as used in the printed part. If the defendant intended to attach the condition in question to machinery used in a mill, it should have said so. In the condition relating to the fall of a building it is provided that "this policy, if covering thereon, or on property therein, shall thereupon immediately cease." So the clause prohibiting the use of certain inflammable substances provides that if they are stored, kept or used in any building on which, or on the contents of which, there is any insurance," the policy shall be void. Thus it appears that in certain instances, by the use of language that no one could mistake, the insurer made its intent clear that a certain condition should apply both to real and personal property. If it intended that the condition under consideration should thus apply, why did it not say so? We think that this condition refers to a mill or manufactory in the sense only of a building used for milling or manufacturing, and that it has no application to the personal property covered by the policy. In Halpin v. Insurance Co., 23 N. E. Rep. 482, the policy covered the building only, and provided that if said building should become vacant or unoccupied the insurance should cease. We gave effect to that condition, which was clear and unequivocal, by reversing the judgment that the plaintiff had recovered. In another case arising out of the same fire, and decided during the present term, the policy covered personal property only, described as contained in said building; but it provided that "if the above-mentioned premises," referring to the building, should become vacant or unoccupied, the policy should be void. Halpin v. Insurance Co., ante. In that case also we were required by the clear and unmistakable terms of the contract, and the facts as disclosed by the evidence, to reverse the judgment that had been rendered in favor of the plaintiff. But we are called upon in the case at bar to enforce a contract that differs materially from either of the others named, because it fails to attach any condition that was shown to have been violated, to the property covered by the policy. Second Division, March 21, 1890. Halpin v. Insurance Company of North America. Opinion by Vann, J. Affirming 45 Hun, 591.

LANDLORD AND TENANT- LEASE COVENANT TO BUILD-RENEWAL.-(1) A lease contained a covenant by the lessees to erect a dwelling-house of a certain description, and provided that if they should erect such a dwelling-house, and it should be standing on the premises at the end of the term, and if the lessees should faithfully perform all the covenants on their part, then the lessor would grant a new lease or pay for the building. By a subsequent agreement the lessor released the lessees from their obligation to build, it being expressly provided that the "lease shall in all its parts be acted upon by the respective parties as though such covenant to build had not been made and inserted therein." Held, that the right to build during the term was preserved, but the erection of a building authorized by the lease, and the performance of the lessees' covenants, were conditions precedent to the right to maintain an action to enforce the lessor's covenant to renew or pay for the building. Smith v. St. Philip's Church, 107 N. Y. 610; Bank v. Mitchell, 73 id. 406; Pike v. Butler, 4 id. 360; Glacius v. Black, 50 id. 145; Conger v. Duryea, 90 id. 394; Tayl. Laudl. & Ten., § 497. (2) The acceptance by the lessor of rent, after knowledge of the erection of a building not authorized by the lease, was not a waiver of the agreement to erect a dwelling-house as a consideration for the renewal of the lease. Murray v. Harway, 56 N. Y. McIntosh v. 337. Second Division, March 18, 1890. Rector, etc., of St. Phillip's Church. Opinion by Brown, J. Affirming 54 N. Y. Super. Ct. 291.

SPECIFIC PERFORMANCE JUDICIAL DISCRETION.Specific performance of a contract by a railroad com

pany with a land-owner to erect a station at a certain point will be denied by a court of equity, in the exer cise of a sound discretion, where it appears that the place where the station is demanded is on the side of a steep mountain, in a sparsely settled district, and approached by a steep grade; that the station could only be constructed at a considerable expense; and that the public travel would be delayed by the stoppage of the trains, and the public convenience would not be promoted. Clarke v. Railroad Co., 18 Barb. 350; Trustees v. Thacher, 87 N. Y. 311-317: Murdfeldt v. Railway Co., 102 id. 703; Day v. Hunt, 112 id. 191-195. Second Division, March 18, 1890. Conger v. New York, W. S. & B. R. Co. Opinion by Haight, J. Affirming 45 Hun, 296.

Judgment affirmed with costs-Laura T. H. Varick, appellant, v. Second National Bank of Norwich, Connecticut, respondent.-Judgment affirmed with costs - National Bank of Granville, appellant, v. Jacob Cohn and others, respondents.- -Judgment affirmed with costs Frank Brown, respondent, v. Twentythird Street Railway Company, appellant. Judg ment affirmed with costs-James Bannon, respondent, v. Bleecker Street and Fulton Ferry Railroad Company, appellant.-Order affirmed with costs-Richard V. Harnett, respondent, v. Robert E. Westcott, appelJant. Judgment affirmed with costs-James Brown, respondent, v. Rome, Watertown and Ogdensburg Railroad Company, appellant.-Judgment affirmed with costs-Wm. Campbell, respondent, v. N. Y. C. & H. R. R. Co., appellant. -- Judgment affirmed with costsJohn Fahey, administrator, etc., respondent, v. N. Y. C. & H. R. R. Co., appellant.- Judgment affirmed with costs-Henry C. Shoemaker, respondent, v. N. Y. C. & H. R. R. Co., appellant.-Judgment affirmed with costs- Adolph Simis, Jr., respondent, v. Dwight M. Hodge and others, appellants.- Judgment affirmed with costs-John Hughes, respondent, v. Abraham A. Andrus and another, appellants.-Judgment affirmed with costs Edward N. Dickerson and another, respondents, v. Simon Schener and others, appellants.- -Order reversed, new trial granted, costs to abide event - Byron M. Schultz, respondent, V. Philip Griffin, appellant.-Order atfirmed with costs -In re petition of Sigmund Freust to vacate, etc.— Motion to transfer from the Second Division denied with costs-William F. Eaton and others, respondents, V. Alleghany Gas Company (Limited) and others, appellants. Motion for re-argument denied with costs -In re petition of the Institution of the Deaf and Dumb.

-

SECOND DIVISION.

The following decisions were handed down by the Second Division of the Court of Appeals on Friday, May 2, 1890:

- Motion Elnathan

Motion to amend remittitur denied with $10 costsMotion to Charles E. Hooley v. George Elliott.amend remittitur denied Metropolitan Elevated Railroad v. Sylvester H. Kneeland, et al.for re-argument denied with $10 costs Sweet and another v. Dorilus Morrison et al.—Judg ment reversed, new trial granted, with costs to abide event-William H. O'Dell, respondent, v. New York Central Railroad, appellant. Judgment affirmed with costs-Joseph Engleman, respondent, v. Adolph Langhoist et al., appellants; Henry A. Blake, respondent, v. Isabella Corbitt, appellant.

The Second Division adjourned until June 2, 1890, to meet at Saratoga,

The Albany Law Journal.

ALBANY, MAY 17, 1890.

CURRENT TOPICS.

THE prevailing opinion of the United States Su

preme Court in the liquor package case is published in full in this journal this week, and next week we shall probably publish the dissenting opinion. This is one of the most important decisions promulgated in many years. It affords plenty of warrant to the "prohibitionists" for arguing that it is a serious if not fatal blow to State prohibition, for under it there seems to be nothing in the way of carrying on a lively business in selling alcoholic liquors in a prohibition State so long as the sale is confined to original packages brought in from another State, whether the packages are great or small, hogsheads or single bottles. Therefore it is earnestly hoped that the bill now pending in Congress to prevent this evasion may prevail. It does not seem an unconstitutional or impolitic exercise of the police power that citizens of other States should be compelled to regulate their trading with regard and obedience to the law of the particular State. We are not advocates of prohibition, at present, because it seems to us rather impracticable under State laws, but it is reasonable that the citizens of non-prohibition States should not be encouraged nor permitted to violate the law of a prohibition State under the theory of Federal authority. We therefore believe that the passage of the measure pending in Congress would be a right step toward the recognition of State rights, a just act of comity and a recognition of the highest morality.

It seems that the question of the wife's liability for rent of a house hired by and leased to the husband alone, which arose in the Illinois case on which we recently commented, has also arisen in Iowa, and was there decided to the contrary at the trial, but is now pending on appeal to the Supreme Court. Messrs. Ainsworth & Hobson, of West Union, attorneys for the appellant, inform us that the action was brought under the statute which provides that "the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them," etc., and also inform us that there is substantially the same statute in Illinois. This of course presents a different phase, for our remarks were based upon the representation of the newspaper that "in Illinois a wife's estate is not liable for her husband's debts." Yet even under this statute the matter seems not to be free from doubt. Our correspondents' brief shows Iowa decisions that within the phrase "family expenses come a piano, a cook-stove, an organ, a sewing machine, a lady's gold watch and chain, a ring, and that a reaping-machine and a plow VOL. 41 No. 20.

are not embraced. If the husband had bought groceries, and the seller had charged them to husband and wife, doubtless he could have held both or either, but when he has entered into a contract of lease with the husband alone a different and an interesting question is presented. But we will not decide it just yet.

The question of the right of the wife in this State to sue alone for injuries to her person or character, and of the liability of the husband for her torts, so much litigated during the last year, is at length settled by an act of the last Legislature, providing that "a married woman shall have a right of action for injuries to her property, injuries to her person or character, and injuries arising out of the marital relation in all cases in which an unmarried woman or a husband now has a right of action by law;" and that " a husband shall not be liable in damages for his wife's wrongful or tortious acts, nor for injuries to person, property or the marital relation, caused by the acts of his wife, unless the said acts were done by actual coercion or instigation of the husband; and such coercion or instigation must be proved in the same manner as any other fact is required to be proved; but in all cases embraced in this section the wife shall be personally liable for her wrongful or tortious acts."

It would not greatly surprise us if Governor Hill should bring out his veto stamp and put it down hard on that bill enacted by our Legislature, in its last agonies, directing the courts in New York city to give the aqueduet contractors a preference for their pending causes on the court calendars. This looks rather "special." It seems to us extremely unwise. If it should be approved, we shall probably have all sorts of suitors, with public claims, or even with private claims, running to the Legislature chances," and the chances having turned unfavorfor preference. Those contractors "took their able, let them abide the result, and not delay and prejudice other suitors, who have been knocking at the door much longer, and whose cases are just as important to them as these claims are to the contractors. If there is any particular equity in such cases, let there be a general law applicable in all such cases and in every part of the State.

Governor Hill recommends that the power now vested by the fundamental law in legislative bodies to decide on the qualifications of their members should be taken away from them and vested in the courts of law. We cannot agree with him. One very sufficient reason is that the courts are too busy, and that decisions would be too much delayed. Another good reason is that it would inevitably subject the judges to partisan misconstruction and abuse and hurt their influence. It is a good practice to have our judges as little mixed up with political matters as practicable, and to protect them against the possibility of suspicion. And then

in the operation of its street railway; that both companies were entitled to the use of the street; and that as the plaintiff could protect itself against the injurious effects of the greater volume of electricity required by the defendant, the latter should not be denied such use. But as to who should bear the expense of protection was not decided. The court, Landon, J., said: "The plaintiff bases its challenge upon the fact, that in 1862, electricity as a propeller of railway cars, was unknown, and hence not within the intention of the Legislature. But the legislators of that day were not ignorant of the inventive and experimental activity of the age; and had they intended to grant to the defendant the right to use any power except steam, which subsequent invention or experiment might demonstrate to be most beneficial to the company and to the public, the language employed would have been apt for the purpose. We therefore think the terms and intent of the act embrace electricity as a motive power. By the grant of the State the plaintiff lawfully uses electricity for telephonic purposes, and the defendant lawfully uses it for railway propulsion, and each company has its respective rights and privileges along the same streets and highways. As the public grant vests in each company franchises and privileges for unlike occupations, the grant to one is not necessarily repugnant to the grant to the other, nor in derogation of it unless it is impossible for the one to co-exist upon the same streets and highways with the other. The grant of public franchises and privileges by the State is strictly construed, and hence, as between claimants under different grants, unless more is expressly granted, no more passes than is reasonably necessary for the beneficial enjoyment of the grant. People, ex rel. Third Ave. R. Co., v. Newton, 112 N. Y. 396. The claim of exclusive privileges will not be allowed when not expressly conferred. Syracuse Water Co. v. City of Syracuse, 26 N. Y. St. Rep. 364. ** It is plain that if these grants can be so construed as to permit both companies to occupy the same streets beneficially to themselves and to the public, such construction should be adopted. To accomplish this each company should adopt, upon equitable terms, such reasonable methods and safeguards as shall most prevent interference with the other or injury to itself. Each grant therefore as against the necessary requirements of the other has no greater extent than is reasonably necessary for its beneficial enjoyment. * * * Clearly if there are two methods open to the plaintiff, one exclusive of the defendant and the other not, and both equally serviceable and practicable, the latter should be adopted. It remains to consider whether the railway company ought to do more or otherwise than it has done to prevent electrical interference with the telephone company, and whether the telephone company can reasonably be required to adopt other and approved methods to protect itself from such electrical interference. Upon the evidence before us, it seems to be true that the single-trolley system adopted by the railway company is the best now

*

known, regard being had to mechanical, electrical and financial considerations, but without regard to electrical interference with the telephone, which uses the grounded or earth circuit instead of a metallic circuit. The plaintiff does not use the metallic circuit. It is much cheaper to construct the metallic circuit for the telephone than for the railway. It appears to be shown by the evidence that the metallic circuit, if employed by the telephone company, would obviate the electrical interference of which plaintiff complains. We should certainly, in the interest of the public, as well as that of the railway company, permit the latter to construct its road upon the most approved system. Other methods for the protection of the telephone are suggested. But it does not appear that any other is equally effective to prevent disturbances. To construct the metallic circuit for the telephone would be expensive, but how expensive does not appear. Assuming then that the adoption of a metallic circuit for the telephone is the most reasonable method of obviating the injury from electrical interference, the question will arise whether the telephone or railway company ought to bear the expense. This is an equity action in which, upon the trial, the court will have jurisdiction to administer all the relief which the nature of the case and the facts demand, and to frame its judgment in such terms as shall compel obedience by both parties. Whoever seeks equity must do it, and hence the court, in its equitable mandate against the defendant, can impose equitable conditions upon the plaintiff. In one sense the injury complained of is neither irreparable nor necessarily continuous, since it can be removed by incurring the necessary expense. But if the plaintiff shall incur all the expense without compulsion or legal duress, it might be regarded as voluntarily incurring it, and hence could not recover it from defendant, and would suffer to that extent irreparable loss. The present methods of the plaintiff are all it requires if the defendant should not interpose its destructive agency. It may be that the defendant ought to bear the expense of a change of plan. That expense would be less and the advantages to the defendant greater than if it were compelled to adopt the doubletrolley system. It may be that plaintiff's obligation to maintain a metallic circuit after it shall have been established will be the proper measure of its share of the burden. It may also be that priority in time gives the better equity. The defendant may lawfully enter upon the street, but the condition may be implied that it shall also indemnify others already rightfully there against the additional expense which its entry subjects them to. But we cannot now well decide who will ultimately be liable for this expense, or whether equity requires its apportionment. This matter was less fully considered upon the argument than the electrical and other important features of this somewhat novel case. We cannot place the burden of this expense in the first instance upon the defendant, since the plaintiff ought not to yield control of its lines to the