The only serious question seems to be whether, considering defendants have no legal right, the plaintiff has such an interest as entitles him to ask the interposition of a court of equity to prevent the defendants from doing an unauthorized act, which will cause pain and distress to him and the other relations, and for which a court of law can afford no relief. The infliction of mental pain and distress by the wrongful or unauthorized act of another is recog nized as giving a cause of action in many cases. In cases of libel and slander, where a person is injured by the negligent act of ancther, in fact, in all actions of tort where the wrongful act of another causes an injury, a recovery is allowed for mental pain and distress and disgrace caused by such wrongful act; so, also, in an action for a breach of contract of marriage. The law thus recognizes that the infliction of such distress and disgrace, caused by the wrongful act of another, is a ground for a recovery against the wrongdoer. Does not plaintiff occupy this position? He is a nephew and a stepson of Mrs. Schuyler. He alleges, and the other relatives of Mrs. Schuyler allege, that the erection of a statue by these defendants would cause pain, and be considered by them a disgrace, and this injury would be permanent; for it is not intended that such a statue should be destroyed at the end of a week or a month or a year, but it is likely to last for at least as long as the lives of any of the living relatives of Mrs. Schuyler. It is evident that it would be impossible to estimate the damages that would be sustained from such a continuing act, not only at the time the statue was exhibited, but in the future, possibly to be enhanced by the use that would be made of the statute in the future. It seems to me that this is in the nature of a continuing wrong that has caused and will cause damage which, from the nature of things, it would be impossible to estimate; and thus the case is brought directly within a recognized head of equitable jurisdiction, and the court is authorized to enjoin the continuance of the act. That the making and exhibition of the statue or representation of a deceased person in many instances is calculated to cause pain and distress and disgrace is clear. Thus, to make a wax image of a deceased individual, leaving behind him sensitive children and other relatives, and exhibit it as a part of an exhibition of criminals and others noted for their brutal characteristics, would clearly cause pain and disgrace to the living; and, if such an exhibition could be enjoined, can the court say that another exhibition of a representation of a deceased parent would not, because the court was of the opinion that the proposed representation should not, (although it was satisfied that it did, as a matter of fact,) cause the children pain? Clearly not. Once establish the right to an injunction against such an exhibition in any case, and the question is whether the proposed exhibition does, as a fact, give them pain,-does cause them disgrace. It is also to be considered that, as before stated, the statue is to be permanent in its nature, and the use to which it will in the future be put cannot be foretold. What may now be a comparatively unobjectionable use may in the future be painful and disgraceful. I

think it clear, therefore, that the act of the defendants in proposing to have a statue of Mrs. Schuyler made and exhibited was unauthorized; that such act has caused and would cause the plaintiff and the other relatives of Mrs. Schuyler pain, and be considered by them a disgrace, and it was therefore an unauthorized act; that the injury caused was permanent, in its nature continuing, and it was impossible to ascertain the damage that had been caused, or that a continuance of the unauthorized act would cause.

The question as to whether the public, as represented by the state or nation, have not the right to erect a statue in honor of one of its citizens who has held public office, or who has rendered service to the state, is not presented. The state or nation has a right to call on its citizens to do many acts and sacrifice many interests that a voluntary association of citizens cannot ask. A citizen must fight the battles of the state; must contribute his money to its support; must submit his person and property to its control to prevent the spread of contagious disease; must allow the state to take his property for public use. But it would hardly be claimed even by these defendants that they could call on the plaintiff to thus subordinate his private interests to satisfy their desire for public approbation or for pecuniary advantage; and it may well be that where the state desires to thus honor one of its distinguished soldiers, sailors, or civil servants, and present to future generations a model to be followed, the private wishes of the relatives of such a person must then give way to the public good. But these defendants do not occupy that position, and can hardly claim that their wish has the force of action by the state or nation.

It is not claimed that this action of the defendants is a libel. It is an unauthorized act, which has caused and will in the future cause damage. It is unlike a libel, because that is a simple publication for which the damage can be ascertained. In this case the injury is continuing, and it is impossible, as before stated, to ascertain what the damage will be in the future. Nor does this act of these defendants come within the provision of the state constitution which secures to each citizen the right to freely speak, write, and publish his sentiments on all subjects. The defendants can freely speak, write, and publish their sentiments as to Mrs. Schuyler without exhibiting her statue to the public. It seems to me clear, therefore, that, applying well-settled principles of equity, the plaintiff is entitled to the judgment asked for, and that to refuse plaintiff such relief would be to admit that a wrong which causes severe injury may be done to an individual, and yet the law can afford no relief. This would be contrary to a fundamental maxim of our equity jurisprudence, as it is always in such a case that a court of equity interferes, and, adapting its relief to the exigency of each case, protects the right, and prevents the wrong. Plaintiff is therefore entitled to judgment, with costs.

(70 Hun, 598.)

SCHUYLER v. CURTIS et al.

(Supreme Court, General Term, First Department. June 30, 1893.)

Appeal from special term, New York county.

Action by Philip Schuyler against Ernest Curtis and others for an injunction to restrain defendants from making and exhibiting a statue of Mrs. George L. Schuyler, deceased. From a judgment for plaintiffs (24 N. Y. Supp. 509) defendants appeal. Affirmed.

Argued before O'BRIEN, FOLLETT, and PARKER, JJ.

James B. Ludlow, for appellants.

Charles M. Demond, for respondent.

PER CURIAM. No opinion. Judgment affirmed, without costs.

HULSE v. NEW YORK, O. & W. R. CO.

(Supreme Court, General Term, Second Department. July 28, 1893.)

1. NEGLIGENCE-WHAT CONSTITUTES-LOADING RAILROAD CARS.

A railroad company is not guilty of negligence because a car load of lumber is not so piled on the car in loading that it will not fall over at the sides while being unloaded, on removal of the stakes and cross-ties which held it securely while being transported.

2. SAME-DUTY TO PROVIDE AGAINST ACCIDENTS.

Where a railroad company delivers a car load of lumber to the owner, it owes no duty to an employe of his contractor to provide against the danger of accident by the falling of the lumber while such employe is engaged, by direction of his employer, in unloading it from the car. 3. SAME-CONTRIBUTORY NEGLIGENCE.

Where persons engaged in unloading a car of lumber remove the stakes and cross-ties which support the piles of lumber on the car, so that it falls and kills one of them, deceased is guilty of contributory negligence.

Appeal from circuit court, Orange county.

Action by Jane Ann Hulse, administratrix of the estate of Charles Hulse, deceased, against the New York, Ontario & Western Railroad Company, to recover damages for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Plaintiff alleged in her complaint that on or about the 27th day of February, 1892, the said Charles Hulse, while in the act of unloading some lumber on one of defendant's cars, on the track of defendant, near the creamery of one D. W. Berry, and while adjusting a plank along the side of said car for the purpose of unloading same, the planks which were on the car were so unskillfully and negligently loaded that the same slid or tipped over on the body of the plaintiff, crushing him to the ground and killing him; and that the lumber was so negligently loaded as aforesaid by the defendant, its agents or employes. On the trial it appeared that the deceased was in the employ of Terwilliger, Berry's contractor, and was assisting in unloading the car, which was a flat car. It was contended by plaintiff that it was defendant's duty to have so loaded the car that the piles of lumber would not have fallen when the stakes and cross-ties were removed, and that a failure to do so was negligence; while defendant contended that no such duty rested on it; that it owed no duty whatever to Terwilliger's employes while they were engaged in unloading the timber; and that it was negligence on the part of Terwilliger and his employes to remove the stakes and cross-ties which supported the piles on the car.

JJ.

Argued before BARNARD, P. J., and DYKMAN and PRATT,

William F. O'Neill, for appellant.
William Vanamee, for respondent.

BARNARD, P. J. The facts in this case are substantially uncontradicted. The defendant company received a car load of lumber, consigned to one of its engineers. One Berry was erecting a creamery on the company's lands at his own expense. The .lumber was delivered to Berry and his builder, one Terwilliger. They took possession of the car load of lumber, and Terwilliger, who was building by contract with Berry, proceeded to unload the lumber from the car. It was held in place by four stakes, two on each side, and these stakes were fastened on the top by cross pieces. Terwilliger commenced to unload by removing all these stakes and cross pieces, both sides. The man on the top of the lumber-one of Terwilliger's men-removed these stakes, and the lumber fell on the plaintiff's intestate, causing his death. The lumber was piled in separate piles in the car, and there was nothing to hold one pile to the other piles when the stakes were removed; and this is the only fact on which the plaintiff alleges negligence in the company. The ncnsuit was property granted. The lumber was piled safely, and was securely bound together until the contractor destroyed this security. The company were

not bound to so load its cars that no accident could happen in unloading it after the stakes were removed. The piling was plainly to be secured, and it was the height of imprudence not to notice the fact that a pile of boards as high as this was piled was liable to fall over if it was left without support. The company owed no duty to the deceased. Terwilliger was the contractor, and he must respond to him. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. Rep. 755; McAlpin v. Powell, 70 N. Y. 126. The case is not like Thomas v. Henges, 131 N. Y. 453, 30 N. E. Rep. 238. There the defendant owed a duty to keep a derrick on a dock in safe condition, and he failed to do so. It was a dock free for those who had business to moor at and unload by means of this derrick. The derrick was left unsafe, and broke, and the owner was held liable to the party injured, although he had not any particular interest in the load which was being delivered at the dock. No negligence was proven, and the deceased is not shown to be free from contributory negligence, even if the owner owed him a duty in respect to the unloading of the car. Judgment and order denying a new trial affirmed, with costs. All concur.

PEOPLE ex rel. DOUGLAS v. VAN NOSTRAND, Supervisor, et al. (Supreme Court, General Term, Second Department. July 28, 1893.) TAXATION-REDUCING ASSESSMENT.

An assessment at $60,000 of relator's land, which the year before was assessed at $42,000, will not be reduced on the ground that it is proporv.24 N.Y.s.no.6—33

tionately higher than other land in the town, where it appears that it had increased in value about 50 per cent. since the previous assessment, and that the parcels with which relator compared his land were assessed higher than relator's land in proportion to the values.

Appeal from special term, Queens county.

Certiorari by William P. Douglas to review the action of David L. Van Nostrand, as supervisor, Frederick H. Whiting, as town clerk, and Henry O. Ditmis, Oliver Crooks, and James M. Higgins, as assessors, of the town of Flushing, in assessing relator's land at $60,000. The assessment was sustained, and relator appeals.. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Howard A. Sperry, for appellant.

Benjamin W. Downing, for respondents.

BARNARD, P. J. The relator for some six years has been assessed for his lands in the town of Flushing, lying on Little Neck bay, and consisting of about 175 acres of land, at the sum of $42,750. In 1891 the assessors raised the value as a basis of assessment to $60,000. This writ is brought to reduce the assessment on the ground that the assessment is unequal, and proportionately higher than that on other real estate in the town. The relator's witnesses testify that the value of the property is from $80,000 to $105,000. The defendants produce evidence that the value is $175,000, possibly $200,000. The proof shows that the property has risen in value 50 per cent. between the assessment of 1890 and the one complained of in 1891. The relator selected certain parcels of land on the assessor's books as a basis for the allegation of irregularity. The proof shows that these pieces are assessed higher in proportion to the values than the property of relator is. The proof entirely fails to show any reason for the reduction of the assessment. The order dismissing the writ should therefore be affirmed, with $10 costs, besides disbursements.

SAGE et al. v. CULVER et al.

(Supreme Court, General Term, Second Department. July 28, 1893.)

1. CORPORATIONS-ACTION BY STOCKHOLDERS-PLEADING.

In an action by stockholders of a railroad company for an accounting, the complaint alleged that defendants were president and treasurer of the company, and had always controlled it; that the stock amounted to $500,000, and the railroad was mortgaged for $500,000; that afterwards part of the line was sold for $420,000; that defendants appropriated $250,000 of the company's money to pay themselves for alleged advances for improvements which were not made until several years later; that the company has apparently done a prosperous business, but has never paid any dividends, though it has been in operation about 18 years; and that plaintiffs were refused any information about the affairs of the company, and were not allowed to see the books. Held, that the complaint charged defendants with misapplication of the funds of the company, and therefore stated a cause of action.