, but owing to the fact that the defendant John Crispe had failed to comply with the same, the property had not been disposed of, although it seems reasonably certain that the same might have been sold for $10,000, less some taxes, water rates, etc., which had, through the neglect of the same defendant, become liens upon the premises. The action came on for trial at Special Term in September, 1902, and resulted in a dismissal of the complaint on motion of the defendant Horace G. Polhemus, on the plaintiff's opening. The appeal comes to this court.

The will of the late Emma Crispe Polhemus, which is made a part of the complaint, provides in its 12th clause that “no bond or other security be required of them, or either of them, for the performance of the duties herein before imposed upon them; and that neither they nor either of them shall be held responsible to any one for mistakes or errors of judgment, or other, or except for actual, malfeasance in the performance of their duties as such executors.” The complaint does not allege malfeasance on the part of any one, so that under the terms of the will there was no cause of

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

action stated against the executors, and the fact that some of the defendants may have asked for the construction of the will does not operate to give the complaint any greater vitality than it would have if no such pleadings were made on the part of the defendants. If the complaint does not state a good cause of action, if the plaintiff is without the right to maintain the action, then there is no reason for the introduction and settlement of collateral questions. The defendants are deprived of no rights; they stand in exactly the same position that they would have been in had the plaintiff not moved in the matter, and they have no legal grievance because the plaintiff has failed to maintain her action. In considering this appeal, therefore, we are concerned only with the case presented by the plaintiff, and we are of opinion that the learned court at Special Term properly disposed of the case, which was one peculiarly within the jurisdiction of the Surrogate's Court, and should have been submitted to that tribunal for adjustment. The will of Emma Crispe Polhemus gave to her executors the power to sell the real estate, or to mortgage the same, and generally to deal with it in whatever manner should be determined upon by them in carrying out its purposes ; it was a discre

a tionary power, and they were not to be answerable to any one for “mistakes or errors of judgment, or other, or except for actual, malfeasance;" and the mere allegation of the complaint, filed December 6, 1901, a year and nine months from the issuing of the letters testamentary, “that this plaintiff is, and for months last (past) has been, prejudiced by the failure of said executors to agree upon a sum for which said lands and premises should be sold pursuant to the terms of said last will and codicil,” does not present a case for a court of equity. In the absence of malfeasance, the plaintiff has no cause of action against the executors. The plaintiff comes into her rights through the will, which she sets up as the foundation of her cause of action, and this will makes the transfer of the property to depend upon the exercise of the powers vested in the executors, who are answerable only for malfeasance. Clearly, in the absence of malfeasance or misconduct which deprived the plaintiff of substantial rights, there is no occasion for a court of equity to interfere and make, in effect, a new will for the testatrix. There is nothing

APP. Diy, -Vol. LXXXVI. 32

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