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observed by parties, in invoking the equitable powers of the court, is that they must wait until their rights have been actually interfered with before they can enjoin another, from whom they anticipate injury. Guest v. City of Brooklyn, 69 N. Y. 512. To this rule, however, there are certain recognized exceptions:
"First. Where the proceeding in the subordinate tribunal will necessarily lead to a multiplicity of actions. Second. Where they lead, in their execution, to the commission of irreparable injury to the freehold. Third. Where the claim of the adverse party to the kind is valid upon the face of the instrument or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality.” Heywood V. City of Buffalo, 14 N. Y. 541.
We think this case comes clearly within at least two of these exceptions. The notice and order served by the commissioner were under section 105, of chapter 568, of the Laws of 1890, which reads as follows:
“Sec. 105. How Removable, and Liability for not Removing. The commissioner of highways shall serve upon the occupant or owner of lands adjoining that part of the highway within their town in which any obstruction or encroachment may exist, a rotice specifying the extent and location of such obstruction or encroachment, and directing such occupant or owner to remove the same within a specified time not more than sixty days from the service of the notice. If such owner or occupant shall neglect or refuse to remove such obstruction or encroachment within such time he shall forfeit to the town the sum of twenty-five dollars, ($25.00,) and the commissioner may remove such obstruction or encroachment at the expense of the town, which may be recovered by action, of such owner or occupant; or said commissioner may bring an action in any court of competent jurisdiction to compel such owner or occupant to remove such obstruction or encroachment. Actions by commissioners of highways as in this section provided, shall be in the name of the town.”
It will be seen, by a perusal of this section, that the commissioner determines, in the first instance, whether or not an encroachment exists upon the highway, and, upon such determination, serves the required notice and order. The consequence of the disobedience of such an order subjects the person charged with the encroachment to the hazard of being prosecuted for the penalty, or of having the commissioner, without further notice, remove the encroachment, or of being prosecuted, in an action in equity, to compel this removal.
It is probably true that in an action for the penalty, which is an action at law, the party charged with the encroachment could interpose a common-law defense, and thus try the question of the alleged encroachment; but if the commissioner saw fit to adopt the other method provided for in this section, and to summarily remove the encroachment, as he may do under this section, the party would be remediless, except such remedy as might be afforded in an action for trespass. Such a remedy would not be an adequate one, and afford adequate relief against the injury which might be inflicted, in the demolition or removal of the plaintiff's house. this section affords no opportunity to arrest or prevent the destruction of the plaintiff's property by the commissioner, no opportunity exists to try the legal rights of the parties, or the truth of the charge of encroachment, until the prosecution, and possibly effectual remedy, of an action of trespass, at law. We are clearly of
the opinion that, against such an invasion of the rights of the citizen, the court of equity may, in a proper case,-and, we think, in this,-interpose by injunction. Nor can the plaintiff be compelled to wait, and seek his remedy in a court of equity after the injury has been actually inflicted. The prima facie right of the commissioner to remove being established by his order, under this section, it would require some evidence on the part of the plaintiff to show that that right was improperly exercised in this case, and that the house which was charged to be an encrcachment was not located within the bounds of the public highway. This would bring this case within the third exception referred to in Heywood v. City of Buffalo, supra:
"Where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality.”
There is another equitable principle which would seem to authorize the maintenance of this action for the protection of the plaintiff. As we have seen, the order is prima facie evidence of the right of the commissioner to remove the obstruction, and that it would require some evidence on the part of the plaintiff to defend himself and his possession, from the operation of that order. That being so,—the order being a matter of record in the office of the town clerk, and constructive notice to all, as far as this highway is concerned, of its extent, and of this alleged encroachmentthe order would operate, it seems to us, as a cloud upon the plaintiff's title, which equity alone would have the power to remove. Scott v. Onderdonk, 14 N. Y. 9; Heywood v. City of Buffalo, supra; Ward v. Dewey, 16 N. Y. 519; Hatch v. City of Buffalo, 38 N. Y. 276; Allen v. City of Buffalo, 39 N. Y. 386; Crooke v. Andrews, 40 N. Y. 549; Newill v. Wheeler, 48 N. Y. 486. We are therefore clearly of the opinion that for the reason, and within the authori. ties, stated, this case is one proper for the equitable cognizance of this court. We think, therefore, the decision of the learned referee in this action was correct, and that the judgment must be affirmed. Judgment affirmed, with costs.
PUTNAM, J., (concurring.) I have entertained doubts as to whether the action can be maintained on the conditional threat of defendant to remove plaintiff's building after he had collected the penalty of $25. But I conclude that the very existence of the order, declaring plaintiff's house an encroachment on the highway, constituted a threat justifying the action. If the house was an encroachment, the duty devolved on defendant to remove it, and he could at any time, without a moment's warning, proceed to
Without considering the question as to whether the order constitutes a cloud on the title, I think there should be an affirmance of the judgment.
(3 Misc. Rep. 168.)
CASWELL V. SLATER. (Surrogate's Court, Westchester County, March, 1893.) CONSTRUCTION OF WILL-DEATH OF LEGATEE WITHOUT ISSUE.
Testatrix bequeathed a share of her estate in trust for the use of W. for life, and on his death such share was to go to his daughter L. "should she survive him.” The will further provided that “in the event, however, of the decease of the said E. without issue her surviving, subject to the trust hereby created I give" such share to certain other persons. Held, that the remainder after W.'s death was given to E. absolutely, subject to the limitation over only in the event of E.'s death during the lifetime of W.
Proceeding for the construction of the will of Ophelia P. Odell, deceased. The eleventh item of the will is as follows:
"Eleventh. I give, devise, and bequeath unto my executor hereinafter named one undivided cne-fourteenth part or portion of my estate, in trust, nevertheless, to collect, receive, and invest the same, and out of the rents and proceeds thereof to pily over the interest and income thereof to my nephew William P. Slater for and during the period of his natural life; and upon his decease I give, devise, and bequeath said one-fourteenth part or portion of iny said estilte unto Ella Slater, daughter of my said nephew William P. Slater, should she survive him; to have and to hold the same to her, her heirs and assigns, forever. In the event, however, of the decease of the said Ella Slater without issue hier surviving, subject to the trust hereby crezted I give, devise, and bequeath such undivided one-fourteenth part or portion unto my said nieces Enuna Caswell, Caroline Smith, and Ophelia Weeks, share and share alike; to have and to hold the same unto them and each of them, and to their heirs and assigns, forever."
Testatrix's niece Emma Caswell, mentioned in item 11 of the will, died after its execution, leaving a son, Fordyce B. Caswell, her surviving, whereupon testatrix executed a codicil to her will, item 5 of which is as follows:
"Fifth. In the event referred to in said eleventh item or clause of my said last will and testanient of the decease of Ella Slater, therein mentioned, ithout issue her surviving, I give, devise, and bequeath, subject to the trust by said eleventh item or claus created, the undivided fourteenth part or portion of my said estate referred to in said eleventh item or chiuse to said Fordyce B. Caswell, and my nieces Caroline Smith and Ophelia Weeks, 'in said eleventh item mentioned, share and share alike; to have and to hold the same unto them and each of them, and to their heirs and assigns, forever.”
Mitchell Levy, for the executors.
Calvin Frost, for Charles J. Smith, general guardian of Ella Slater.
Thomas J. Purdy, for Caroline Smith and others.
COFFIN, S. The question to be determined is whether the onefourteenth part of the estate of which William P. Slater had the use for life now belongs to his daughter, Ella, sometimes called Mary Ella, absolutely, or to the executors to hold until it shall be determined whether she shall die without issue; in other words, whether it shall be decree to be paid to her general guardian or
to be retained by the executors. Counsel have, in their briefs submitted, discussed the question, among other things, as to whether the time of the death of Ella Slater referred to her death with. out issue during the lifetime of the testatrix or subsequent thereto. The learned counsel for the general guardian has cited many authorities to sustain the affirmative of the proposition, and, among others, the cases of Livingston v. Greene, 52 N. Y. 118, and Quackenboss v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121, which appear to sustain that view. In behalf of the claim of Caroline Smith and others their counsel.has cited some decisions of courts of other states, to which access has not been had, as supporting that claim. Not much consideration has been given to this question, for the reason that the matter is determinable upon another ground, taken on behalf of the general guardian, which seems quite unanswerable. In construing wills it is well stated that the intention of the testator, when discoverable, must control. Here that intention, gathered from the will itself, appears to be perfectly plain. The use of the share is given to Ella's father for life, with remainder to her absolutely; but, should she die without issue pending the trust,in other words, while he was alive,—then to Caroline Smith and others, subject to the same trust. But Ella has not died without issue subject to the trust, nor can she, seeing that the trust no longer exists; so that the distribution of this fourteenth among the other three is impossible of accomplishment. It was given to Ella absolutely if she survived her father, the cestui que trust, but, in case she died without issue during his lifetime, it should go to the others at his death. But he is dead. The trust is ended.
Ella survives, and she takes the share absolutely. Such is in accordance with the plain intention of the testatrix. The decree will direct that the share be paid to her guardian on his filing the usual bond.
In re HATHAWAY'S ESTATE. In re PECK. In re CHAMPLIN.
(Surrogate's Court, Cortland County. July 15, 1893.) 1. JUDGMENT AGAINST ADMINISTRATOR-ISSUANCE OF EXECUTION.
Code Civil Proc. $ 1825, provides that an execution shall not issue against an administrator in his representative capacity, except on an order of the surrogate, specifying the sum to be collected. Section 2532 provides that such order is conclusive evidence that there are sufficient assets in the administrator's hands to satisfy the sum for which the order permits the execution to issue. Held that, where an administrator has accounted for all assets coming into his hands, paid them to creditors under direction of the surrogate, and been duly discharged on a final accounting, an order will not be granted permitting an execution to issue on a judgment rendered against him after such discharge on an indebtedness created
by deceased in his lifetime. 2. SAME-FRAUDULENT CONVEYANCE BY DECEDENT.
Even if it is necessary for an execution to issue and be returned unsatisfied, to enable the judgment creditor in such case to bring an action to set aside as fraudulent certain conveyances made by deceased, and to subject the land conveyed to the payment of his judgment, and the
application for the order is made solely for such purpose, the order cannot be made in the absence of a statute authorizing it for such special purpose.
Application by Platt Peck for an order permitting an execution to issue on a judgment in favor of petitioner against Riley Champlin, as administrator of the estate of Calvin L. Hathaway, deceased. Application denied.
Horace L. Bronson, for petitioner.
EGGLESTON, S. Calvin L. Hathaway, of Solon, Cortland county, N. Y., died August 15, 1885, intestate. Upon the 7th day of October of that year, Riley Champlin was appointed administrator of his estate, duly qualified, and entered upon the discharge of his duties as such administrator. May 6, 1891, the administrator, upon his application, had a final accounting before the surrogate, and was discharged from further duty or liability in the matter. At the time of the accounting, it appeared that the estate was insolvent, and, upon the final distribution of the assets of the estate, the same were paid upon certain judgments rendered against Hathaway in his lifetime, which judgments were entitled to a preference in payments. The majority of the creditors received nothing upon their claims. June 30, 1891, Platt Peck, the petitioner herein, obtained a judgment against Riley Champlin, as administrator of the estate, for the sum of $6,625.60, which judgment was duly docketed in the clerk's office of Cortland county. The judgment obtained against the administrator was for an indebtedness which was created by the intestate during his lifetime. Execution was never issued upon the judgment, and nothing has ever been paid upon the same. Upon the accounting before the surrogate, Peck, the petitioner, who was a creditor of the estate, having been duly cited, appeared with others, and filed objections to the account of the administrator; but subsequently he, with the others, withdrew the objections, and the accounting was had without objection, and a decree entered discharging the administrator from further duty or liability in the matter. The petitioner now asks for an order or leave to issue execution upon said judgment, alleging in his petition recovery of the judgment, and, upon his information and belief, that the administrator has in his possession or under his control personal property belonging to the estate, and also alleging that Hathaway, prior to the time of his death, had made fraudalent conveyances of his real estate to other persons for the purpose of cheating and defrauding his creditors, and that petitioner is desirous of bringing an action to set aside such alleged fraudulent conveyances and transfers of property; that he is advised and believes that an execution must issue and be returned unsatisfied upon the judgment, as a condition precedent to the bringing of an action in equity against the persons to whom it is alleged the fraudulent conveyances and transfers were made. Upon the return of the citation issued in this proceeding against the adminis