Statement of the Case. reason of their participation in or approval of the mismanagement, from insisting upon it, and in the case of the plaintiff, and the defendants, Ellen F. Flagg, Charles Earle and John Jardine, as administrator of Mary E. Jardine, deceased, who have joined in the plaintiff's prayer for relief, it is clear that no such estoppel exists. Unless, therefore, Charles B. Dodd is such a necessary party to this action that without his presence the relief prayed for cannot be granted, the plaintiff and the three defendants named are entitled to the accounting sought, both as to the fund of $106,702.95, and the fund of $74,741.09, for they have an interest in both, though a different one in each. Upon this point the evidence shows that Charles B. Dodd, at the time of the decease of the testator, was a resident of Hartford, Conn.; that shortly thereafter he came to the city of New York, and took part in the administration of the estate; that shortly after the executors, accounting and the decree of the surrogate made therein, he returned to Hartford; that almost immediately thereafter, and on or about May 31, 1861, by reason of his removal from the State, the surrogate of New York, on the application of Morris D. Earle, made an order by which the letters testamentary to the said Charles B. Dodd were superseded and his authority and right to act as executor revoked, without prejudice, however, to the rights of the defendants, William P. Earle and Mary E. Earle, as continuing executor and executrix, and that from that time Charles B. Dodd wholly ceased to act in any character whatever. Under these circumstances and the trusts created by the will being attached to the office of the executors, as already shown, Charles B. Dodd may be deemed, upon the revocation of the letters to him, to have renounced the said trusts, and his discharge by the court as trustee was not necessary, but the whole trust estate became Per Curiam. vested in the defendants, William P. Earle and Mary E. Earle as continuing executor and executrix (In the Matter of Bull, 31 How. Pr. 69; Beekman v. Bonser, 23 N. Y. 298; In re Stevenson, 3 Paige, 420). Moreover, it affirmatively appears, and it is conceded, that up to the time of the revocation of the letters of Dodd there was no loss; that none subsequently occurred by reason of investments made prior to that time; that, so far as he had participated in making investments, he had been careful and diligent, and that while he had discharged his duties, he had discharged them faithfully. Moreover, the revocation of the letters to him seems to have been considered by all parties as a termination of his right to act in any capacity. Upon the whole case, therefore, and the liability of executors and trustees, based upon a breach of duty or trust, being a joint and several one, Charles B. Dodd is not a necessary party to this action. There must be judgment directing the defendants, William P. Earle and Mary E. Earle, to account in the manner, to the extent, and upon the principles set forth in my findings of fact and conclusions of law. John M. Martin and F. N. Bangs, for appellant. Carlisle Norwood, Jr., for defendant Jardine, administrator. Richard L. Sweezy, for defendant, Ellen F. Flagg. Henry S. Glover, for defendant, Charles Earle. PER. CURIAM.-Judgment affirmed with costs, on opinion of Judge FREEDMAN at special term. Statement of the Case. ELIZABETH R. COGSWELL, APPELLANT, v. THE NEW YORK, NEW HAVEN & HARTFORD R. R. Co., RESPONDENT. Constitutional law.—Taking private property without compensation.—Railroad companies, liability for damage to adjacent property by noise, smoke, &c.-Franchise, grant of, carries as incident thereto, rights necessary to its use. A railroad corporation is not liable for consequential damages caused by acts authorized by the legislature and necessary to the exercise of its franchise, the consequences of which said acts lessen the value of the property of others, provided it use due care and skill in the exercise of such authority, and in the performance of such acts. The burden of proving neglect in this respect, is upon the party seeking redress. A provision in an act of the legislature authorizing a railroad corporation, organized under the laws of another state, to enter upon, and runs its cars and engines over the road of a company organized and in operation under the laws of this state, and to take, transport and convey persons and property upon the said road, &c., by implication, authorizes the erection and maintenance of necessary engine-houses, &c., as incident to the use of the franchise granted; and said foreign company is not confined to the use of such appurtenant structures and conveniences as the domestic company employs for the purpose of aiding the running. The above principles applied to facts showing that the value of plaintiff's premises was materially lessened and that her dwelling-house was and for a long time had been uncomfortable and unhealthy for habitation, by reason of the noise, smoke, cinders, &c., coming from an engine-house erected and maintained by defendant adjacent to plaintiff's said dwelling-house; and the court held, that defendant was not liable for such damage and that an injunction would not go against the acts complained of. Caro v. Metropolitan R. R. Co. (46 Super. Ct. 138), distinguished. Before SPEIR and FREEDMAN, JJ. Decided December 12, 1881. Appeal from a judgment entered at special term, Statement of the Case. dismissing the complaint upon the merits after a trial by the court without a jury. The complaint alleges that the defendant, a railroad corporation organized under the law of the State of Connecticut, by maintaining a locomotive engine-house adjoining the plaintiff's house, creates a nuisance and damages her property. As a separate cause of action, it alleges that the defendants' engine-house was so negligently constructed and it so negligently and carelessly used its premises as to unnecessarily injure the house and property of the plaintiff, by smoke, noise, soot, cinders and offensive vapors penetrating the house and premises of the plaintiff, to her damage of $25,000, and asks for an abatement of the alleged nuisance and an injunction against its continuance and for damages. The answer claims that the defendant exercised due care in the construction of the engine-house and in the use of its premises, and that its engine-house is a necessary incident in the operation of its railroad, and that it has full authority to own, and occupy its premises for the purpose and in the manner in which it is used. Further facts appear in the opinion of the court at special term, which is as follows: SEDGWICK, J.—On the evidence the value of plaintiff's house has been much lessened by the smoke, ashes and hurtful and offensive gases, that have poured from the defendant's engine-house, the engine-house of the New York Central Railroad, and from the engines generally on the tracks near the house. They have made the house uncomfortable and unhealthy for habitation. The solid parts of the smoke fall in the inside of the house, keep it dirty, mar its appearance, and substantially injure it and the furniture. They have made the air of the house unpleasant and Statement of the Case. unwholesome. The value of the house has been affected also by the railroads in their general effects, and by the great fall in the prices of real estate of late years. What portion of the total diminution of value. is to be assigned to the defendant's engine-house, would be difficult to assess, if it could be assessed at all. This difficulty would not prevent the plaintiff's having the protection in the future of an injunction, if the defendant has contributed to the acts from which she suffers, and if what it has done is a wrong to the plaintiff. Unless the defendant has been authorized by the legislature, to place the engine-house where it is, it seems clear that it is guilty of a wrong, but if the legislature has authorized it, it cannot be held responsible for the consequences of a legal act. Of course the acts on which the defendant justifies do not absolve it from the duty of using care and skill, in the construction and management of the engine-house, to prevent unnecessary damage to the dwellings near by. The burden of proving neglect in this respect, is upon the plaintiff. The testimony fails to show that any practicable change in the construction of the house or of its management, could be made so as to obviate the nuisance and lessen the damage. In fact, the question is, does section 6 of the act of March 29, 1848, authorize the defendant to maintain the engine-house, upon the land where it now is. That section declares that "the New York and New Haven Rail Road Company," to whose power the defendant has succeeded, "is hereby authorized to enter upon and run their cars and engines" . . "over the road of the New York and Harlem Railroad Company". . . and "to take, transport and convey persons and property upon the said Harlem Railroad, Plainly the legislature here authorizes the runing to and fro of defendant's engines. Its power to VOL. XVI.-3 |