THE

NEW YORK STATE REPORTER.

LOUISE DUDLEY CARTER, App'lt, v. WILLIAM J. FERGUSON,

Resp't.

(Supreme Court, General Term, First Department, Filed December 31, 1890.) 1. INJUNCTION-BREACH OF CONTRACT.

To warrant the granting of a preliminary injunction to restrain the violation of a contract it should be made to appear that the plaintiff has no adequate remedy at law.

2. SAME-ACTORS.

While an injunction may be granted to prevent actors from performing for other parties when they have undertaken to play only for the plaintiff, the exercise of jurisdiction to grant the same should be limited to cases where the artistic abilities of the defendant are exceptional so that his place cannot be readily supplied.

APPEAL from order denying motion for a preliminary injunction to restrain the defendant from breaking a contract binding him to perform as an actor exclusively for the plaintiff.

Abe H. Hummel, for app'lt; A. J. Dittenhoefer, for resp't.

BARTLETT, J.-In order to warrant the granting of a preliminary injunction to restrain the violation of a contract, it should be made to appear that the plaintiff has no adequate remedy at law. The inadequacy of the legal remedy is the test as to whether the defendant should or should not be restrained in the class of cases to which the present suit belongs. The English courts and our own have frequently granted injunctions, pendente lite, to prevent actors from performing for other parties when they have undertaken to play only for the plaintiff; but the exercise of this jurisdiction has usually been confined, and ought in our judgment always to be limited, to cases where the artistic abilities of the defendant are exceptional, so that his place cannot readily be supplied; for it would seem to be only under such circumstances that irreparable damage can be occasioned to the plaintiff.

As is well said by Mr. Pomeroy: "Where a contract stipulates for special, unique or extraordinary personal services or acts, or for such services or acts to be rendered or done by a party having special, unique or extraordinary qualifications, as for example, by an cminent actor, singer, artist and the like, it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might N. Y. STATE REP., VOL. XXXVI. 1

enable him to obtain the same or the same kind of services or acts elsewhere, or by employing any other person." 3 Pomeroy's Equity Jurisprudence, § 1343. The general term of the third department, commenting upon this passage, points out that the jurisdiction to interfere by injunction approved therein is confined to cases of special, unique and extraordinary qualifications on the part of the defendant, and Learned, P. J., remarks: "It can readily be seen that the court might restrain by injunction a great actor from playing at another theatre in violation of his contract, while it would not restrain a salesman from quitting his employer before his contract had expired, even though under the contract he were to be paid a percentage on sales." Bronk v. Riley, 50 Hun, 489; 20 N. Y. State Rep., 401.

Now it is in no wise derogatory to the defendant in this case to say that he is not shown to be actor of special, unique or extraordinary qualifications. His own counsel on this appeal expressly asserts that the defendant is not a star or attraction of the company, or even a prominent member thereof.

However capable an actor the defendant may be, he has not yet. achieved distinction. He does not seem to have been engaged to perform the part of what is known as the leading man in the plaintiff's company, his name appearing only third in the published list of the performers who were to act with Mrs. Carter. The affidavits do not satisfy us that his failure to keep his contract with her, or his appearance in violation of that contract at another theatre, has done or will do her any irreparable injury, or any damage incapable of being ascertained in an action at law. For these reasons, without considering the others urged by counsel, or referred to by the court below, we think the application for an injunction was properly denied.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

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

JOHN M. KNOX et al., Ex'rs, Resp'ts, v. THE METROPOLITAN ELEVATED R. Co. et al., App'lts.

(Supreme Court, General Term, First Department, Filed December 31, 1890.) 1. PLEADING-PARTIES.

Where the averments in a complaint are sufficient to affix to the plaintiffs their proper representative character, an erroneous description thereof in the caption is immaterial.

2. WILL-TRUST-SUSPENSION OF POWER OF ALIENATION.

The absolute power of alienation is not unlawfully suspended by the consolidation of an estate into one trust, so long as it is a trust for distribution and payment to each beneficiary, or class of beneficiaries, upon the event specified in the will. In such case, the trustees are vested with the whole estate, just as tenants in common of a piece of real estate are so vested, but the legal rights of each cestui que trust are separate and distinct.

3. TRESPASS-ACTION BY EXECUTORS AND TRUSTEES.

In an action brought by the executors and trustees under a will, the right to damages for a continuing trespass is not affected by the death, pending the action, of one of the cestuis que trust under the will, where

such damages sought are for trespasses during the lifetime of the cestui que trust.

4. SAME-RAILROADS.

In an action brought by executors and trustees for past damages sustained by the construction and operation of an elevated railroad, and for an alternative injunction to restrain its further maintenance and operation, plaintiffs may recover as executors for the loss of rental value in the testator's lifetime, and as trustees in their executorial capacity vested with the fee, such damage as resulted from the loss of rental values after testator's death.

5. SAME-LIMITATION.

There can be no limit to an action for a continuing trespass, whether such actions be legal or equitable, short of the twenty years from which a grant is presumed.

6. SAME.

Where such a structure as the elevated road is authorized by law, the property owner cannot complain of it per se, and his only remedy is for the failure to offer him some due compensation, or to condemn his property under the right of eminent domain.

7. SAME ESTOPPEL.

Acquiescence by property owners in the construction of the elevated road is not acquiescence in the appropriation of their easements without just compensation,

8. SAME.

Property owners injured by the construction of the elevated roads, as they cannot maintain ejectment for the easements taken, nor to secure the value of the easements in actions for trespass for the damages sustained day by day, are remitted to an action in equity to restrain the continuous trespass as the only remedy whereby just compensation for the property taken can be compelled.

9. JUDGMENT.

A judgment will not be reversed because of inconsistent conclusions of law, where the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.

APPEAL from a judgment rendered at special term in favor of the plaintiffs for past damages sustained by the construction and operation of the elevated railroad, and, for an injunction nisi to restrain its further maintenance and operation.

E. C. James, for app'lts; J. E. Burrill, for resp'ts.

BARRETT, J.-It is contended that the plaintiffs cannot maintain this action because in the caption of their complaint they have styled themselves "as executors," and not "as trustees.' In the body of the complaint, however, they set forth the testator's will, and allege the devise of the property in question (under the residuary clause) to his executors in trust to divide the same into eight equal parts, and to hold one of said parts for the benefit of each of eight grandchildren during his or her natural life, and to receive the rents, issues and profits thereof, and to apply the same to the use of such grandchild during his or her natural life. It was proper, under such circumstances, to describe the plaintiffs as "executors." They are ex officio invested with the title for trust purposes, and as such they are entitled to maintain the action. Were it otherwise, the averments in the complaint are sufficient to affix to the plaintiffs their proper representative character, and when that appears in the body of the complaint an erroneous de