first day by an inspector, who examined it as it was taken from the boat, does not constitute an acceptance of the residue. Second Division, Nov. 26, 1889. Scheu v. Benedict. Opinion by Haight, J.

CONSTITUTIONAL LAW-ACT LICENSING SHEDS ON PIERS IN EAST RIVER.-(1) Since the Legislature possesses the absolute power of eminent domain over public property, subject only to the restriction that its action shall be in the direction of public utility, Laws of New York of 1875, chapter 249, conferring authority ou the department of docks of New York city to license the erection and maintenance of sheds by private persons on the public piers of that city for the protection of property received and discharged thereat, is constitutional; the main purpose of the act being in furtherance of the commercial interests of New York city, and it being found as a fact that it is necessary for piers to be covered and inclosed in order that property to be received and discharged by the occupants may be protected from loss and injury. (2) Since the permission to shed a pier, under the act, amounts to turning the public pier into a private one for the time, the fact that the shed erected by the licensee is concededly exclusive and permanent in its character does not warrant its removal. (3) Laws of New York of 1883, chapter 435, creates an exception to the general power vested in the dock department under Laws of 1875, chapter 249, by providing that it shall not be law. ful to interfere with the free public use of any pier in East river which has "heretofore" been used for the

loading of sailing vessels regularly employed in foreign commerce, etc. Held, that the exception did not include a pier which before 1864 was much used by this class of sailing vessels, but which since 1870 has only occasionally been used by them, and not at all in the four or five years preceding the commencement of an action to remove sheds therefrom, since the word "heretofore," in its common acceptation, means

"hitherto," ""down to this time," and does not convey the idea of comprehending any remote time. In the case of People v. Mallory, 46 How. Pr. 281, that court had pronounced a permit issued by the commissioners of the dock department to the defendant to erect a shed on an East river pier to have been without lawful authority in those officers to grant. Such structures were held to be in violation of the existing laws; and in the case of Kingsland v. Mayor, 110 N. Y. 569, we have recently approved of the conclusion which the court reached in People v. Mallory. But through the enactment of chapter 249 of the Laws of 1875, the dock department became possessed of the authority, which it previously lacked, and the many instances of its exercise of a supposed authority were ratified and legalized. Its permission to shed the piers had not been a protection to parties as against the public, for the reason that the power to withdraw from the public use what was, in legal contemplation, a public highway, had not been delegated to it. Such a power could only reside in and proceed from the people of the State, who in their right of sovereignty, possess the original and ultimate property in and to all lands, and to the navigable waters, within the jurisdiction of the State. The right to exercise the sovereign power of the people was vested in the legislative body, whose acts are supreme when confined within the limits fixed by the Constitution of the State. An eminent dominion over all property in the State is an incident of the sovereign power. Where its exercise affects the property of the private citizen, it is restricted by the Constitution only in the feature that compensation must be made for its taking. The right of the State to take the property however is an absolute and inherent one. It is an attribute of political sovereignty, and the constitutional provision only operates upon the mode of exercising the right. If au

exercise of this power, as for instance, as in this case, by permitting a use and an appropriation of a public pier to some other or quasi private use in the way proposed by this defendant, affects some existing or natural right of the public to the use of a highway, I cannot find in the organic law of the State, nor can I find upon principle, any restriction upon the legislative act other than that its action shall be in the direction of public utility. It seems to me self-evident as restrictions interposed by the fundamental law, may a proposition that the sovereign power, subject to the be exercised with respect to the public, as well as the private rights of citizens. That seems to follow logically, as the necessary understanding of the governed, of the scope and design of the political dominion of ciple underlying all forms of government, that for ends the State; and it finds reason and support in the prinof the public utility and good all other ends should yield. It is said in this case that the use of the pier, jus publica, and cannot be impaired by legislation; being a public or natural highway, was in the people as

and our recent decision in Bedlow v. Dock Co., 112 N. Y. 274, is cited in that connection. But in that opinion the feature of public utility, which I have adverted to here, is distinctly recognized; for Ruger, C. J., proving such waters in the interest of commerce unsays: "The power of regulating, controlling and imdoubtedly exists. The right therefore of the city to erect structures in the navigable waters of the State must necessarily remain subject to the sovereign authority over such highways." In my opinion the argument cannot be maintained that, in its delegation to the dock department of the power to authorize the shedding of a wharf or pier for private purposes, the Legislature has abridged a public right, aud therefore overstepped the limits of its powers. I think its action was in the direct line of a sound public policy. What it authorized to be done is in the general interests of that municipality, and though a private interest may be benefited, that is an incident. The main feature and purpose are the recognition and furtherance of the commercial interests and needs of the community. The use of the piers and bulkheads for commercial purposes connected with shipping is an essential advantage to the inhabitants of the city of New York; great water front is demanded in the exercise of politi and whatever best promotes the beneficial use of its cal wisdom. It was found as a fact in this case that it was necessary for wharves and piers to be covered and inclosed, in order that property to be received and discharged by railroad companies, or other occupants should be protected from loss and injury, and that all piers and wharves used for that purpose are shedded. This is an obvious fact also from the language of the act of 1875, the first section of which is a distinct recognition and ratification of an existing usage of shedding piers and wharves. Independent of finding and language however I think the legislative grant of power to the municipal body to permit the erection of structures upon these piers, etc., for the purpose of protection to property received and discharged, would be a justifiable act of public policy, because of the evident reasons for such legislation, and of the evident public utility of such a measure. Nov. 26, 1889. People v. Baltimore & O. R. Co. Opinion by Gray, J. Reversing 3 N. Y. Supp, 29.

EQUITABLE ASSIGNMENT - PLEDGE.-(1) U. placed an account against Z. in the hands of plaintiff, an attorney, under a contract that plaintiff should prosecute the claim, and should release U. from a debt which he owed plaintiff, and that in consideration therefor plaintiff should have one-third of the money, property or securities realized therefrom, whether received through settlement or otherwise, the terms of settlement to be discretionary with U. Plaintiff brought

suit on the account, pending which U. assigned it to defendant, whom he owed, and who was ignorant of plaintiff's contract, expressly stipulating that it was intended as collateral security. Held, that the contract was an equitable assignment of one-third of the claim against Z. to plaintiff, and that by the assignment defendant became pledgee only to the extent of U.'s title. (2) Thereafter a compromise was made by defendant U., and Z., without plaintiff's knowledge, by which defendant released U., and U. released Z. from their respective debts upon the delivery to defendant by Z., on the order of U., of certain non-negotiable bonds. Held, that defendant received the bonds, by force of the assignment, in place of the claim which was thereby pledged; and not being a purchaser thereof, he could not hold against plaintiff the latter's one-third interest therein. Nov. 26, 1889. Fairbanks v. Sargent. Opinion by Finch, J. Reversing 4 N. Y. Supp. 162.

have been ineffectual, then the failure of the executor, acting in good faith, to take them does not render him liable as for a devastavit. Clack v. Holland, 19 Beav. 262, 271. It is true in the case in Wendell, above referred to, it is stated that if the debts are not collected within a reasonable time after the issuing of letters, either by personal application or by suit, the executor is responsible for such neglect. But it is seen that the court refers to such debts as could have been thus collected, not to those where a suit would have been unavailing. The onus is upon the executor to show a fair reason why he did not commence proceedings to collect a debt, and it is only necessary in the first instance for him who insists upon a devastavit to show the existence of a debt, and that the executor has taken no steps to collect it. The presumption is that it could have been collected, as the usual course is for men to pay their debts, and solvency is presumed until the contrary is shown. This is what was decided in Stiles v. Guy, 16 Sim. 230; 39 Eng. Ch. 229; the vice-chancellor remarking that "those who seek to exonerate themselves from a debt due from a third person ought to prove that that person could not have paid the debt. If a debt is due, the law always presumes, until the contrary is shown, that the debtor can pay it. Insolvency cannot be presumed." The same principle is upheld in Harrington v. Keteltas, 92 N. Y. 40, where this court held that the executor, hearing of a debt due the estate, was bound to active diligence for its collection, and that he could not wait for a request from the distributees. The existence of the debt be

EXECUTORS -PAYMENT OF LEGACY BY NOTE.- (1) Where a legatee receives the individual notes of an executor of the estate, and notes of a firm of which the executor was a member, in payment of a portion of her legacy, and the surrogate on the executor's accounting finds that the legacy has been paid, an action for the amount of the notes as for money had and received to the legatee's use cannot be maintained against the executor individually; as, there having been no original individual indebtedness due from the executor, and the adjudication of the surrogate that the legacy had been paid being conclusive, the only right of action is upon the notes. (2) Where such action is tried on the theory that defendant, while being an executor, became personally liable for the pay-garded the neglect to prosecute not only as an omisment of the legacy, the judgment for plaintiff cannot be sustained on the theory that the action was on the notes, though the notes were offered in evidence, there being no count upon the notes. Nov. 26, 1889. Camp v. Smith. Opinion by Ruger, C. J. Affirming 1 N. Y. Supp. 372.

ADMINISTRATORS

OF

EXECUTORS AND RIGHTS CREDITORS-PAYMENT OF LEGACIES.-(1) An executor knew that his testator owned certain bonds shortly before his death. When, as executor, he sought to obtain possession of them, the residuary legatee, who had the custody of testator's papers when he died, repeatedly denied that she had them, but finally, at the end of six months, coufessed to him that she had had them all the time, and had recently sold them, claiming them as a gift from testator. During this time the executor had in his possession sufficient funds of the estate to pay all its known debts; and neither he nor the residuary legatee knew any thing of plaintiff's claim, which was for a deficiency in a mortgage foreclosed after the completion of the advertisement for creditors. On seeking the advice of counsel, after being apprised of plaintiff's claim, the executor was told that he had no case against the residuary legatee for the recovery of the bonds or their proceeds. Held, that the executor was not personally liable to plaintiff for failure to sue for the bonds. There is no pretense that the defendant did not act in entire and perfect good faith in the matter, nor can there be any question of the bona fides of his counsel. An executor who has acted in good faith, and intended fairly and fully to discharge his duty, will not be charged in this manner, if such intentions have been directed by a reasonable judgment; while if the property of the decedent has been wasted through his carelessness and want of proper attention, he will be liable. This rule was laid down by Mr. Justice Nelson in Schultz v. Pulver, 11 Wend. 363, 366, where the administrator was held liable in a very plain case. If there is reasonable ground for considering that the legal steps to be taken to collect assets by the executor would

ing proved, the duty of active diligence was enjoined upon the executor. In that case, aud upon the facts therein appearing, the court, per Danforth, J., re

sion, but as a willful default amounting to positive collusion. "Active vigilance" is a relative term, and what it is depends upon the facts appearing in each case. As to where the onus lies in making proof of the facts, there can be but little question. A debt being proved, the presumption is that it is collectible, as solvency, and not the contrary, is to be presumed. But when the onus, being shifted to the executor, is met by proof on his part of the absolute, irretrievable, and hopeless insolvency of the debtor, does any rule of active vigilance demand the institution of legal proceedings by the executor against such insolvent debtor? Does active diligence require the commencement of an action to obtain possession of property which the executor claims belongs to the estate, although at the same time he does not know how he can prove that the property does belong to it, and he is also advised by his counsel, in good faith, that he cannot make such proof, and he really believes it? All the facts being in, the question arising for determination is whether the conduct of the executor has been guided by good faith, reasonable judgment, and an intention to fairly and fully discharge his duty. If so, it cannot be that he should still be held liable for a devastavit. No duty of active vigilance would makeit necessary to sue an absolute and hopeless insolvent, nor to commence an action when he was entirely ignorant as to where to find the proof to maintain it. In this case we cannot see that the executor, under all the facts, was guilty of such a lack of diligence as should charge him with the value of these bonds. The result of a suit was entirely too doubtful to require us to hold the executor liable for not instituting it, especially when, in good faith, and presumably after a full statement of all the facts, his counsel advised him that he had no case, and he believed it and acted accordingly. (2) Under 2 Revised Statutes of New York, page 89, section 39, providing, that if a claim against decedents' estate is not presented within six months after publication of notice of granting letters, the executor shall not be liable to the creditor for moneys paid out in

should be confined to his bed, or his room, or that he should die within a certain limited time, are not es sential circumstances to support such a gift. It is a matter within the experience and common knowledge of all, and one requiring no evidence to show, that paralysis is the symptom of a disease which does terminate human life. Its strokes are known to cause to the victim a loss of bodily functions or senses, and point to the existence of some grave ailment of the bodily system. It is quite a matter of common supposition or belief that the third stroke is followed by death. I has occurred from disease indicated by paralysis, a think that we are bound to presume that, when death transaction such as we have here, and which took place after the individual had been admonished by two pa ralytic strokes, was conducted with a view to death. It is unreasonable to say that the donor, in so acting, was not under the apprehension of a recurrence of the paralysis. Nov. 26, 1889. Williams v. Guile. Opinion by Gray, J. Affirming 46 Hun, 645.

GIFTS-INTER VIVOS-CAUSA MORTIS.-(1) A donor seventy years of age, who had suffered two strokes of paralysis, executed an instrument in the form of a bill of sale of his life insurance policy to his niece, and delivered the paper to his attorney, telling him to give it to her, in case any thing happened to him. In about six weeks he died from a third stroke of paralysis, and the paper was delivered according to instructions. Held, that there was no gift inter vivos, as the donor had not relinquished control of his property. The elements which go to make up a valid executed gift were incomplete here. There was absent the essential feature of such a delivery as divested the donor of all possession and dominion over the subject of the gift. If the present right to the property is not parted with, so as to vest the title to it in the donee, there is no valid executed gift. Young v. Young, 80 N. Y. 430; Jackson v. Railroad Co., 88 id. 520. As Ruggles, J., said in Harris v. Clark, 3 N. Y., at page 113, "the contract must have been executed. The thing given must be put into the hands of the donee, or placed within his power, by delivery of the means of obtaining it." (2) But it will be presumed that the gift was made under an apprehension of the recurrence of paralysis, and the gift will be upheld as a gift causa mortis. Such a gift Judge Story describes as amphibious-between a gift inter vivos and a legacy. Eq. Jur., § 606a. He says it differs from a gift inter vivos in several respects, in which it resembles a legacy, and he mentions, as one, that "it is ambulatory, incomplete, and revocable during the donor's life-time." And Leach, V. C., in Gardner v. Parker, 3 Madd. 184, said that wherever a gift is in prospect of death there is an implied condition that it is to be held only in the happening of that event. The distinction between such a gift and any other is that though delivery is an essential feature in each, in the former that peculiar character of revocability inheres during the donor's life. Cottenham, L. C., said, in Edwards v. Jones, 1 Mylne & C. 226: "A party making donatio mortis causa does not part with the whole interest, save only in a certain event, and it is of the essence of such a gift that it shall not otherwise take effect. A donatio mortis causa leaves the whole title in the donor, unless the event occurs which is to divest him." Judge Story said of such gifts (Eq. Jur., § 607a) that the courts have "not considered the interest as completely vested by the gift, but that it is so vested in the donee that the donee has a right to call on a court of equity for its aid." The title of the donee only becomes absolute at the donor's death, when, by relation, it is deemed to take effect from the time of the delivery. 1 Wms. Ex'rs, 552. Until the donor's death the condition is implied that be may al-ity to enter upon the lands of another, and that a per

ways revoke it, and, in the case of an illness, if he lives, the thing shall be restored to him. It is not necessary that the donor should declare the condition. The presence therefore in this instrument of transfer here, of a clause giving power to revoke, indicates nothing more than an expression of what was implied in the law in a gift causa mortis. It is not necessary that the donor should have beeu in extremis; only that his death, when it occurred, should be from the disorder which afflicted him and menaced his life. Grymes v. Hone, 49 N. Y. 20. The rule of law, in such cases of gifts made in prospect of death, demands, for their validity, that the proof shall show the existence of a bodily disorder or of an illness which imperils the donor's life, and which eventually terminates it. But that he

LATERAL SUPPORT-LICENSES-REVOCATION.-Laws of New York of 1882, chapter 410, section 474, provides that whenever excavations on any lot in New York city shall be intended to be carried more than ten feet below the curb, and there is any party or other wall wholly or partly on adjoining land, and standing on or near the boundary line of such lot, "the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times from the commence ment to the completion of such excavations, at his own expense, preserve such wall from injury, and so sup port the same * * * that it shall remain as stable as before the excavations were commenced." Held, that where the owner of adjoining land has granted a license, under this statute, to persons making excava tions, to enter thereon, and they have removed half of a party-wall, and inserted timbers to support the licensor's building, the removal of which would allow the building to fall, the licensees have the right to enter on the licensor's premises as much as necessary to build up a new wall, to support the licensor's building, to the extent required at the time of a revocation of the license, before they can be compelled to remove the supports. We have carefully examined the authorities upon which the court and the respondents rely, and we have no question to make in reference to the correctness of the rule as stated in those cases: but we do question their application to the case under consideration. In the case of Murdock v. Railroad Co., 73 N. Y. 579, the license was given by the owner of the land to the railroad company to occupy the lands for its road. It was not a grant of a permanent interest in the realty, but was simply a license to enter, and was revocable at pleasure. So in the case of Mum. ford v. Whitney, 15 Wend. 380. It was a parol agreement that a party may abut and erect a dam upon the lands of another, for the purpose of creating a water power. It was held that a license was a mere author

manent interest in land could be transferred only by writing. In these cases a permanent right to occupy real estate was claimed under a license, in the absence of any written transfer or permit; but in the case under consideration the license, if given, was made pursuant to the statute to which we have referred, and was authorized by it. When given, the defendants were required, "at all times from the commencement until the completion of such excavations, at his own expense, to preserve such wall from injury, and so support the same, by a proper foundation, that it shall remain as stable as before the excavations were commenced." Here we have express statutory provisions specifying what the defendants must do upon receiving the license, and it appears to us that at least,

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