3. SAME.

An executor is bound to carry out an agreement made by his testator with a tenant to rebuild in case the building is destroyed by fire.

4. SAME-EXPERT TESTIMONY-ARCHITECT.

The testimony of an architect is admissible to show the time it should take to do certain work, and whether such work could be done in a certain time without dangerous haste.

APPEAL from judgment of the supreme court, general term, third department, modifying and affirming a judgment in favor of plaintiff entered upon the report of a referee.

Burdick & Burdick, for app'lt; Isaac Lawson, for resp't.

PECKHAM, J.-None of the grounds argued by the counsel for defendant is sufficient to call for a reversal of this judgment.

(1) The lease was properly extended in the manner provided for by its terms and was recognized as a valid and existing lease up to the death of the testator, at which time nearly one-half of the extended period had expired.

The lease provided for an extension of its term by two years, provided the lessee, three months before the expiration of the original five years, gave a written notice to the lessor of his desire to extend the lease for that further period. This the lessee did. Because he made a suggestion in that notice, that if the lessor chose they would regard the lease as extended two years and a half, had no bearing upon the sufficiency of the written notice, and the refusal of the lessor to grant the extra six months extension acknowledged the right of the lessee to the two years provided for by the lease itself.

(2) The lessee of the original lease never either in fact or in law surrendered it by reason of what took place in regard to the execution of the lease by Wallace on the part of the heirs-at-law. The facts show there were a widow and several heirs-at-law, and that the widow had a right of dower in the premises, and that one of the heirs-at-law at the time of the execution of the lease by Wallace, as the agent of the heirs, was an infant. The lease purported to grant the interest of the heirs in the premises from the first of the coming May, for five years. The evidence is uncontradicted that the agreement between plaintiff and Mr. Wallace was that the plaintiff should have all the interest of all the parties in the premises for the five years, and that when the plaintiff executed the lease he had no personal knowledge as to who succeeded to the interest of Robert Dunlop, and he supposed that the lease covered the interest of all parties having an interest in the premises.

It is also in proof and found by the referee that the widow had a right of dower in the premises. She did not sign the lease and neither her interest nor the interest of the infant passed under it. The very day the lease was received, signed by Wallace as agent, the fire occurred. It is obvious that the plaintiff did not secure by the lease the interest which he had provided for by his agree ment with Mr. Wallace. The dower of the widow was outstanding and the interest of the infant was not affected by the lease.

The original lease was not surrendered for the reason that the new one did not give plaintiff the interest he contracted for and which he thought he was acquiring. Under such facts the cases hold there is no surrender. Whitney v. Meyers, 1 Duer, 271; Schieffelin v. Carpenter, 15 Wend., 405; Coe v. Hobby, 72 N. Y., 146.

This is not the case of a lease of one tenant in common to a stranger, purporting to convey the whole interest in the land, and an entry by the lessee under it, and an acquiescence by all the other tenants in common. There was never a valid acceptance of the new lease. The agreement provided for the conveyance of the whole interest to the plaintiff and the parties failed to convey all of such interest, and the plaintiff never accepted such lease with knowledge that it did not fulfil the terms of the agreement, and there was never any entry under the lease, and before the time arrived at which the lease by its terms was to become operative, the property was not in existence, having been destroyed by fire. Hence the original lease remained in full force.

(3.) The defendants moved for a non-suit upon the grounds, among others, that the executor had no power to rebuild and no control over the heirs at law to make them rebuild, and also because on the death of the lessor the plaintiff paid rent to, and held under the heirs at law, and not under the defendant executor. There is no finding by the referee as to the last alleged fact, and the evidence does not show that such is necessarily the fact. It rather shows the contrary. As to the first ground, that the execu tor had no power to rebuild, I think the authorities are clearly the other way.

The presumption is that the party making a contract intends to bind his executors and administrators, unless the contract is of that nature which calls for some personal quality of the testator, or the words of the contract are such that it is plain no presumption of the kind can be indulged in. Tremeene v. Morison, 1 Bing. N. C., 89; Reid v. Tenterden, 4 Tyrwhitts, 111; Kernochan v. Murray, 111 N. Y., 306; 19 N. Y. State Rep., 491. Where a party has entered into a contract to purchase real estate and dies before it is conveyed to him and before he has paid for it, his heir or devisee is entitled to have his executor pay for the realty out of the personal estate. Broome v. Monck, 10 Ves., 596, 611; Re-argued, 619; Livingston v. Newkirk, 3 John. Ch., 312; Wright v. Holbrook, 32 N. Y., 587; 1 Sugden on Pow., 293, 8th Am. ed.; 3 Red. on Wills (2d ed.), 302, 11.

The executor is not permitted to violate the contract of his testator after the latter's death. Wentworth v. Cock, 10 Ad. & EL, 42; Siboni v. Kirkman, 1 M. & W., 419; remark of Parke, B. In Quick v. Ludburrow, 3 Bulst., 30, Lord Coke said that if a man be bound to build a house for another before such time, and he which is bound dies before the time, his executors are bound to perform this. To same effect Tilney v. Norris, 1 Ld. Raym., 553; Tremeene v. Morison and Reid v. Tenterden, supra. If the testator devise his land to other parties, the executor still remains liable on the covenant of his testator. If the

devisees do not permit the executor to build, the covenant is broken, and it is the act of the devisor in devising his property thus that prevents the executor from fulfilling.

If the land descend to the heir, then the covenant still remains in force, and if it should be that the executor could not force the heir to permit the building, still the estate is liable on the covenant, and the executor must pay the damages if he have assets. The judgment here is only against him as executor, and is fully warranted in law.

(4.) The exceptions to the rulings of the referee in the admission or rejection of evidence are not tenable. The value of the lease for the time the plaintiff would have been in possession after the premises were rebuilt and before the lease had expired, was properly testified to by the plaintiff. It was a matter of opinion to some extent, based upon facts, all of which he had testified to, and his experience and knowledge were more than that of any other person in regard to the very question which was asked. The evidence of Fleischman was properly admitted. He was an architect and to some extent, therefore, familiar with building and the time it should take to do certain work, and with the fact whether the work could be done in a certain time without dangerous haste.

We are unable to find any fair reason for disturbing this judg ment, and it should be affirmed, with costs.

All concur.

THE PEOPLE, App'lts, v. THE BROADWAY R. CO. OF BROOKLYN,

Resp't.'

(Court of Appeals, Filed March 10, 1891.)

1. RAILROADS-FORFEITURE FOR FAILURE TO CONSTRUCT BRANCHES.

66

Defendant was organized under chap. 303, Laws 1858, and the general railroad act, and constructed its road within eighteen months upon the route specified, for about four miles and a half. By chap. 461, Laws 1860, it was authorized to construct three branches as specified, and also whenever certain streets should be opened, graded and paved to extend tracks through them. It was also to complete the branches by October 1, 1861, or as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any planked road or roads, whenever the consent of the plank road companies shall have been obtained." In 1861 defendant had laid a mile and a half of tracks through certain streets and operated them until 1876, when it removed the tracks and never since maintained or operated any road therein. In 1887 it laid 3.000 feet of tracks on Central avenue, but never operated cars thereon. A number of the streets named had been opened, graded and paved during the interim. Held, that it was the intention of the act of 1860 that the road was to be extended as the streets were opened and graded and the consent of the plank roads obta ned, and that defendant was bound to build roads on the paved streets before October 1, 1861, and upon the other streets when they were opened, graded and paved, and not having done so that it had forfeited its franchise.

2. SAME.

Chap. 598, Laws 1875, and chap. 598, Laws 1879, giving an extension of time for any railroad company which had been unable to construct its road, do not apply to defendant, as it had commenced the construction of its road.

'Reversing 29 N. Y. State Rep., 343.

APPEAL from judgment of the supreme court, general term, third department, reversing judgment of forfeiture of franchises, granted by chap. 461, Laws 1860, and perpetually enjoining defendant from their exercise.

This action was commenced in May, 1888, to have declared forfeited, for non-user, the franchises obtained by the defendant under chap. 461 of the Laws of 1860, in certain streets of the city of Brooklyn. The defendant interposed an answer to the complaint, and the action was brought to trial at a special term, where judgment was rendered forfeiting the franchises as prayed in the complaint. From that judgment the defendant appealed to the general term, where the judgment was reversed and an absolute judgment was given for the defendant dismissing the complaint, and then this appeal on behalf of the People was taken to this court. The material facts appear sufficiently in the opinion. Benj. F. Tracy and Jesse Johnson, for app'lts; Geo. W. Wingate and Thos. S. Moore, for resp't.

EARL, J.-The defendant was organized in pursuance of the act, chap. 303 of the Laws of 1858, under the general railroad act, and it was required to complete its road through the streets mentioned in the first section of the act within eighteen months from the passage of the act. It constructed its road within the the time mentioned upon the route specified, a distance of about four miles and a half. In April, 1860, the act, chap. 461 of the laws of that year, was passed, § 1 of which is as follows:

"It shall be lawful for the Broadway Railroad Company of Brooklyn, organized by virtue of the act hereby amended, to lay down a single line of railroad track, commencing at their present track at South Sixth street, through Eighth street, to and across Broadway, to Ross street, and double line of railroad tracks through said Ross street and Bedford avenue to Fulton avenue; and whenever Nostrand or Rogers avenue shall have been legally opened, graded and paved, to extend the line of double tracks through Fulton and either Nostrand or Rogers avenue to the village of Flatbush. Also, to lay a single line of railroad track, commencing at their present track on South Sixth street, through Eleventh street to South Fifth street; through South Fifth street to Montrose avenue; through said avenue to Morrell street; through Morrell to Johnson street; through Johnson street to intersect the track of said company on Broadway, and a double line of tracks from Morrell street, through Johnson, to its intersection with the Cypress Hills plank-road, and through and over said plank-road to Cypress avenue; and whenever Cypress avenue shall have been legally opened and graded, to extend a double or single track on said avenue to Cypress Hills Cemetery. Also, whenever White, Bogart or Thames streets, and Central or Knickerbocker avenue, shall have been legally opened and graded, the said company are authorized to lay a double or single line of railroad track through and over the same to the city line, from the intersection of either White or Bogart streets with the Cypress N. Y. STATE REP., VOL. XXXVI. 48

Hills plank-road, and the track hereinbefore authorized to be laid on said plank-road, with the privilege to lay tracks for the neces sary turnouts, which tracks, when laid, shall be maintained and operated by said company in conformity to the several provisions of the act hereby amended relative thereto." And § 3 of the act is as follows:

"Said railroad company shall complete the tracks upon the said several streets and avenues or roads named in the first sec. tion of this act on or before the first day of October, eighteen hundred and sixty-one, or as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any planked road or roads whenever the consent of the plank-road companies shall have been obtained."

The defendant accepted the act and the franchises and rights thereby given, and assumed the obligations thereby imposed. At the time of the passage of the act of 1860 Eleventh street from South Sixth street to South Fifth street, South Fifth street from Eleventh street to Montrose avenue, Montrose avenue from South Fifth street to Morrell street, Morrell street from Montrose avenue to Johnson street, and Johnson street from Morrell street to Broadway, were city streets opened, graded and paved and trav eled and in use as such. The aggregate length of such streets was about one mile and a half. In the fall of 1860, the defendant constructed a single line of railroad tracks through such streets, and began to operate the same with cars on the 1st day of March, 1861; and so it continued until in the year 1876, when it removed its tracks from those streets, and it has never since maintained or operated any road therein. In 1887, the defendant commenced the construction of its road on Central avenue, and expended in so doing upwards of $12,000, and laid upwards of 3,000 feet of tracks, when it was stopped by adverse litigation; but upon the tracks thus laid it has never operated any cars.

It thus appears that during the twelve years prior to the commencement of this action the defendant did not maintain or operate a railroad upon any of the routes mentioned in the act of 1860, and that during twenty-eight years prior to the commencement of this action it did not attempt to build or maintain any railroad upon any of the routes mentioned in the act of 1860, except as above mentioned.

The claim on the part of the plaintiffs is that for the non-user of the franchises conferred upon the defendant by the act of 1860, and for its neglect to perform the obligations assumed by it under that act, it forfeited all its rights and franchises under the act; and so it was held at the special term.

The defendant claims that it was not bound to build its road upon any one of the routes mentioned in the act until the streets upon such route were opened, graded and paved so that the road could be constructed upon the whole routes and, therefore, that it had not forfeited any of its franchises; and so the general term held, and reversed the judgment of the special term.

The general and special terms differed as to the construction of the act of 1860, and as the real merits of the controversy between