"They may take into account the business of the corporation, its property, the value of its actual assets, the amount and nature of its present and contingent liabilities, the amount of its dividends and the market value of its shares of stock in the hands of individuals. They may resort to any or all of these as to them seems best and they are not confined to one of them. They may take that test which they think will be most likely to give them the actual value of the stock, and they may disregard all the

others.

"The law. commits the matter to their judgment, and when they have exercised that it is subject to no review or correction except as prescribed by law." The precise doctrine of the case cited has been applied in this department in the case of the Central Park, etc. R. R. Co. v. Commissioners, 21 N. Y. State Rep., 350. The precise point involved here arose in that case and was passed upon.

It thus appears that the commissioners in making the estimate of which complaint is made acted within the line of their duty and their proceedings are not distinguished by the adoption of any improper rule of action or of control. It is conceded that the argument on behalf of the appellants is comprehensive, elaborate and ingenious, but it cannot avail them for the reason that the question has been considered and disposed of by the court of last resort, and it is not therefore open to discussion.

It may be said in conclusion that there is really no evidence in this case showing or tending to show that the value adopted by the respondents was excessive, as suggested by the learned counsel for the appellant, or that the deductions allowed by them were insufficient. Indeed it is not understood that the relator assaults the result but rather the methods adopted by the commissioners in assessing the value of the capital stock. But the methods were lawful, as we have shown, and there is therefore no reason for interfering with the judgment of the commissioners.

The order appealed from must be affirmed, with costs.
VAN BRUNT, P. J., and DANIELS, J., concur.

In the Matter of THE METROPOLITAN ELEVATED R. Co. (In re Jones et al.), Parcel of Oberfelder.

(Supreme Court, General Term, First Department, Filed January 13, 1891.) EMINENT DOMAIN-ELEVATED RAILROAD.

Where commissioners were appointed to ascertain the compensation to be made to owners for certain easements taken by the Elevated Railroad Companies of New York, and no exceptions were taken on the trial, and the report of the commissioners was confirmed, and there was evidence to support their findings, this court will not interfere.

THE special proceeding was commenced on September 20, 1889, by service on Tobias Oberfelder, the respondent, of the petition and notice of application for the appointment of commissioners. The petitioner, The Metropolitan Elevated Railway Company, is a domestic corporation organized and existing under and by virtue of the acts of the legislature of this state, being chap. 885,

Laws 1872, chap. 837, Laws 1873, chap. 275, Laws 1874, chap. 606, Laws 1875, and the acts amendatory thereof and supplemental thereto. The respondent, Tobias Oberfelder, purchased the premises in question, No. 140 First avenue, in this city in 1854, and ever since then has owned and occupied the same; these premises are eighty feet deep, and have a frontage of eighteen feet ten inches on First avenue. Upon this lot is erected a building of brick, four stories in height and eighty feet deep, fortysix feet six inches in height, eighteen feet ten inches in width on First avenue, and is used as a store and dwelling.

First avenue is one of the public streets of this city, and was opened under and by virtue of chapter 86, Laws of 1813, and the acts amendatory thereof and supplemental thereto. The elevated railway structure was constructed and the operation of the railway was begun by the petitioner, and since the year 1879 the railway has been maintained and operated by the petitioner and the Manhattan Railway Company, respectively, as lessor and lessee. The structure of the railway and the manner of operating the same is familiar to every resident of the city and is particularly described in the report of the commissioners.

In September, 1889, the Metropolitan Elevated Railway Company began these proceedings to acquire so much of the property, easements and other interests in First avenue appurtenant to or part of or constituting the street in front of the said premises as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner as the same is now constructed and maintained, etc., and as has been and may be required by reason of the operation of said railway with cars or trains of cars, etc. The respondent consented to the granting of the prayer of the petitioner and to the appointment of commissioners therefor; the order was entered appointing Messrs. Andrew H. Green, Dwight B. Olmstead and Edward C. Donnelly, commissioners "to ascertain and appraise the compensation to be made to the persons hereinafter specified as owners of premises respectively interested in the privileges, easements or interests taken by the petitioners herein for the purpose of its incorporation as described in the petition herein, to wit, the constructing, maintaining and operating its railway, including its roadway, tracks, etc., for its use as an elevated railway, and so long as the said streets or avenues or any of them shall be used or maintained as public streets, highways or thoroughfares, which said privileges, easements or interests are situate in the city and county of New York." The said property and real estate is further described as follows: So much of the property, easements or other interests in the streets and avenues respectively hereinafter named and intersecting streets appurtenant to or part of or constituting the streets in front of or alongside of the lots and premises hereinafter described respectively, as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner, as the same is now constructed and maintained, etc., and as is required by reason of the operation of said railway with cars, etc. N. Y. STATE REP., VOL. XXXVI. 29

These commissioners met and the proceedings were conducted by them in strict compliance with the provisions of the law gov erning these special proceedings; their report was duly made and filed on July 1, 1890. The important part of the report of the commissioners is as follows:

"Ninth. That the compensation to be made for so much of the privileges, easements and rights appurtenant to the said lot of land known as No. 140 First avenue, in the city of New York, as has been taken by and for the purpose of the petitioner in the manner that the same has been taken by the petitioner by the construction, maintenance and operation of the said railroad through First avenue, in front of the said lot, as herein before described, and in accordance with the plan hereto annexed, is the sum of seventeen hundred dollars ($1,700), etc." The order of the special term confirming this report was duly made and entered on July 9, 1890. From this order of confirmation the petitioner appealed to the general term of this court on July 21, 1890.

Davies & Rapallo, for app'lts; E. B. & C. P. Cowles, for resp`t.

BRADY, J.-No exceptions were taken by the appellants and the proceedings present only the questions, if any, which spring from them, namely, whether the respondent Oberfelder was entitled to an award, and if yea, whether the compensation given was so excessive as to be palpably wrong. The recorded testimony was in conflict to some extent on the subject involved, but, as the record does not necessarily give all the influencing circumstances, the whole case is not, it may be said, before us.

It is familiar law that in proceedings like these the commissioners are not, like other tribunals, to be governed exclusively by evidence, or confined to the strictness observed in common law actions in the receipt of evidence and can view the locus in quo. Aside from this it does not appear upon the record that the commissioners erred in the principles upon which they made their appraisal, a circumstance striking and impressive relating to that conclusion being the absence of exceptions. Both parties had an equal range of proof and the respondent was the successful party, and it cannot be said either that he was not entitled to damages or that the amount given was excessive. The facts showing a depreciation in the enjoyment of the respondent's premises and a diminution of their value were stated and reported by the commissioners to exist arising from the construction and use of the appellants' road and appliances. The proof showed that while the property in the immediate vicinity had since the respondent's pur chase of his premises increased twenty-five per cent, the respondent's had only increased ten per cent in consequence of the appellants' structure and the running of its locomotives. The commissioners gave less than these figures warranted however and this decreases the cause of complaint by the appellants. It is not at all difficult in these cases to build up theories upon which an appeal seems to be plausible or to advance others which may be the subject of examination in other cases, or to assume that the commissioners have considered improper items of damage, but

only questions which rest upon some tangible basis can be properly considered. In this brief review all is said that is deemed appropriate except that there has been nothing discovered which calls for a reversal. The order appealed from should therefore be affirmed, with costs.

VAN BRUNT, P. J., and DANIELS, J., concur.

LISETTE SPLIESS, Resp't, v. BERTHA MEYER, Impl'd, App'lt. (Supreme Court, General Term, First Department, Filed January 13, 1891.) PARTITION-PARTIES.

In an action for partition of the real estate of U., where plaintiff, an heir at law, was a tenant in common with some of the defendants, the defendant M. was made a party; and the complaint alleged that she claimed to be the widow of U., and as administratrix had collected rents of this real estate; that she claimed dower; that she was not U.'s widow and was never legally married to him. Held, that the defendant M. was a proper and necessary party defendant.

APPEAL from an interlocutory judgment overruling a demurrer to the complaint.

Antonio Knauth, for app'lt; J. C. Julius Langbein, for resp't.

DANIELS, J.-The action is brought by the plaintiff as one of the heirs at law of George Uehlinger, deceased, for the partition of his real estate. The complaint alleges that the defendant Bertha Meyer, calling herself Bertha Uehlinger, claims to be the widow of the deceased owner of the property, and entitled to dower therein. It is further averred that she is not the lawful widow of Uehlinger, and was never legally married to him, but as administratrix has collected and received the rents of his real estate. This defendant demurred to the complaint on the ground that it failed to state facts constituting a cause of action against her.

But it does appear from it that the plaintiff and two of the defendants were tenants in common of the real estate described in the complaint, and that this defendant claims to be entitled to an estate in dower therein, which is sufficient reason for making her a defendant. Code Civil Procedure, §§ 1538, 1539.

The fact that her right to dower in the premises may be controverted and thereby result in an issue for its trial, would not justify her omission as a party. For the practice in actions of partition has been so far changed as to provide for the trial and determination of this as well as other classes of disputes concerning the title to the estate to be partitioned. Claims arising out of transactions connected with the same subject of action may now be united in the same action, whether they be legal or equitable or both. Id., § 484, subd. 9. The object is to provide for a complete determination of the controversy, and to clear it up entirely, so far as it is connected with the same subject. And that is the nature of the claim made for dower in this property by this defendant. It has also been particularly and further provided that adverse claims of title or interest in the property may be tried in the action of partition. Id., § 1543. And for that

object a trial by jury has been provided. Id., § 1544. And the interlocutory judgment is required to declare the right, share or interest of each party in the property, so far as the same shall be ascertained, and it must determine the rights of the parties therein. Id., 1546. And for that determination this defendant is a necessary party. It could not be made without affording her an opportunity to be heard.

These further and special provisions are consistent with no other conclusion than that the rights and interests of the different parties in the property were intended to be tried and defined in the action. For all the necessary modes of proceedings have been carefully supplied and directed to be followed for the attainment. of that end. And so they have been regarded by the courts. Hulse v. Hulse, 23 N. Y. State Rep., 123; Brown v. Brown, Id., 768; Shannon v. Pickell, 2 id., 160. These changes, as they are now contained in the Code of Civil Procedure, and so far as they had previously been made by 3 R. S., 6th ed., 586, §§ 20-27, do not appear to have been brought to the notice of the court in the case of Van Schuyver v. Mulford, 59 N. Y., 426. And that authority cannot, therefore, be followed as controlling. But as the provisions of the statute have been made applicable, fully authorizing and requiring the settlement by trial of contested claims, they are imperative and must be followed. This case is clearly within these changes in the law. And the judgment should be affirmed, with costs, but with liberty to the defendant to withdraw her demurrer and answer within twenty days upon payment of the costs of the demurrer and of the appeal.

VAN BRUNT, P. J., and BRADY, J., concur.

LILLIAN STAHL, Resp't, v. RICHARD STAHL, App'lt.

(Supreme Court, General Term, First Department, Filed January 13, 1891.) 1. DIVORCE-ALIMONY-DECREE.

Where a judgment of divorce provides that if the plaintiff survived the defendant, or the circumstances of the parties should materially change, an application might be made at the foot of the judgment for a modification as to the allowance for support, the decree is not a final judgment as to alimony, and the same may be increased.

(Kamp v. Kamp, 59 N. Y., 212, distinguished.)

2. SAME.

Under such a decree the allowance may be increased by the consent of the defendant.

3. SAME-PROVISION AS TO EXECUTION.

A provision in such a decree for execution against the defendant in case the alimony was not paid cannot be stricken out on motion, but is reviewable only on appeal. Such provision could not injure the defendant, as, in any event, the statutory provisions would have to be observed if the execution was to be enforced against his person.

4. SAME.

A motion to set aside an ex parte order for the issue of process against the defendant is premature where it does not appear that any execution or process against his person has been issued.

APPEAL from an order of Andrews, J., denying an application to set aside a commitment of the defendant herein, to vacate the