diminished by interference with known water courses, or by excavations which withdrew water from the springs by percolation or prevented its reaching them. There the whole of the land retained by the grantor was made servient to the grantee's water supply; here a right in a particular spring only was granted. There the acts of the grantor were in derogation of the grant,-interfered with the very right granted; here the grantor disclaims any right or intent to interfere with the right granted, and the findings and the evidence show that he did not in

The principles of law applicable to this case are not obscure or difficult. The defedant had no right to interfere with the plaintiff's spring, to his detriment, no right i deprive him of the water granted in the agreement of 1852, and this, upon the facts found and the evidence appearing in the case, he did not do. The plaintiff had no right to dig down into the earth, and drain the water from spring C. He had no right to dig lower than was necessary to conveniently take the water from his spring, to wit, the water flowing from the crevice in the rock. In digging lower in the defendant's soil he became a trespasser, and the defendant bad the right to fill in the excavation thus made. The facts not only are against the plaintiff, but the authorities cited by bis learned counsel do not aid him. He seems to place much reliance on these: Manufacturing Co. v. Veghte, 69 N. Y. 16, and Huntington v. Asher, 96 N. Y. 604. In the former case the defendant conveyed by warranty deed to plaintiff certain premises upon which was situated a cheese factory, “during the time it shall be used for manu

facturing cheese therein." Aiso the use of the water for the purpose of such manufac ture, as then conducted, from springs on other lands of defendant, not conveyed, with the right to enter thereon to construct and repair the pipes for conducting the water, and the right, in case the water from the springs should prove insufficient for the business at the factory, to go upon such lands to dig other springs and conact other water courses to the factory. Defendant reserved the right to use water in a specified way and for a specified purpose, but it was provided that he should not use it so as to unnecessarily interfere with the use of the water at the factory. After the conveyance defendant unnecessarily made excavations and constructions upon his lands which had the effect to materially diminish the supply of water from the spring, and to interrupt the business of the factory, which acts were persisted in after their effect had become apparent. The action was to recover damages, and to restrain defendant from diverting the water, and it was held that defendant's acts were in derogation of his grant; that he was precluded thereby from doing any act on his own land which should divert or diminish the supply of water flowing, at the time of the grant, from the spring to the factory; and that it was immaterial whether the supply was

in derogation of his grant. The two cases are radically different. In the case of Huntington v. Asher, the familiar principle of law that the grant of an easement carries with it whatever is essential to its enjoyment was applied to the facts of that case. Here the plaintiff had the right to enter upon the defendant's land, and repair his pipe, and to dig out and keep in repair his spring, so that he could con veniently and usefully take the water therefrom. But he had no right to dig more than was necessary for that purpose, and certainly not for the purpose of taking water not belonging to the spring granted. An authority more nearly touching this case is Bliss v. Greeley, 45 N. Y. 671, where it was held that a limited and specific grant of the right to dig and stone up a certain spring, and conduct the water therefrom through the grantor's land by a specified pipe to the grantee's house, with covenants of warranty, did not render the entire premises servient to the easement, and that the grantor might in such a case lawfully sink another spring, but 27 feet distant, although the effect was to render the first one useless. Further discussion is not necessary. The facts as we are bound to take them are adverse to the plaintiff, and the law applied to those facts justified the judgment rendered at the special term. The order of the general term should therefore be reversed, and the judgment of the special term affirmed, with costs. All concur, except MAYNARD, J., not voting.

NELSON V. RUSSELL et al. (Court of Appeals of New York. Oct. 4, 1892.) CONSTRUCTION OF WILL-VESTED REMAINDER,

Testator devised his two daughters two lots for "their natural lives," and "from and after" their decease he gave one of the lots to the two children of his deceased son, "to be divided equally between them and their heirs, share and share alike, the child or children of a deceased child taking the share which his, her, or their parent would have taken if living." Held, that the two grandchildren, having sur vived testator, took a vested remainder; it be ing intended only that their issue should be substituted for them in case of their death be fore testator. 16 N. Y. Supp. 395, reversed.

Appeal from supreme court, general term, first department.

Action by Jennie Nelson against James Russell and others. From a judgment of the general term for plaintiff, on an agreed statement of facts. (16 N. Y. Supp. 395,) defendants appeal. Reversed.

Thos. F. Magner, for appellants. John F. McFarland, for respondent.

ANDREWS, J. The determination of this appeal depends upon the question whether, under the will of David Barry, his grandchildren, James and Ellen Barry, took, on the death of the testator, a vested remainder in fee in the premises No. 358 Cherry street, in the city of New York. It is claimed in behalf of the plaintiff, the pur. chaser of the premises under a contract with Bridget Russell, the daughter of the testator, who took a life estate under the will, and the two grandchildren named, that the remainder was contingent, and that in case of the death of the two grandchildren during the life tenancy, or of either of them, leaving issue, such issue would take as purchasers the share which would have gone to the parent if living. Upon this ground it is insisted the title tendered was defective. The controversy turns upon the true construction of the third paragraph of the will, which is as follows: "I give and devise unto my be. loved daughters, Catharine Barry and Bridget Russell, all my real property in the city of New York, and known as 'Numbers 356 and 358 Cherry Street,' and the rents, issues, and profits thereof, for and during the term of their natural lives; and from and after the decease of my said daughters, Catharine Barry and Bridget Russell, and each of them, I give and bequeath the said premises number 356 Cherry street to James Russell, the son of my said daughter Bridget Russell; and upon the like events I give and bequeath the said premises number 358 Cherry street to James Barry and Ellen Barry, the children of my son Michael Barry, now deceased; to be divided equally between them and their heirs, share and share alike, the child or children of a deceased child taking the share which his, her, or their parent would have taken if living." We are of opinion that by the settled rules of construction the two grandchildren, James Barry and Ellen Barry, who survived the testator, took upon his death a vested remainder in fee in the premises in question, and that the provision for their issue was by way of substitution in case of the death of the parent during the life of the testator. The issue were to take in place of the parent if the parent should die before the testator. Much stress is laid upon the words "from and after the decease of my said daughters," immediately preceding the words of gift of the remainder, as indicating an intention to postpone the vesting until the happening of that event. But the authorities are quite uniform that the words "from and after," used in a gift of a remainder following a life estate, do not afford sufficient ground in themselves for adjudging that a remainder is contingent, and not vested; and, unless their meaning is enlarged by the context, they are regarded as defining the time of enjoyment simply, and not of vesting the title. Moore v. Lyons, 25 Wend. 118; Livingston v. Greene, 52 N. Y. 118; Rose v. Hill, 3 Burrows, 1882; Doe v. Prigg, 8 Barn. & C. 231. The presumption is that a testator intends that his dispositions are to take effect either in v.31N.E.no.22-64

enjoyment or interest at the date of his death, and, unless the language of the will by fair construction make his gifts contingent, they will be regarded as vested. Words of survivorship and gifts over on the death of the primary beneficiary are construed, unless a contrary intention appears, as relating to the death of the testator. Vanderzee v. Slingerland, 103 N. Y. 55, 8 N. E. Rep. 247; In re New York, L. & W. Ry. Co., 105 N. Y. 92, 11 N. E. Rep. 492. There is nothing, so far as we can discover, on the face of the will, aside from the words "from and after, to give any color to the construction that the vesting of the remainder was postponed beyond the death of the testator. Nor is there even the apparent injustice which sometimes results from the rule of construction to which we have adverted. The son of the testator, the father of the grandchildren, James and Ellen Barry, to whom the remainder was given, had died before the testator, and there could be no disinheritance of subsequently born issue. The gift was to the grandchildren "and their heirs." Under the construction of the will claimed by the plaintiff, they might never derive any benefit under the will. We think the present judgment cannot be maintained without departing from settled rules of construction, which have become landmarks of property. Judgment reversed, and judgment ordered for the defendants on the argued case. All concur.

PEOPLE ex rel. LOWER V. DONOVAN et al. (Court of Appeals of New York. Oct. 4, 1892.) MANDAMUS-JURISDICTION-JUDGE AT CHAMBERS.

99

Code Civil Proc. § 2068, provides that, "except special provision therefor is otherwise made in this article, a writ of mandamus can be granted only at a special term of the court.' Section 2069 provides when the writ may be granted at general term, and contains the only provision in the article which permits any tribunal other than the special term to grant the writ. Held, that a judge of the first judicial district had no authority to grant a writ of mandamus at chambers, even if an application for a writ is a motion, within the meaning of Code Civil Proc. §§ 768, 770, which respectively define a motion, and provide that "in the first judicial district a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits." Gray, J., dissenting. 18 N. Y. Supp. 501, reversed.

Appeal from supreme court, general term, first department.

Application for a peremptory mandamus on the relation of Horace M. Lower against Timothy J. Donovan and others. From an order of the general term, (18 N. Y. Supp. 501,) affirming an order of the special term, punishing them for contempt, defendants appeal. Reversed.

Henry Grasse, for appellants. David Leventritt and Chas. H. Knox, for respond

ent.

ANDREWS, J. On the 3d day of November, 1891, the day of the general election in this state, the Honorable A. R. LAWRENCE, one of the justices of the supreme court, upon application made to him at his chambers in the city of New York, in behalf of

the relator, a duly-qualified elector of the seventh election district of the second assembly district of that city, made an order requiring the inspectors in that election district to show cause before him at the courthouse in said city, at 3 o'clock P. M. of that day, why a writ of peremptory mandamus should not be issued, commanding and requiring them to permit the relator to take the disability oath provided in the election law, and, upon taking the oath, to permit him to retire with a person of his selection to one of the booths and compartments provided in said election district, for the purpose of preparing his ballot, and to accept, receive, and deposit the ballot when prepared, etc. The affidavit upon which the application was made set out certain facts which, in the opinion of the learned justice, entitled the relator to this relief. The order to show cause was served on Donovan and the other inspectors within the time limited by the order, but they did not appear on its return, and thereupon, due proof of the service of the order having been made, and of other facts, the justice issued a peremptory writ, following the order to show cause, and commanding the inspectors to do and permit the things therein stated. The peremptory writ was served on the inspectors before the closing of the polls, and there is evidence tending to show that they refused to obey it. Subsequently application was made to the court at special term to punish the inspectors for contempt | in disobeying the writ, and the proceedings resulted in an order adjudging the defendant Donovan guilty of contempt, and imposing upon him a fine of $250 and 10 days' imprisonment as a punishment for his misconduct. The order was affirmed on appeal to the general term, and the present appeal is from the order of affirmance.

The order made by the special term is challenged on the ground that Mr. Justice LAWRENCE, sitting at chambers, and not as a court, had no jurisdiction to issue the mandamus for the disobedience of which the order punishing the defendant for contempt was made. If this point is well taken, it disposes of the case, and the orders of the special and general terms must be reversed; for it is a clear proposition that an order made by a court or judge in a proceeding of which the tribunal or officer had no jurisdiction, and which is not merely irregular or erroneous, is not a lawful mandate, and disobedience thereto cannot be punished as a contempt. Code Civil Proc. § 8; 3 Amer. & Eng. Enc. Law, p. 788, and cases cited. The power to issue the writ of mandamus was, at common law, lodged exclusively in the court of king's bench, because of the general superintendence it exercised over all inferior jurisdictione, and, unless conferred by statute, could be exercised by no other court in the realm. It was one of the prerogative writs, and, if any trace is to be found of an attempt by any other court to exercise the jurisdiction in the absence of a special statute conferring the authority, it was in the nature of a usurpation. Awdley v. Joy, Poph. 175; 2 Bl. Comm. 110: Mos. Mand. 16; People v. Green, 58 N. Y. 296. The jurisdiction resided in the

court, and not in the individual judges; and the writ was issued in term, and not in vacation. In colonial times the supreme court of the colony of New York, by the ordinances of 1699 and 1704, was invested with all the powers of the courts of king's bench, common pleas, and exchequer in England, and by the Revised Statutes (2 Rev. St., 3d Ed., p. 259, § 1) the supreme court of the state was declared to be vested with all the powers and jurisdiction which belonged to the supreme court of the colony of New York, with certain exceptions, not now material to be noticed. The same statutes regulated proceedings by mandamus, and, while they do not expressly limit the power to issue the writ to the supreme court, or prohibit its being issued by a judge out of court, they as sume that the power inheres alone in this supreme jurisdiction, and is to be exercised by the court as such. 2 Rev. St. 586, tit. "Writs of Mandamus and Prohibition." The statute of 1873 (chapter 239) has been construed as conferring upon certain other courts the power to issue the writ, (People v. Green, supra,) and it may be conceded that the legislature could authorize the writ to be issued by a judge in vacation, although it is difficult to see how such a jurisdiction could be conveniently exercised in view of the fact that the proceeding by mandamus is substantially an action which may involve pleadings, issues, trial, and final judgment upon the right, unless the power of the judge acting in chambers, and not as a court, should be restricted to issuing the writ returnable before the court, as is the procedure in some of the states. The power of the judge to issue the writ involved in the present appeal is placed on section 770 of the Code of Civil Procedure, which declares that "in the first judicial district a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits." The argument is that an application for a writ of maudamus is, under the Code, a motion, and that the writ, when issued, is an order; and that, although elsewhere it can only be issued on application to the court, and not by a judge out of court, nevertheless in the first district, under the section quoted, the motion may be made before, and the writ may be issued by, a judge at chambers. It is to be observed that section 770 of the Code of Civil Procedure is substantially a re-enactment of section 401 of the Code of Procedure. But the former Code expressly excepted mandamus proceedings from its operation, (section 471,) and under that Code a judge out of court in the first district had no power in mandamus proceedings other or greater than was possessed by any other judge in any other part of the state. It seems to be clear that under the former Code a judge out of court could not have issued a mandamus, as that power, by practice and the general understanding, could be exercised only by a court, and could not be exercised by a judge out of court.

It remains to consider whether the Code of Civil Procedure has enlarged the power of a judge in the first district so as to enable him to issue a mandamus out of

term, or when not sitting as a court. Prior to the enactment of the Code of Civil Procedure the writs of habeas corpus, mandamus, prohibition, etc., were regulated by statutes and the practice of the courts. In the Code of Civil Procedure these statutes and the practice thereunder were brought together, and codified under the title "Special Proceedings Instituted by State Writ," and the writs above enumerated were denominated "State Writs." The several writs are treated of in separate articles, and the procedure is regulated with great detail. The respective articles define how and when and by what authority | writs to which they severally relate may be issued. The power to issue writs of habeas corpus was for obvious reasons conferred upon both the supreme court at special or general term, and upon judges out of court, and judicial officers authorized to perform the duties of a judge. Section 2017. But the article relating to writs of mandamus expressly confines the power to issue the writ to a court at special or general term. Section 2068 is as follows: "Except where special provision is made therefor in this article, a writ of mandamus can be granted only at a special term of the court. In the supreme court the special term must be one held within the judicial district embracing the county wherein an issue of fact founded upon an alternative writ is tri able as prescribed in this article." The following section (2069) prescribes in what cases the writ may or shall be granted at general term. Section 2069 contains the only provision in the article which permits any tribunal other than the special term to grant the writ. The right of a judge out of court to grant the writ seems to be necessarily excluded by the language of section 2068, since there is "no other provision in the article" conferring upon a judge out of court the authority. Even if an application for a writ of mandamus is a motion within section 768 of the Code of Civil Procedure, it is taken out of the operation of section 770 by the peremptory and unequivocal language of section 2068. In the article relating to writs of prohibition are sections limiting the power to issue those writs to the court at special or general term, substantially as in the case of mandamus. It is difficult to suppose that the power to issue the extraordinary writ of prohibition was intended to be vested in a judge out of court, under the language of section 770, and yet this result would follow if the construction placed by the courts below upon the power of a judge to issue a mandamus is correct; the language of the statute in both cases being substantially the same. We find it impossible to avoid the conclusion that a judge at chambers in the city of New York, or elsewhere within the state, has no jurisdiction to issue a writ of mandamus. The right of a voter to vote may be lost unless this power shall be conferred. Under the statute no court can be opened within the state on the day of any general election to transact any business, except for the purpose of receiving a verdict or discharging

a jury, and for the exercise by a single magistrate of certain jurisdiction in criminal cases. Section 5, tit. 1, c. 130, Laws 1842, as amended by section 2, c. 20, Laws 1847. The voter who is refused the right to vote can resort to no court for relief until after his right is lost, as no court can entertain his application on election day. If an enlarged jurisdiction in these cases is expedient, the remedy is with the legislature. Voters outside of New York can have no relief by mandamus issued on the day of election, and we think the voters of that city, under the ar. rangement of the statutes, are in the same situation. Our conclusion requires a reversal of the orders of the special and general terms. All concur, except GRAY, J., dissenting.

PEOPLE ex rel. EVERSON V. LORILLARD

et al.

(Court of Appeals of New York. Oct. 4, 1892.) STATUTES-AMENDMENTS-SETTING OUT AMENDED

PORTIONS.

Laws 1890, c. 249, § 2, providing that proceedings by the city of New York to acquire real estate for public use shall be according to the provisions of Laws 1883, c. 490, and all payments for said property, and for expense of acquiring the same, shall be made in the manner and out of the money provided in said lastmentioned act, is not in conflict with Const. art. 3. § 17, declaring that no act shall be passed, making any existing law a part of said act, or be applicable under it, except by inserting it in such act. 20 N. Y. Supp. 68, affirmed.

Application for mandamus on the relation of Duane S. Everson against Jacob Lorillard and another. From a judgment of the general term (20 N. Y. Supp. 68) affirming the order granting the writ, defendants appeal. Affirmed.

William H. Clark, (D. J. Dean, of counsel,) for appellants. N. J. Waterbury, Jr., (A. B. Johnson and H. D. Hotchkiss, of counsel,) for respondent.

O'BRIEN, J. The order in this case which has been brought here for review directed a peremptory writ of mandamus to issue to the corporation counsel of the city of New York, requiring him to take charge of and conduct, with all practicable speed, any and all proceedings authorized by law for the appointment of commissioners of appraisal, to ascertain the compensation to be paid to the owners or persons interested in certain real estate, designated upon a triplicate map made and filed in pursuance of chapter 249, Laws 1890, and to fix the time and place for the first meeting of the commissioners so appointed. The general term having affirmed the order, the corporation counsel has appealed to this court, and the sole ground of the appeal is that the second section of the act above mentioned is in conflict with section 17 of article 3 of the constitution of this state, which declares that "no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act." The act (chapter 249,

Laws 1890) provided for the acquisition and improvement, by the city of New York, of certain lands in connection with Washington bridge, over the Harlem river, and the second section, or that part of it which requires action to that end to be taken by the authorities of the city of New York, is as follows: "The said commissioners, on behalf of the mayor, aldermen, and commonalty of the city of New York, shall thereupon apply forthwith to the supreme court, at any special term thereof held in the first judicial district, for the appointment of three disinterested persons, residents of the city of New York, as commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate shown on said profile maps, which shall not have been theretofore acquired by the city of New York, for the fee of the same. Such proceedings shall be had upon the said application, except that the same shall be in the first judicial district, as are provided for the acquisition of real estate by chapter 490, Laws 1883, and with the like effect; and all payments for the real es tate so acquired, and for the charges and expenses of acquiring the same, shall be made in the manner in which such payments are to be made, and out of the moneys therefor to be raised, as provided in said last-mentioned act.” Section 3 then provides that the property acquired, with the improvements thereon, "shall be kept and maintained by the department for public parks, as public parks and highways, and for no other purpose; except the Croton aqueduct; and the expenses thereby incurred shall be paid in the manner provided by law for the pay: ment of the other expenses of the said department." The difficulty suggested with respect to this statute is that, while it authorizes the city to acquire lands, it does not in extenso prescribe the procedure under which they are to be obtained, but for that purpose refers to another statute, namely, chapter 490, Laws 1883. The latter act is the one which confers power upon the city of New York to construct a new aqueduct and to acquire lands for that purpose. The provisions conferring the power to construct, the procedure under which the lands were to be acquired, and the manner in which the money was to be raised to pay for them, are all set forth in that act.

It is somewhat difficult to give to that provision of the constitution invoked in this case to condemn the legislation in question a reasonable construction, that would be applicable in every case. A provision of the fundamental law which attempts to regulate the form in which the legislative will is to be expressed in the enactment of laws is difficult of a just and reasonable application in all cases, and is, at best, of very doubtful utility. When the organic law has fixed the limits of legislative power, and has placed some general and suitable restraints upon its methods of procedure, its proper office is generally fulfilled; but an attempt to prescribe the language or the forms to be used or observed by the legislature in the

enactment of statutes must inevitably result either in the condemnation of numerous legislative acts, perfectly wholesome and just, or in the liberal exercise by the courts of their undoubted power to give to all laws a just and rational construction and meaning. A constitutional provision intended to operate as a restraint upon the legislature, with respect to the language and forms of expression to be used in framing acts of legislation, is not to be so construed as to embrace cases not fairly within its general purpose or policy, or the evils which it was intended to correct, though they may be within its letter. Since the incorporation of this section in the constitution, in 1875, hundreds of statutes have been passed that must be held to be in conflict with it, if we adopt that construction contended for by the learned counsel who argued in support of this appeal. There are many general acts conferring very important powers or imposing important duties to be exercised or performed according to some provision of the Code, or some statute, general or local, which contains the appropriate procedure for such a case. There are also many local acts applicable to cities and other public corporations, authorizing the issue of bonds or the raising of money according to the general provisions of the charter. Still others may be found, both general and local, conferring powers upon private corporations to contract debts in the manner provided in some other law. To hold that all these acts are void, as in conflict with this provision of the constitution, would be to disturb titles, promote litigation, and inflict widespread injury. The worst evils that the framers of the provision could have had in view would be multiplied a hundredfold by such a construction. A constitutional provision, like a statute, should not be so construed as to work a public mischief, unless the language used is of such explicit and unequivocal import as to leave no other course open to the court, and, when the intent of the lawmakers is ascertained, that must prevail over the letter of the law. Smith v. People, 47 N. Y. 330; People v. Potter, Id. 375; People v. Angle, 109 N. Y. 564, 17 N. E. Rep. 413. This court in the case of People v. Banks, 67 N. Y. 572, stated the purpose of this constitutional provision in this language: "The evil in view, in adopting this provision of the constitution, was the incorporating into acts of the legislature, by reference to other statutes, of clauses and provisions of which the legislators might be ignorant, and which affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law which would not receive the sanction of the legislature if fully understood."

Can it be affirmed, with any reason or probability, that the legislature was not, when it passed the act of 1890, familiar with the act of 1883 for the construction of the aqueduct, and acquiring lands therefor? Is there any reason to believe that, when the legislature enacted that lands in connection with Washington bridge might be acquired and paid for by