erected in the street which interrupts to any considerable extent the passage of light and air works the destruction of easements for such purposes; that any incident of the structure which necessarily increases and aggravates the injury must be subject to the same rule.

No partial justification of the damages inflicted by an unlawful structure and its unlawful use can be predicated upon the circumstance that under other conditions and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable to damages.

The structure here and its intended use cannot be separated and dissected, and it must be regarded in its entirety in considering the effect which it produces upon the property of the abutter. However the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass, rendering the wrong-doer liable for the consequences of his acts.

The legislature, as we have seen, had no power to authorize the street to be used for an elevated steam railroad, and that want of authority extends to every incident necessary to make the road an operative elevated steam railroad which occasions injury to the rights of abutters on the street. Baltimore & Potomac R. Co. v. Fifth Baptist Church,

108 U. S. 329.

We have carefully examined the other exceptions taken by the appellants in the course of the trial, and all seem to us to be covered either by the decision in the Story case or the discussion already had.

We have been made aware that many questions involved in actions by abutters against the defendant have been agitated in other cases which it is stated are now on the way to this court, and may hereafter require consideration here.

In discussing this case we have refrained from referring to any of those questions unless properly raised by sufficient exceptions and necessarily involved in the determination of this case, leaving the consideration of all other questions to cases where they properly arise.

The judgment should be affirmed.

ANDREWS and DANFORTH, JJ., concur; EARL, J., concurs in result on authority of Story v. El. R. R. Co.; FINCH, J., concurs in result; RAPALLO, J., takes no part.

EARL and FINCH, JJ., not being able to concur in all the views expressed in the foregoing opinion, concur in the result on the authority of the Story case; deeming it necessary to add that while they are unwilling to extend the scope of the decision in that case beyond its fair import, yet, in their opinion, it gives to abutting owners only damages for the construction and operation of the railway in front of their premises resulting from the taking or destruction of their street, easements of light, air and access, and for such damages to their adjoining property as are necessarily caused by such taking and destruction; that the abutters cannot recover damages to or upon their abutting property caused by the lawful operation of the road, and not by the deprivation or destruction of their easements in the street; that there can be no recovery for any thing done by the railway in the street except as it deprives, or tends to deprive, the abutters of the easements

mentioned, and that they believe these principles were not violated upon the trial of this action.

WAGNER, Resp't, v. METROPOLITAN ELEVATED R. R. Co., Appl't.

February 1, 1887.

Julien T. Davies and Edward S. Rapallo, for appellant. Inglis Stuart, for respondent.

RUGER, Ch. J. No material distinction between this case and the Lahr case has been called to our attention, and we, therefore, hold that it is governed by the conclusions reached in that case.

The judgment is, therefore, affirmed.

Same vote as in Lahr case.

MATTER OF KELLOGG AS EXECUTOR.*

January 18, 1887.

An executor cannot be charged with the amount of a note made by him, payable to the order of his testator, which has been surrendered to him by the tes tator during his life-time and afterward destroyed by the executor, when there is no evidence that at the time the gift was made the testator was insolvent, or that there was actual intent to defraud creditors.

An attorney for the testator in an action against one S. received in New York $6,500 on account of that action, at half-past nine A. M., October 10, 1881. He learnt that the testator was at the point of death. He sent on that day his check for $6,000 — deducting $500, his fee - to K. at his office in New York, K. having been for many years the agent of the testator in his business. The attorney told the person in charge of the office to telegraph K. that the money was there. The check was on a New York bank and to the order of A. B. Kellogg. The deceased died that day. The check was paid October twelfth. On the tenth of October there was an unsettled account between the deceased and K., on which there was a large balance owing to K.; K. credited this check on his account and charged himself with the balance after such credit. The surrogate having allowed the credit as claimed by the executor it was insisted that the executor should have been charged with the $6,000 as if he had actually received the check after testator's death. Held, that appellants not having complied with the provisions of section 2545, Code of Civil Procedure, were not in a position to claim that any error had been made as to said item.

Held, further, that when the money was drawn upon the check, the payment related back to the delivery of the check. K. did not draw the money as executor but as payee of the check, and could not be compelled to account for the check except by first applying it upon what the testator owed him in current account. At the time of the death of the testator, his widow held a note for $5,000 against him, given for borrowed money, dated March 17, 1870. Held, that indorsements of payment thereon made by the holder when against her interest so to do, was prima facie evidence of payment, and that the surrogate was authorized to find that the note was thereby kept alive notwithstanding the fact that the last two payments were made after the lapse of six years from the date and maturity of the note.

Under section 829 of the Code Civ. Proc., an executor is not competent to prove a payment by him to his testator.

L. Laflin Kellogg, for executor. Arthur H. Smith, for Mrs. Kellogg. Matthew Hale and Ward & Cameron, for Mrs. Aletta A. Akin.

EARL, J. These appeals bring to our attention several matters which will be separately considered.

* Reported below, 39 Hun, 275.

1. Prior to 1876 the testator held a note for upwards of $11,000 against the executor, and early in that year he gave it to the executor, who destroyed it. The testator lived until October 10, 1881, when he died insolvent. It was claimed by the testator's widow, who at the accounting was the sole creditor, that at the time he made the gift of the note the testator was insolvent, and hence that the gift was fraudulent and void as to her, and that, therefore, the executor as to her should be charged with the amount of the note. In the surrogate's court he was so charged, but the general term reversed the decision of the surrogate as to that item and relieved the executor from the charge, and we think correctly.

We do not determine that the surrogate had jurisdiction to enter upon the inquiry whether the gift was fraudulent and void as to creditors, and that finding it fraudulent and void he could, on that ground, charge the executor with it, although it was good and valid as against the testator. But passing the question of jurisdiction we fail to find any evidence in the record that at the time of the gift, more than five years before his death, the testator was insolvent. After that time he had left a valuable farm and other assets, in all far exceeding in amount the value of his debts, and hence the gift, in the absence of an actual attempt to defraud of which there is no proof or finding was not a fraud upon the creditors, and must stand.

2. During the life-time of the testator, for some years prior to his death, the executor was the general agent of the testator, having the general management of his business, and as such he placed in the hands of an attorney a claim against one Schuyler for collection. Suit was brought upon it, and the attorney, some time before the death of the testator, collected $6,500. From that sum he deducted $500 for his services, and afterward, on the tenth day of October, while the testator was still alive, he drew his own check upon a New York bank for the sum of $6,000, payable to the order of Asa B. Kellogg, the executor, and sent it to his office in the city of New York, and it was there delivered to some person who was in charge of the office before the testator's death, with directions to telegraph its delivery to the executor, who was then with the testator in Greenbush. The testator died the same day, and on the twelfth day of October the executor drew the money on the check and credited it in his account with the testator. After such credit there was still a balance due from him to the testator, with which he charged himself on the accounting. The surrogate allowed the $6,000 as a credit in the account of the executor as claimed by him. But some of the appellants claim that that sum should have been charged to the executor, as if he had actually received the check after the testator's death, and that the courts below erred in not so charging it. We are of opinion that none of the appellants are in a position to claim any error here as to this item. Mrs. Akin, the widow, neither excepted to the finding of the referee nor appealed to the general term. The general guardian of the infant appellants appealed, but did not except to any of the findings or decisions of the surrogate; and the special guardian of the infants filed exceptions, but did not appeal to the general term. An appeal to this court from an affirmance by the

general term of a surrogate's decree brings nothing here for review where there was no appeal to the general term, and upon an appeal from a surrogate's decree no complaint can be made of any finding or decision which has not been excepted to. Code, § 2545.

But for a further reason we think there was no error in reference to this item. The money when collected was deposited by the attorney in his bank account, and hence he became a debtor to the testator for that sum. He had been directed by the testator to pay it, when collected, to the executor as his agent. He made such payment by his check, and when the check was delivered at the office of the executor to some one there in charge, it was delivered to him and operated as a payment sub modo. He could then treat it as funds in his hands to be applied, so far as needed, in payment of what the testator then owed him. When money was drawn upon the check, the payment related back to the delivery of the check. He did not draw the money as executor, but as payee of the check, and he could not, therefore, in law or equity, be compelled to account for the check except by first applying it upon what the testator owed him in current account.

the

3. At the time of the death of the testator his widow held a note for $5,000 against him, given for borrowed money, dated, March 17, 1870, upon which there was indorsed the following payments: $350 March 17, 1873; $350 March 17, 1874; $350 March 17, 1875; $300 March 17, 1877, and $200 December 8, 1880. It was proved that the indorsements were made by Mrs. Akin at their dates. The note had been presented to the executor as a claim before the accounting and admitted by him, and he had made payments upon it. The objection is now made, by some of the appellants, that the note was barred by the statute of limitations and that the surrogate erred in ordering the executor to pay it. To this there are several answers. The only objection filed to this note before the surrogate was that it had been paid, and the statute of limitations does not appear to have been mentioned during the trial. The objection that the note was barred should not, therefore, prevail here. The executor had admitted the claim upon the note, and in doing that he acted for and represented all the persons interested in the estate. The admission implied that the note had not been paid and that by payments made thereon it had been kept in life, and so upon the admission alone, in the absence of countervailing evidence, fraud or collusion, the surrogate was authorized to find. But proof that the indorsements were made at their dates was sufficient to authorize the surrogate to find, and required him, in the absence of conflicting evidence to find, that the note had been kept in life by payments actually made. The indorsements were all made while the note was in life and when it was against the interest of the holder to make them unless true. It matters not that the last two payments were made after the lapse of six years from the date and maturity of the note. It is the fact and that alone that it was against the interest of the holder to make such indorsements that makes them prima facie evidence of payments. Roseboom v. Billington, 17 Johns. 182; Risley v. Wightman, 13 Hun, 163; Hulbert v. Nichol, 20 id. 454.

4. It is claimed on behalf of the executor that his evidence as to the

payment of $590 to the testator was improperly excluded and that he was thus erroneously deprived of a credit for that sum. The payment was a personal transaction with the testator and, hence, under section 829 of the Code, he was incompetent to prove it. We cannot be certain from an examination of all the evidence that the executor, by his previous examination on behalf of the contestants, had been rendered competent to testify as to the payment, and in view of the small difference the allowance of this credit would make in the final result, we are constrained to hold that the surrogate did not err in reference thereto.

5. The executor claims that the general term erred in its modification of the surrogate's decree and that it should have sent the case back to the surrogate for a rehearing. By the finding of the surrogate, that the executor was chargeable with his note for upwards of $11,000, the estate of the testator was shown to be solvent and there was enough to pay all the debts in full. But when the general term, upon the claim of the executor, struck out the note as a charge against him, the estate was shown to be insolvent, and then it appeared that the executor had made an over-payment to one of the creditors whom he had paid in full. In readjusting the account the general term disallowed this overpayment, and in this no error was committed. Objection to the overpayment was distinctly made before the surrogate. The general term had power to reverse, affirm or modify the decree appealed from. Code, § 2587. All the elements for the modification appeared in the findings of the surrogate, and it had the power to render such a judgment as the surrogate should have entered. The only error found by the general term was the charge against the executor of his note for upwards of $11,000, and interest, and the only modification of the surrogate's decree was that made necessary by the disallowance of that charge, and that modification the general term was competent to make. This case is not without some difficulties, but after careful consideration we have reached the conclusion that the judgment should be affirmed, without costs to any party.

All concur.

Judgment affirmed.

PEOPLE, Appl't, v. STEVENS, Resp't.

February 1, 1887.

Geo. T. Quinby, district attorney, for appellant. John Laughlin, for respondent.

PER CURIAM. The order of reversal states merely that it was made on questions of law. It does not state that the court has considered the questions of fact, or exercised the discretion which the statute confers upon it. We have decided that this court will not review an order of reversal in such a case, unless it shows that the court has exercised its discretionary powers. See People v. Boas, 92 N. Y. 560-564; People v. Conroy, 97 id. 62–72; Harris v. Burdett, 73 id. 136. Although the court in the present case puts its decision upon a question of law,

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