scription in the caption is immaterial. Stilwell v. Carpenter, 2 Abb. N. C., 238; Beers v. Shannon, 73 N. Y., 297.

It is also claimed that the plaintiffs did not take title under Mr. Clark's will, or rather that their title was deferred until the actual partition of the estate into eight parts, and that until such division the fee passed to the heirs-at-law, subject to the execution of the power to divide, etc. This is an inaccurate view of the legal effect of this will. Under the sixth clause, the residue of the estate, real and personal, was devised to these executors "in trust to receive the rents, issues and profits thereof, and to apply the same to the use of Mr. Clark's grandchildren during their respective natural lives, one share being held in trust for each grandchild." Under this clause the executors took the whole estate, in law and in equity, subject only to the execution of the trust. This is entirely consistent with the creation of eight separate trust estates. In law, the separation of the trust estates is effected by the provisions of the will, and this is not dependent upon an actual division or partition in specie. Prior to such actual division or partition, the executors in their trust capacity are vested with each of the undivided eight shares in trust for each of the eight grandchildren, and thus they are vested with the whole. 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 events specified in the will." Wells v. Wells, 88 N. Y., 332, 333; Monarque v. Monarque, 80 id., 324; Stevenson v. Lesley, 70 id., 515. In such a case the trustees are vested with the whole estate, just as all the 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.

The plaintiffs' rights are not affected by the death of one of these eight grandchildren (Mary C. Leroy) subsequent to the commencement of this action. Damages were not awarded to the plaintiffs for trespasses committed after Mary C. Leroy's death. Such damages were limited to the time of the commencement of the action. The plaintiffs were clearly entitled to all these damages. As executors, they were entitled to such as resulted from loss of rental values in the testator's lifetime. As trustees, in their executorial capacity, vested with the fee, they were entitled to such as resulted from loss of rental values after the testator's death. And in such an action as the present they could recover in both capacitics. Shepard v. Manhattan Railroad Company, 117 N. Y., 443; 27 N. Y. State Rep., 705. Upon the issues as they stood at the time of the trial, they were also entitled to an injunction. There was no plea of a defect of parties, and no injustice was done by a refusal to permit the cause to stand over to enable the defendants to raise this technical point.

Upon the death of Mary C. Le Roy the undivided share held in trust for her passed under Mr. Clark's will to the other seven grandchildren. The court provided that the injunction, to which the plaintiffs were absolutely entitled under the pleadings as they stood, should not go into effect unless, upon the defendants' tender

The

of the adjudged value of the easements, there was delivered to them a proper conveyance duly executed by all of these seven grandchildren, as well as by the executors and trustees. court thus made ample and even superfluous provision against any possible prejudice to the defendants resulting from the failure to make these seven grandchildren parties. We say superfluous, because the plaintiffs, even after the vesting of Mary C. Le Roy's share in these seven grandchildren, had a power of sale entirely sufficient to confer upon the defendants a perfect title to these

easements.

There is nothing in the point as to the statute of limitations. The trespasses are continuous and a cause of action accrues daily. The equitable cause of action which accrued ten years ago resulted from the continuous trespasses then committed. The present cause of action is based upon the continuous trespasses of to-day. There can be no limitation to such actions, whether legal or equitable, short of the twenty years from which a grant is presumed.

There is no greater force in the claim of acquieserce, and the cases cited by the appellants on that head (including specially Hentz v. Long Island Railroad Company, 13 Barb., 655; McAulay v. Western Vermont Railroad Company, 33 Vermont, 311; Goodwin v. C. & W. Canal Company,18 Ohio State, 169) are entirely inapplicable. They proceed either upon the doctrine of estoppel or upon the principle that an injunction should not be granted until all the ordinary means for obtaining indemnity have failed. The rule governing estoppels is clearly inapplicable. To constitute an equitable estoppel there must have been some act or admission by the party sought to be estopped inconsistent with the claim he now makes and done or made with the intention of influencing the conduct of another, which he had reason to believe would and which did in fact have that effect. Silence will not estop unless there is not only a right but a duty to speak. N. Y. Rubber Company v. Rothery, 107 N. Y., 310; 12 N. Y. State Rep., 53. In Campbell v. Seaman, 63 N. Y., 568, it was held that no acquiescence short of twenty years will bar one from complaining of a nuisance, unless by some act or omission he has induced the party causing the nuisance to incur large expenditures or to take some action upon which an estoppel may be based. See also Haight v. Price, 21 N. Y., 246. In Chapman v. City of Rochester, 110 N. Y., 277; 18 N. Y. State Rep., 133, the question of estoppel by acquiesence was also considered. The city had there constructed sewers in such a manner as to render the water in a creek above the plaintiff's land unfit for use. Danforth, J., speaking for the court, said that the plaintiff was not estopped by acquiescence in the proceedings of the city in devising and carrying out its system of sewerage. "It does not appear," he observed, "that the plaintiff in any way encouraged the adoption of that system, or by any act or word induced the city authorities to so direct the sewers that the flow from them should reach his premises.'

The defendants' structure, being authorized by law, is not a nuisance, but for that very reason the rule enunciated in Campbell v. Seaman, and Chapman v. City of Rochester, should be ap

plied, and applied even more stringently than in the case of a nuisance. Where the structure is authorized by law the property owner cannot complain of it per se. His only complaint is of the failure to offer him due compensation or to condemn his property under the right of eminent domain. In the present instance, it cannot truly be said that the property owners stood by and permitted large or any sums to be expended on the faith of their apparent acquiescence. Acquiescence in what? In the building of the road? Yes, but even as to that the word resignation would better express the property owner's condition. Not, however, in the taking of their property without compensation. The elevated railroad was constructed with the clear understanding that there was no such acquiescence. It was constructed, as already suggested, under legislative authority, authority claimed to be sufficient to entitle the promoters of the enterprise to appropriate these easements without compensation. The property owners saw the road built regardless of their wishes and in defiance of their rights. It has been repeatedly held, and it is sound doctrine, that failure to assert their rights while the road was in process of construction did not under the circumstances work an estoppel. The promoters of the railroad proceeded in reliance upon what they supposed to be the law, see Powers v. Manhattan Railway Company, 120 N. Y., 178; 30 N. Y. State Rep., 584, not at all in reliance upon the property owners' inaction. And the latter's acquiescence was, as we have seen, only in the construction of the road under legislative authority, nct in the appropriation of their easements without just compensation. The road was built in the year 1878, and it was not until the year 1882 that the court of appeals finally decided that compensation was a right. Story v. N. Y. Elevated Railway Company, 90 N. Y., 122. Even after this decision, the property owner had no direct means of compelling compensation. He cannot apply under the act with regard to condemnation proceedings, nor can he compel the corporation to apply. He certainly cannot maintain ejectment for the easements of light, air and access. Nor can he secure the value of his easements in actions of trespass for the damages sustained day by day. Pond v. Metropolitan Elevated Railway Company, 112 N. Y., 186; 20 N. Y. State Rep., 479. "A recovery of judgment for damages for a trespass or the invasion of an easement," said Andrews, J., in the Pond case, "does not operate to transfer the title of the property to the defendant, either before or after satisfaction, nor does it extinguish the easement."

The only remedy then whereby just compensation for the property taken can be compelled is an action in equity to restrain the continuous trespasses. To deprive the plaintiffs of an injunction nisi would therefore be to leave them remediless in that regard. It would be to admit the existence of a distinct wrong without a specific remedy, and it would also be to permit the possibilty of the wrong ripening by presumption into a right. It was held in Campbell v. Seaman, supra, that under our present system the right to an injunction in a proper case is just as fixed and certain

as the right to any other provisional remedy. It is no longer a matter of grace, "except," as Earl, J., observed, "that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. It can rightfully be demanded to prevent irreparable injury, interminable litigation and a multiplicity of suits.

We think, therefore, that the remedy by injunction was properly granted in the present case.

The only other point calling for special consideration is that based upon the seeming inconsistency in the conclusions of law found by the learned judge at special term.

In the fifteenth and sixteenth findings of fact, the learned judge finds the diminution of the rental value of the plaintiffs' premises, caused by the erection, maintenance and use of the defendants' railroad, from the 14th day of June, 1883, to the 14th day of June, 1889. In the first conclusion of law he finds that the plaintiffs are entitled to recover from the defendant the damages awarded by these findings of fact.

At the request of the defendants, however, he found in the fourth conclusion of law that the plaintiffs are not entitled to recover any damages in this action which accrued prior to the death of their testator on the 11th of July, 1884. This was plainly an inadvertence. The learned judge had already found, and correctly, that the plaintiffs were entitled to recover these very damages. If the inconsistency had been in the findings of fact, the appellants might have invoked the rule that where such findings are irreconcilable, those most favorable to them should be taken. Redfield v. Redfield, 110 N. Y., 673; 18 N. Y. State Rep., 560. There is, however, no inconsistency in the facts found, and upon these there can be no doubt as to the proper conclusion of law. It is that the plaintiffs are entitled, as found in the first conclusion of law, to recover the sum specified in the fifteenth and sixteenth findings of fact. We agree with the superior court in Welsh v. Metropolitan Elevated Railway Company, 57 Super. Court Rep., 411; 29 N. Y. State Rep., 511 (Ingraham, J., writing the opin ion), that, "no principle requires us to reverse a judgment because of inconsistent conclusions of law when the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found."

The sums awarded for past damages and allowed for the value of the easements were reasonable. We have examined the evidence on this head and see no reason for disturbing the findings of the learned judge at special term.

And we are at a loss to understand what the appellants mean by the assertion in their brief that these sums have been awarded arbitrarily and without evidence to sustain them. Such assertions are gratuitous and without justification in the record. The judgment should be affirmed, with costs.

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

THE NEW YORK LIFE INSURANCE Co., App'lt, v. JAMES AITKIN, Ex'r, Resp't.

(Court of Appeals, Filed February 24, 1891.)

1. MORTGAGE-ASSUMPTION OF, IN DEED-RELEASE.

In 1868 Phoebe T. Drew and husband mortgaged property in New Jersey to plaintiff for $4,000. In 1869 they conveyed the premises to John Gregg, and in 1870 Gregg and wife conveyed to Helen E. Aitkin, she assuming in the deed the payment of the mortgage, and remaining in possession until 1873 when she sold to Rathbone who also assumed the mortgage, and Mrs. Aitkin moved to New York and died there in 1875, leaving a will in which her husband was named as executor. The mortgage being foreclosed in September, 1880, resulted in a deficiency, and in September, 1888, defendant Aitkin procured from Gregg, who was insolvent, a release from the covenant of assumption in the deed to Mrs. Aitkin, and upon this action being brought upon such covenant set up among other things said release. Held, that the release did not discharge defendant from the covenant of assumption made by his wife, either under the law of this state or that of New Jersey, as the covenant had come to the attention of plaintiff and been adopted by it, and that plaintiff might recover in this action the money still due on the mortgage.

2. SAME.

An action at law may be maintained upon such a contract. 8. SAME.

The release being set up in the answer, but not as a counterclaim, it was not necessary for plaintiff to reply, and it was entitled to meet the answer by any competent evidence to defeat or avoid its allegations.

4. SAME-CODE CIV. PRO., § 1628-LEAVE OF COURT.

Section 1628 of the Code Civ. Pro., requiring leave of the court to bring an action to recover part of the mortgage debt after final judgment, has reference solely to a foreclosure conducted in this state, and the leave must be obtained in this state.

APPEAL from judgment of the New York superior court, general term, overruling plaintiff's exceptions and ordering judgment for defendant on the opinion of the trial judge.

December 3, 1868, Phoebe T. Drew and John G. Drew, her husband, of Elizabeth, N. J., executed their bond conditioned for the payment to the plaintiff of $4,000 one year from the date thereof, and as collateral security therefor at the same time executed to the plaintiff a mortgage on certain premises in Elizabeth, N. J. On the 15th day of December, 1869, Mrs. Drew and her husband conveyed the mortgaged premises to John Gregg by a deed wherein the grantee covenanted and agreed to pay the mortgage above mentioned. On the 28th day of December, 1870, Gregg and his wife conveyed the mortgaged premises to Helen E. Aitkin, by a deed which contained an assumption clause in the following words: "And this conveyance is made subject, nevertheless, to the lien of a certain mortgage made and executed by the said party of the first part to the New York Life Insurance Company, bearing date the 3d day of December, 1868, to secure the sum of four thousand (4,000) dollars, lawful money of the United States, with interest thereon, which mortgage, fcrming a part of the consideration money hereinbefore expressed, and hav' Reversing 32 N. Y. State Rep., 1138.