APPEAL from judgment sustaining the demurrer of Emily' Golder and dismissing the complaint as to her.

Ira Leo Bamberger, for app'lts; S. F. & F. H. Cowdrey, for resp't.

VAN WYCK, J.-This is an action brought by present owners of the equity of redemption to redeem mortgaged premises, upon payment of whatever may be found due after applying thereto all rents received by the mortgagee in possession upon a certain mortgage made by one Pontan, a prior owner. This mortgage was a subsisting lien upon the premises at the time plaintiff Johnson became the owner thereof. Plaintiff Piddian is the assignee of Johnson of an undivided three fourth () interest of this cause of action,

Defendant, Emily Golder, respondent, demurred to the complaint on two grounds, viz.:

1. That two causes of action are improperly united.

2. That complaint does not state facts sufficient to constitute a cause of action against her.

The special term sustained the same on the second ground, and judgment was thereupon entered, dismissing the complaint as to Emily Golder, with costs. From this, plaintiffs have appealed. The complaint, when stripped of the details incident to an equity pleading, shows that Johnson became the owner in fee simple of the premises, subject to this Pontan mortgage. While he was such owner, defendant H. W. Bates the assignee of that mortgage, foreclosed the same in the supreme court, but failed to make Johnson (the owner of the equity of redemption) a party to that action. At the foreclosure sale, defendant Louise E. Bates, was the purchaser and grantee thereof. Thereafter Louise E. Bates mortgaged the same premises to Golder. Thereafter Golder foreclosed her mortgage in the supreme court, and at the sale defendant Cowdrey became the purchaser and grantee thereof. This last foreclosure and sale certainly divested Golder of all interest of whatever kind which she ever had, or might have had, or could have claimed in, to or upon the premises by virtue of the mortgage made to her by, Louise E. Bates. She then parted absolutely and irrevocably with her only claim to the mortgage or premises.

Assuming that Cowdrey is a mortgagee in possession by the devolution upon him of the original rights of H. W. Bates in the Pontan mortgage through the foregoing chain of circumstances, and that he consented to the redemption by Johnson of the premises from the Pontan mortgage upon the payment of the sum ascertained to be actually due, would it affect any right of Golder, or could she with the least semblance of right object to it? No, for she has parted with every shadow of interest, and Cowdrey has become possessed of every claim she ever had. Suppose Cowdrey should, by mutual agreement, convey to plaintiffs all his right, title and interest in these premises; would it in any way affect, injure or benefit Golder? No judgment can be granted in this action in respect to these premises which will affect in the least degree defendant Golder, for she has absolutely no interest in the premises.

But, say the plaintiffs, if the foregoing facts do not constitute a cause of action against Golder, then the allegation in 19th subdivision of the complaint will do so. The allegation "that defendants, H. W. Bates, Louise E. Bates, Emily Golder and S. F. Cowdrey, have, and are collecting the rents," does not help the plaintiffs in their contention, for it has, according to the allega tions of the complaint, no connection, so far as Golder is concerned, with an action to redeem mortgaged premises. Plaintiffs do not allege that Golder ever had possession or the right of possession, or ever claimed any right of possession, or ever was, or ever claimed to be a mortgagee in possession. Under such circumstances either a trespass upon the premises, or an interference with the rents by Golder without any alleged right or claim of right to do so as an owner, or as a mortgagee in possession, does not make her a proper party to an action to redeem mortgaged premises. For either of such wrongs there is a remedy in an action against her by the party injured, if the facts to sustain a cause of action for either of such wrongs are pleaded, but no such cause of action is set forth in the complaint herein.

"There is no rule in equity or law which authorizes the bringing in of parties who have no inherent right to defend the action brought." Spring v. Short, 90 N. Y., 546

Judgment affirmed, with costs.

CLEMENT, Ch. J., dissents.

JOHN NORLING Resp't, v. WILLIAM H. ALLEE, as Trustee, etc., Impl'd, App'lt.

(City Court of Brooklyn, General Term, Filed June 3, 1890.)

1. NEGLIGENCE-FENCES-INJURIES TO PASSERS BY.

The owner of premises who keeps his property in a reasonably safe condition is not liable to passers by on the street for injuries caused by the fence being blown against them by a storm of unusual severity. He is not called upon to construct a fence which would withstand a storm which unroofed houses and did like damage.

2. SAME TRUSTEES.

Where the title to the premises is held by the defendants as executors and trustees under a will they are not liable in their representative capacity for their negligent acts; their liability, if any, is personal.

APPEAL from judgment in favor of plaintiff, entered on the verdict of a jury.

T. E. Hodgskin, for resp't; William Sage, for app'lt.

CLEMENT, Ch. J.-The plaintiff was injured on the evening of January 9, 1889, while walking on the sidewalk of Flatbush avenue near Third in this city. A fence in front of the premises owned by defendant as trustee fell or was blown upon plaintiff by the wind, whereby he sustained bodily injuries. A verdict at the trial term was rendered in his favor for the sum of $500.

The plaintiff was the only witness in his behalf who testified as to the condition of the fence prior to the evening in question. He said that he observed the fence very often before the accident, and that sometimes, when there was a strong wind, he saw it

"like shaking," but that he did not think that it would tumble down; that before he was injured he heard a sound like an explosion, something like a shock, the heavens were a red light and the wind made a loud roaring noise, and that he was "a little afraid" himself. It also appears from his testimony that the fence was not blown over, but that the wind carried it for at least six feet before it fell. The fence was six or seven feet high and the sidewalk twelve feet wide and plaintiff said that he was on the edge of the sidewalk when he was struck down by the flying fence.

The testimony of the witnesses for the defendant conclusively shows that a cyclone prevailed in the vicinity. It appears that the front of a paint shop on the premises in question was blown out into the street and that the shop was so wrecked that it had to be taken down. A new fence in the vicinity was also thrown down and many windows of neigboring buildings were blown in. One witness says that two sheets of corrugated iron eight feet long by two feet wide were blown off the roof of his house, one into the street and the other a block away. Mr. Demott testified that the roof of the annex of school house No. 15 was torn off, and that four other buildings very near the fence in question were also unroofed.

We have stated only a portion of the facts proven by the witnesses for the defendant as to the violence of the storm, and after carefully considering the case, we are of opinion that the complaint should have been dismissed on the ground that there was no evidence of negligence of the defendant. The testimony clearly establishes that the fence was blown from its position, a fact which tends strongly to prove that it was strong and resisted the violence of the wind, for if the fence was weak it would have simply fallen. The storm was of such violence that the result should be treated as the act of God. Sheldon v. Sherman, 42 N. Y., 484. The owner was not called upon to construct a fence which could withstand a storm which unroofed houses and did like damage, he was only bound to keep his property in a reasonably safe condi

tion.

We think that on another ground the judgment cannot be sustained. The defendant was sued in his representative capacity, and was one of three trustees, and was the only one served with summons in the action. We are of opinion that the defendant, as trustee, was not liable for negligence, and that the remedy of the plaintiff was against him personally. The authorities are numerous that an executor or trustee cannot make the estate liable by an express contract unless directly authorized by the trust. New v. Nicoll, 73 N. Y., 127; Austin v. Munro, 47 id., 360; Ferrin v. Myrick, 41 id., 315; Stanton v. King, 8 Hun, 4. If an executor or trustee cannot make an estate liable by an express contract, it would seem to follow that the estate could not be mulcted for his careless act. The authorities are very meagre on the question, but the principle is recognized in the case of Camp v. Barney, 4 Hun, 373, 376. See, also, People v. Townsend, 3 Hill, 479. In the case before us, if the judgment is sustained, the trust property is taken when but one of the three trustees has had his day in court,

whereas, if the law is that the three trustees are liable in their mdividual capacity, an action would lie against one or all, as joint tort-feasors.

The judgment and order denying new trial must be reversed, and a new trial granted, costs to abide the event.

OSBORNE, J., concurs.

S. FLEET SPEIR et al., Ex'rs., etc., Resp'ts, v. THE TOWN OF NEW UTRECHT, App'lt.'

(Court of Appeals, Filed June 3, 1890.)

1. HIGHWAY-WHEN CREATED BY USER.

A private way, opened by the owners of land through which it passes, for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it, where there is no proof that the public authorities kept it in repair, or adopted it, or in any way recognized it as a highway.

2. SAME-ESTOPPEL-ASSESSMENTS.

The fact that some of the owners of land assessed paid their assessments does not estop the plaintiffs from assailing the assessments in question, or forbid the maintenance of this action.

3. SAME.

The existence of a railroad upon a part of a road during a portion of the twenty years does not defeat the claim of a highway by user, where the strip is open to the public, and travelers can pass over every part of it, except that it was not practical for vehicles to pass over the tracks.

4. SAME.

The order of the supreme court confirming the report of the opening commissioners was not an adjudication binding upon plaintiffs, and constituted no bar to this action.

APPEAL from a judgment of the supreme court, general term, second department, reversing judgment of the special term for defendant and directing judgment for plaintiffs.

This action was brought by the plaintiffs' testator, and in his complaint he prayed, besides other relief, that the assessments laid upon his land in the town of New Utrecht for opening, grading and improving Cropsey avenue be declared void, and that the defendant be perpetually enjoined from collecting the same. The action was to put at issue and afterward brought to trial at a special term of the supreme court. Witnesses do not appear to have been produced at the trial, but the evidence there taken was in the form of statements mutually made and mutually assented to by the parties. The material facts found by the trial judge from the evidence so taken are as follows: In 1810 there was an ancient public highway known as the "Old Mill Road," running through the towns of New Utrecht and Gravesend. About the year 1810 James Cropsey built a house on his farm 500 feet from that road, and opened a lane twenty feet wide terminating at each end in the road with a gate at each end and leading irregularly to the residences of three different persons situated along the lane, one of which belonged to Robert Speir. In 1852 Cropsey proposed to Speir to dispense with the lane and to substitute a straighter roadway sixty feet wide connecting at each end with the Old Mill road, and Speir assented 'Modifying 17 N. Y. State Rep., 727.

to the proposition, and for the purpose of carrying it out bought some land from Cropsey bounded upon the new road. In the early part of the year 1853 the fences were moved and the new sixty foot road was opened, and thereafter was used by the public gen erally. Cropsey and Speir, however, repeatedly declared at the time of the opening ard during subsequent years that the road was a private way belonging to them or to other owners of the land lying upon it, and that they had a right to close it whenever they saw fit. After the opening of that road, in the years 1853, 1866, 1868 and 1875, James Cropsey, as well as other grantors by several deeds conveyed lands bounded by the side of the road. James Cropsey conveyed to the plaintiffs' testator by several deeds the title to the land adjoining the road upon which the assessments mentioned in the complaint were levied, which lands are in the deeds bounded by lines, in terms "running along the line of said road."

In the latter part of the year 1862, a steam railroad was constructed and operated upon the center of the road with a single track until 1880, and afterward with a double track. The railroad was constructed under the general railroad act and was authorized by law to be constructed and operated on the road, and the owners of the land along the road consented to the con struction of the railroad thereon. The width of the road bed of the single track was about ten feet, and of the double track about twenty-two feet, and the entire superstructure of the railroad was not higher than the surface of the road, except the iron rails, which were about three inches high. The portion of the road occupied by the railroad tracks was not suitable for travel with. teams or vehicles; but the space on either side of the railroad was used by the public to drive or walk on, there being a foot path on either side of the road and an ordinary wagon track between it and the railroad, with room to turn out. In March, 1886, the plaintiff and the other owners of the property along the railroad deeded to the railway company land for another road-bed, for the purpose of having it remove its tracks from the road; and about August, 1886, the railway company removed its tracks and wholly removed from the road and ceased to use or occupy the same. Cropsey avenue was mapped and laid out pursuant to chapter 670 of the Laws of 1869 by the town survey commissioners of Kings county to the width of eighty feet, covering and including the sixty foot road in question. Under chapter 554 of the Laws of 1881 and the resolutions of the board of supervisors of Kings county passed in May, 1884, proceedings were instituted, and commissioners were appointed by the supreme court for the opening of the avenue. The commissioners, upon their maps annexed to their report, and in their deliberations and by their report, made awards only for the lands lying outside of the sixty feet and within the limits of the eighty foot avenue, and they did not make any award for the lands lying within the sixty feet, regarding that as already a public road by user, or prescription, or as a private way to the owners of the fee for which no award was necessary.