and 140 New York State Reporter various proportions which were given to each of these nieces and nephews, and the contingent distributions, are not material to be mentioned. Finally, the will provides a power of sale in the executors after the death of Catherine, and to divide the net proceeds of such sale among the people entitled thereto in the provisions of the will, such power of sale, however, to be exercised within the period of 10 years after the decease of Catherine. Catherine T. Smith, the life beneficiary, died on the 11th day of April, 1906, and it cannot be doubted that at that time each of the beneficiaries provided for under the will came into the right of possession of the expectant estate, subject to the discretionary power of sale vested in the executors, which power has never been exercised, though it is alleged in the complaint that these executors are threatening to sell the Murray Hill Hotel property at a price below its fair value. Prior to the death of Catherine, and on the 20th of May, 1905, by 14 separate conveyances, John J. O'Donohue, Thomas J. O'Donohue, Jr., May Cecelia Dillon, Francis J. M. Dillon, Agnes M. Smyth, Louis Smyth, Francis Smyth, Peter Smyth, Teresa R. Smyth, Jane T. Dillon, John H. Murphy, Edward Murphy, Margaret C. S. Carroll, and Mary L. O'Donohue, now Mary L. Kelly, conveyed to Henry A. Smith (the plaintiff's testator) one equal fourth part of all their right, title, and interest in and to said lands and premises. These parties were those who were entitled to take upon the death of Catherine, and they unquestionably had a right to convey their interest to Henry A. Smith, subject to the contingencies provided in the will, and upon the death of Catherine there was an immediate right of possession, subject, perhaps, to the naked right on the part of the executors to sell the lands for the purposes of distributing the proceeds. Henry A. Smith, as we have already seen, died in 1903, leaving a last will and testament, and the plaintiff in this action is asserting his rights under the several conveyances above mentioned, and which involved the acts of every one of the persons who were interested in the distribution of the estate. Enough, we believe, has been pointed out to indicate clearly that Hugh Smith did not create a trust in his will. He not only did not attempt to vest the title in his executors in trust, but he specifically gave, devised, and bequeathed the income to Catherine for her life, and, upon her death, he gave, devised, and bequeathed the entire estate, giving merely a naked power of sale to his executors, not absolutely, but in their discretion. Before the death of Catherine, and while some of the interests were liable to be defeated by death, those in whom the estate eventually vested joined in conveying an interest in the property to the plaintiff's testator, and thus all occasion for the exercise of the power of sale in the executors was at an end. It is urged that by conferring the power of sale an equitable conversion of the realty, including the Murray Hill Hotel and the Avenue B property, was operated; but, if that be so, then, the beneficiaries having disposed of a portion of their interest in the property, this power became useless. They had elected to take the property rather than the proceeds, and this, under well-recognized authorities, is entirely proper. If the grantees had conveyed their entire interest, so that the full title vested in Henry A. Smith, it certainly would not be contended that the executors, who had the power merely for the purpose of conveniently closing up and distributing the estate, were justified in selling the premises, and the rule ought not to be different because such interest only reached a one-fourth part of the estate. This is the doctrine of Greenland v. Waddell, 116 N. Y. 234, 22 N. E. 367, 15 Am. St. Rep. 400, and no reason suggests itself why it should not be applied in the present case. But, looking at the scheme of this will and especially at the tenth and eleventh clauses thereof, it is apparent that the testator, after the death of his sister Catherine, gave by the tenth clause one equal undivided half part of the rest, residue, and remainder of his estate to his sister Margaret Smyth, wife of Bernard Smyth, to have and hold unto her, her heirs and assigns forever; and, if she should die before Catherine, then to the issue of Margaret, and by the eleventh clause, upon the death of his sister Catherine, the testator gave, devised, and bequeathed the remaining equal undivided half part of all the rest, residue, and remainder of his estate, real and personal, unto his nieces and nephews, children of Mary Ann Murphy and James Murphy, her husband, in proportions named in subdivisions of the eleventh clause. Here are specific devises, which are not controlled as to vesting in ownership by the power of sale given in the thirteenth clause and relating to the Murray Hill Hotel and the property on Avenue B. That thirteenth clause does not cut down the specific devises to mere legacies of the proceeds of sale. The title is in the devisees, and, while the executors no doubt might have exercised the power of sale, not having done so, the title is still in the devisees and they may maintain partition. This view is re-enforced when we have regard to the seventh clause of the will, which gives to the executors power of sale with reference to all the rest of the real estate, except the Murray Hill Hotel and the property on Avenue B. The general power of sale for the purposes of administration extends over all the real estate of the testator, except that which is specifically devised by the other clauses of the will which have been referred to, and in respect of which the power of sale is only discretionary, to be exercised within 10 years after the death of the testator's sister Catherine, and does not supplant or affect the clear title of those devisees who, on the death of Catherine, became the owners of the property in the respective interests nominated in the subdivisions of the eleventh clause of the will above referred to. The objection that the Murray Hill Hotel is in the possession of one Bates, under a lease executed for a period of 20 years, and that this shows that all of the defendants are not in possession, is not tenable. The lease was made during the lifetime of Catherine, and was no doubt good during her lifetime, but the executors had no power to make a lease beyond the power given to them in the will. And this question may be determined in an action for partition. See Weston v. Stoddard, 137 N. Y. 119, 33 N. E. 62, 20 L. R. A. 624, 33 Am. St. Rep. 697; Satterlee v. Kobbe, 173 N. Y. 91, 65 N. E. 952. We are clearly of opinion that all of the necessary parties are before the court, that they are in possession of the premises within the contemplation of the provisions of the Code of Civil Procedure, and that the demur and 140 New York State Reporter rer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, was properly overruled. The interlocutory judgment appealed from should be affirmed, with costs, with leave to the appellants to answer on the payment of costs in this court and in the court below. All concur. AMES et al. v. NORWICH LIGHT CO. (Supreme Court, Appellate Division, Third Department. November 20, 1907.) 1. SALES-BREACH OF WARRANTY-RIGHTS OF PURCHASER. Where plaintiffs installed a power plant for defendant under express warranty as to fuel economy in its use, etc., defendant could keep and use the plant with knowledge of its defects, and rely upon the warranty for protection. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 1227.] 2. SAME. In an action for the price of a power plant, damages for a breach of warranty as to fuel economy in its use, etc., were properly pleaded as a counterclaim. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 1214.) 3. SAME-DAMAGES-MEASURE. The measure of the purchaser's damages on a breach of warranty by the seller of a power plant is the difference between the value of the plant if it had been as warranted and the actual value as it was at the time of delivery. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 1285.] 4. SAME. It is improper to allow the buyer of a power plant, on a breach of warranty by the seller, a sufficient amount of damages to make a perfect plant as called for by the contract, and at the same time award another amount because the plant is imperfect, when many of the same items are included in each amount. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, §§ 12851290.] 5. SAME. Where engines, etc., to be installed in the buyer's electric light plant do not fill the seller's warranty, the buyer is not entitled to an item for the enlargement of its buildings in putting the plant in condition to fulfill the contract. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 1290.] 6. SAME. On breach of warranty by the seller of a power plant as to fuel economy in its use, the buyer is not entitled to damages on account of the seller adding 40 feet to the length of the smokestack, where it was done at their own expense, in good faith, and with the buyer's consent to increase the efficiency of the plant. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 1290.] 7. SAME-CONSTRUCTION OF WARRANTY. A warranty that stationary engines will develop rated horse power on a fixed fuel consumption is not a warranty of the fuel economy of the engines when carrying any less load than required to develop their rated horse power; it appearing that such engines will not run with the same fuel economy at an under load as at the rated load. Appeal from Order Entered on Report of Referee. Consolidated actions between Leonard Ames and others and the Norwich Light Company. From a judgment upon a referee's decision, and an order denying a motion to set aside the referee's report, Ames and others appeal. Order affirmed, judgment reversed, referee discharged, and new trial granted. Appeal by Leonard Ames, Arthur L. Merriam, Leonard Ames, Jr., and Allen Ames, from a judgment of the Supreme Court, entered in the clerk's office of the county of Chenango, on the 30th day of June, 1902, upon the decision of a referee; also from an order entered in said clerk's office on the 23d day of May, 1902, denying a motion to set aside the referee's report. The appellants entered into a contract April 30, 1894, with the respondent, the Norwich Light Company for the erection and installation of two engines of 115 horse power each, two tubular boilers, a water heater and a pump, and the necessary appurtenances therefor in the electric light plant of such company at Norwich, N. Y., for an agreed price of $5,621, payable $2,000 on arrival of machinery at Norwich, and the balance at end of 30 days' run. The contract contained a guaranty that the "engines shall develop rated horse power on a fuel consumption, not exceeding three lbs. of good anthracite coal (clean chestnut) per I. H. P. per hour this to be determined by a test covering one day's run." The complete plant was also guaranteed against defects in material for a period of one year. The specifications for engines attached to the contract contained this further provision: "Economy. That the efficiency and fuel economy shall be the best obtainable for engines of this type and horse power capacity, and that this high grade of economy and efficiency shall be maintained through a much longer period of time than is possible with any form of piston valve engines." The appellants manufactured and set up in the respondent's plant the materials mentioned in the contract, and put the plant in operation on or about the 15th day of November, 1894, and thereafter ran the same under the direction of their employé for a period of 30 days, which period expired on the 15th day of December, 1894. On the arrival of the material at Norwich, the respondent paid the appellants $2,000 on account of the contract. The appellants never made any test of the plant covering one day's run, as provided in the contract. They undertook to make a test for fuel economy on December 6, 1894, and discovered that, as the plant was in a valley, the 60 foot smokestack mentioned in their specifications was not high enough to make a sufficient draught to burn the fuel effectually. They then lengthened the stack to the height of 100 feet. After that, and on December 13, 1894, they made a test which was continued six hours, in the presence of one Wheeler, who was an employé of the respondent, and whom the appellants claim was acting for the respondent as superintendent of this test with full authority in regard thereto. After six hours Wheeler expressed himself as satisfied with the test, and it was discontinued. The referee has found that Wheeler had no authority under his employment to bind the respondent with respect to this test. After this test was made the appellants demanded the balance of their pay, claiming the full completion of their contract. The respondent refused to pay, and within a few days served a summons in an action brought by it against the appellants. No complaint was served with this summons, and it was not served until March 3, 1895. In it damages were claimed for alleged breach of contract. In June, 1895, the appellants commenced an action against the respondent to recover the amount unpaid upon the contract. Answers were interposed in each of these actions. The light company's answer contained a counterclaim for $5,000 damages for breach of warranty with respect to fuel economy and for $5,000 damages for defective work. After the commencement of these actions, the respondent employed an expert, who about December 1, 1895, made a test of the plant of a day's run, and he testified upon the trial that upon such test the consumption of coal was 3.87 pounds per indicated horse power per hour. The two actions above mentioned were consolidated by order of the court, and they were tried as one before a referee who gave judgment in favor of the present appellants, which was reversed on an appeal to this court and a new trial ordered. 22 App. Div. 249, 47 N. Y. Supp. 743. A new trial has been had before another referee who has awarded judgment in favor of the respondent under a decision wherein he finds that the appellants should be charg and 140 New York State Reporter ed with damages for the failure of the plant to perform the guaranty with regard to fuel consumption in the sum of $5,000; for damages for imperfect and improper construction of the plant $2,700; for the amount paid on account of the construction of the plant $2,000; or a total of $9,700, from which he deducts $5,600, instead of $5,621, for the contract price, and awards judgment in favor of the respondent for the balance, $4,100, besides costs. This judgment is brought here for review by the present appeal. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. George N. Burt, for appellants. CHESTER, J. The second trial of this case was held six years after the appellants had surrendered the plant to the respondent. So far as the evidence shows, it never returned or offered to return it to the appellants. On the contrary, it has ever since kept and used it with knowledge of all its alleged defects. It undoubtedly had the legal right to do this, and to rely upon the express warranty contained in the contract for protection. Hooper v. Story, 155 N. Y. 171, 49 N. E. 773; Rust v. Eckler, 41 N. Y. 488; Day v. Poole, 52 N. Y. 416, 11 Am. Rep. 719; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63. An action having been brought for the purchase price, the damages for a breach of the warranty were a proper subject for counterclaim (Reab v. McAlister, 8 Wend. 109), and the damages for a breach of warranty is under the authorities the difference between the value of the plant if it had been as warranted and the actual value as it was at the time of delivery (Hooper v. Story, supra; Bates v. Fish Bros. Wagon Co., 50 App. Div. 38. 63 N. Y. Supp. 649; Isaacs v. Wanamaker, 189 N. Y. 122, 81 N. E. 763). The referee has found that the appellants have not substantially performed their contract, and that they have been guilty of a breach of their guaranty as to fuel economy. He has allowed, as has been stated, $2,700 damages by reason of the improper construction of the plant; the items aggregating which amount being specified in his report in detail. It would seem that, if this amount was expended in correcting the improper construction, the plant would then conform to the requirements of the contract. In addition to this sum, the referee has found that at the time the plant was delivered to the light company it was worth $5,000 less than it would have been if it had been capable of performing the guaranty as to fuel consumption, and damages for this amount are also awarded. The $5,000 item is based apparently upon the testimony of Barrus, the light company's expert, and his testimony shows that he has included in his estimate of this amount of damages many of the same items going to make up the $2,700. This appears to be true as to the cost of a new stack, of resetting boilers, of putting in dampers, of new bases, of new piping, and of covering for pipes. There has thus been a repetition of many of the same items of damage. It cannot be correct in an action of this kind to allow a sufficient amount of damages to make a per |