upon procuring the adjournment on Aug. 13, 1881, and that no error was committed in the progress of the trial was called upon the County Court to reverse the judgment. Judgment of County Court reversed and that of Justice's Court affirmed, with costs. Opinion by Hardin, P.J.: Boardman and Follett, JJ., con cur. EXECUTORS. N. Y. COURT OF APPEALS. Remington, respt., v. Walker, ex'r, impl'd, applt. Decided April 28, 1885. Testator's will bequeathed $2,500 to plaintiff, which was to be kept invested by the executors, and out of the income they were to pay for her support and education and pay the principal and accumulations of interest to her at the age of 21. No fund was set apart for her and no reinvestments of accumulated interest were made. A bond and mortgage for $2,500 given to testator by one of the executors and on which some payments had been made was assigned to plaintiff, and on foreclosure the mortgagor paid the contract debt with simple interest. Held, That the mortgage could not be considered a trust fund set apart for plaintiff's benefit; that an account should be made from the beginning of the executorship, and full interest charged on the principal of the legacy. This action was brought by plaintiff, a legatee under the will of her grandfather, for an accounting and the payment of her legacy of $2,500. That sum was to be kept invested by the executors, and out of its income they were to pay such amounts as in their judgment should be needed for plaintiff's support and education, and the principal with accumulations of interest was to be paid to her at the age of twenty-one. The will also gave some small specific legacies, and then bequeathed the rest and residue of the estate to the testator's daughter, E., to be paid to her after five years or more if the executors should deem best, and in the meantime to be kept invested. The referee has found that the executors wilfully neglected and omitted to perform their duty as such to plaintiff by omitting to set apart the amount of the legacy and by omitting to re-invest from time to time the accumulations of interest accruing upon it. The estate was sufficient to pay plaintiff the amount due. There were three executors, all of whom qualified, two of them being sons of the testator; they managed the estate until April 12, 1859, when all the securities and the money on hand were turned over to W., defendant's testator, the other executor, and he then became the sole acting executor. Among the securities was a bond given by M., one of the executors, to the testator for $2,500, secured by a mortgage on the farm of the obligor. On June 16, 1858, M. had paid thereon $444, and had made three payments later amounting to about $200. With these exceptions M. had paid nothing for twenty years. In 1870 he gave notice to W. that he could not pay. he could not pay. The mortgage was assigned to plaintiff, and on being foreclosed M. paid the contract debt with simple interest. This action was then brought against the two surviving executors for the non-performance of their duty under the will. E. A. Nash, for applt. J. M. Dunning, for respt. Held, That the mortgage of M. could not be considered as a trust fund set apart for the benefit of plaintiff; that an account should be made up from the commencement of the executorship to the decree against both executors, and full interest should be charged upon the principal of the legacy. The respective liabilities of the executors between themselves are after questions. 74 N. Y., 539. Judgment of General Term, affirming judgment for plaintiff on report of referee, modified, and as modified affirmed. Opinion by Finch, J. All con cur. LANDLORD AND TENANT. N. Y. COURT OF APPEALS. Odell, infant, respt., v. Salomon et al., applts. Decided May 5, 1885. A covenant by a tenant to repair does not enure to the benefit of a stranger who sustains an injury in consequence of its breach, but can only be enforced by the landlord or his assigns. The owner or occupant of a building is not chargeable with the duty of constant inspection of the premises; reasonable care in their use so that they do not cause in cover damages for injuries received by plaintiff through the falling of a window sash upon her while passing premises in the City of New York. Both the lessors and the lessees were made parties defendant. The lease contained a covenant on the part of the tenants to keep the demised premises in repair. The complaint was dismissed as to the lessees, and a judgment was rendered in favor of plaintiff against the lessors. Adolph L. Sanger, for applts. Alfred Pagelow, for respt. Held, That plaintiff was not entitled to recover on account of the failure on the part of the tenants to perform their covenant to keep the premises in repair. Such a covenant does not enure to the benefit of a stranger who sustains an injury in consequence of its breach, but can only be enforced. by the covenantee or his assigns, and their right to recover depends upon different principles than those which govern in an action by a stranger. A lessee occupying real estate may become liable to a stranger by negligently suffering the demised premises to become dangerous. The foundation of his liability is culpable negligence. He is not as to third persons the guarantor of safety or condition of the premises, but is bound only to reasonable care in his use and occu jury to others is all that the law requires. pation of them, so that they may The fact that a defect was discovered by an expert after close examination and keen scrutiny is not sufficient to charge the owner or occupant with negligence in not having discovered and remedied it. This action was brought to re Vol. 21-No. 20b. not cause injury to others. The owner or occupant of the building is not chargeable with the duty of constant inspection. which is required of railroad managers and others managing dangerous machinery liable from its nature to become defective and cause injury. Reasonable care is all the law requires, and what is reasonable care depends upon the nature of the property, and the dangers ordinarily to be apprehended in its use. It was proved that a public officer, an expert in such matters, went to the premises after the accident in the performance of his official duty for the express purpose of searching for the defect; that he discovered it by close observation and keen scrutiny, aided by his knowledge of the mode of constructing such sashes. Held, That this was not sufficient to charge defendants with negligence in not having discovered and remedied the defect before anything occurred to call attention to it. Judgment of General Term, affirming judgment for plaintiff against the landlords defendants, reversed, and new trial granted. Opinion by Rapallo, J. All con The action was for damages in trespassing on a certain farm and because, as alleged, defendant took an improperly long time to repair a bridge. This bridge, the only exit for plaintiff, was over the railroad track. Defendant removed the bridge and did not replace it in two months. At this point the railroad passes through a cut. John Cadman, for applt. W. W. Brownell, for respt. Held, That the evidence objected to was competent. Plaintiff had stated at length how the removal of the bridge had injuriously affected his farming operations. He was then allowed to state what in his opinion was the difference in value that season of the use of the farm with the bridge in place and out of place during the period of alleged unreasonable delay. He answered $300. We think this was merely a statement of the value in bulk in a case where it is obvious that an inventory of all the items in detail was impossible. The injury was peculiar to this farm, and no other farm is similarly situated. The witness might have been crossexamined as to the manner in which he reached the result he stated. 9 N. Y., 183; 31 id., 91: 55 Barb., 585; 17 N. Y., 340. It is true that a witness may not testify to damages. 2 N. Y., 514. But it is a mistake to suppose that this rule is violated by asking a witness simply what is the difference in value of the subject in one condition and in another condition. It is the preferable method that the witness should speak of the two values, and if he do not do so on the direct he may be compelled | indebtedness of any company shall to do so on the cross. Judgment affirmed. Opinion by Landon, J.; Bockes, J., concurs; Learned, P.J., not acting. CORPORATIONS. TRUSTEES. TERM. THIRD DEPT. Charles E. Patterson, rec., applt., v. Daniel Robinson et al., respts. Decided May, 1885. Where, under $ 23, Ch. 40, Laws of 1848, relative to manufacturing corporations, it is sought to hold a trustee upon the ground that he has assented to an increase of the indebtedness of the company in excess of the amount of the capital stock, it is not enough to show that he signed the annual reports. If it appear that he did not attend the meetings of the trustees, took no share in the conduct of the corporation and signed the reports upon the statement of another trustee that they were correct and without any knowledge of the truth of the facts he will not be deemed to have assented to an increase of indebted ness. at any time exceed its capital stock the trustees assenting thereto shall be personally liable for such excess to the creditors of the company. The mill was organized in 1865 with $150,000 capital, which the same year was increased to $250,000, and which was fully paid in. It manufactured from 1867 to Jan. 1879, when it suspended, owing a bank $489,000. Plaintiff was appointed receiver of this bank in Oct. 1878, and in July, 1879, recovered judgment against the mill for the above indebtedness; this is wholly unsatisfied. The referee found for defendants. O. Gambell, for receiver. E. Cowen, C. A. Waldron and W. C. Holbrook, for defts. Held, That the judgment should be affirmed as to the defendants Griswold and Kinckerbacker. It appears that the debt of the mill to the bank steadily increased in every year. The referee has found that these two defendants did not A failure to dissent is not equiva- assent to the increase of indebted lent to an assent to the creation of the debt within this section. Where the indebtedness of a corporation is already beyond the amount of its capital the liability of the trustee to those who subsequently become its creditors attaches at the instant the debt is created, and that liability cannot be divested except by the consent of the particular creditor. Payment to other creditors, by which the aggregate indebtedness of the corporation during the trustee's term is reduced, will not relieve him from liability to that creditor to the creation of whose debt the trustee did assent. This action was brought against defendants as trustees of a woolen mill under $ 23, Ch. 40, Laws of 1848, which provides that if the ness. It does not appear that they ever attended any meeting of the trustees or were consulted with reference to the management of the business or participated in its affairs except to sign the annual reports; and then only upon their faith in the assertion of an associate trustee that they were correct. To make a trustee liable under 23, supra, his subsequent failure to dissent is not equivalent to an assent concurring with the creation of an excess of debt. As to the defendants Robinson and Pinkham the judgment must be reversed. The question is whether with their assent the indebtedness of the mill increased in their term of office as trustees. We agree with the referee that the interest accruing on a debt to which they had not assented and which was in existence when they came in office is not an increase of indebtedness within this section. But the referee found that on May 1, 1875, when these defendants took office the debt of the mill was to all persons $434,214, of which $300,000 was due the bank. That in Jan., 1879, when this action was begun the total debt was $515,770, of which $139,000 was due the was due the bank. Thus in the time of Robinson's control the total debt increased only $81,656, while the interest on the old debt was $111,444. And because in this view the total debt of the corporation had not increased under Robinson, although the debt to the bank had increased (beyond interest) $34,000, the referee held that Robinson had not assented to an increase of indebtedness. We think this was error. May 1, 1875, there was no time when the total indebtedness did not exceed its capital stock. The debt to the bank at all times increased, and beyond accruing interest. Any increase of indebtedness, then, was one upon which the trustees were liable and liable to the creditors to whom this excess was owing. Having gone beyond the limit of the capital any further indebtedness is one as to which the personal liability of the trustee attaches the instant the debt is created. And having once attached After it cannot be divested except with the creditor's consent. Therefore Robinson's liability to the bank could not be discharged save by payment to the bank. The decrease of the aggregate excess of liability caused by paying creditors other than the bank would not cancel Robinson's liability to it. The referee finds that he assented to an increase of liability to the bank for $34,000 and Pinkham for $1,382. Judgment directed against them for these sums and affirmed as to Griswold and Kinckerbacker. Opinion by Landon, J.; Bockes, J., and Learned, P.J., concur. NEGLIGENCE. N. Y. COURT OF APPEALS. Lowery, respt., v. The Manhattan R. Co., applt. Decided May 8, 1885. Live coals fell from one of defendant's engines upon the back of a horse, which thereupon became unmanageable. The driver attempted to drive him against the curbstone to check his speed, but the wagon was overturned, the driver thrown out and plaintiff was run over and injured. Held, That the proximate cause of plaintiff's injuries was the wrongful act of defendant and it was liable therefor. This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. It appeared that live coals and ashes fell from an engine on defendant's road upon the back of a horse attached to a wagon, and upon the hand of the driver in the street |