the breach thereof does not furnish a sufficient ground for canceling and annulling the deed. By the terms of that agreement, as found by the trial judge, its observance was not to be required until after the execution and delivery of the deed, and the performance thereof was entered upon by the grantee; and the plaintiff enjoyed the performance of it for a period of two years or more, and, apparently, thereafter waived a strict performance of it, and for a time accepted a modified performance, by receiving the care, attention, and home in the family of the grantee, after she had left the premises in question. The omission to perform the oral stipulation or agreement is not sufficient ground to set aside the deed, as there was no mistake of fact, or fraud. The deed was delivered without any condition attached to the delivery, and the oral agreement, as appears in the findings, contains nothing to indicate that its full observance and completion were made a condition precedent to the taking effect of the conveyance. Wilson v. Deen, supra; De Kay v. Bliss, 4 N. Y. St. Rep. 735. In the case just cited, it was said, viz.: And when that is the nature of the agreement entered into, and the act is not to precede the conveyance itself, the failure to perform the stipulation cannot be relied upon as a condition to annul that conveyance, but it will supply the legal groundwork of an action for damages for the non-performance of so much of the agreement." The respondent calls our attention to Bolen v. Bolen, 44 Hun, 362, and insists that it aids him in supporting the judgment in this case. We think otherwise. There the condition upon which the bond and mortgage were given was that the wife and son should return to the husband. The wife refused to permit the return of the son; and it was held that there had been a failure of the consideration of the mortgage. This cause differs very much from Quick v. Stuyvesant, 2 Paige, 83, referred to by the counsel for the respondent. That was one where the land was conveyed for the purposes of opening a street, and there was no other consideration for it than the benefit which the grantor was to derive from the opening of this street, and by subsequent events, beyond control of both parties, the street could not be opened; and a reconveyance of the land was decreed in equity. Nor do we think the case of McHenry v. Hazard, 45 N. Y. 580, aids the respondent. That case upholds the power of a court of equity to order a surrender and cancellation of written instruments obtained by fraud, or held for inequitable and unconscientious purposes. We are of the opinion that neither the evidence in the case nor the findings made thereon sustain the conclusion of law to the effect that the deed should be given up and canceled.

3. Assuming that a parol arrangement was made that the plaintiff should have a home, for one-half of the time, during the remainder of his natural life, with his daughter, and that arrangement was made contemporaneous with the execution and delivery of the deed, and that she received the deed with the promise to carry out that agreement, and furnished no other consideration to the plaintiff for the deed, and that the plaintiff, in accordance with that agreement, enjoyed the privileges thereof for two years on the premises, and subsequently received, or was offered, a fulfillment thereof by the daughter and her husband, having himself consented to a modification thereof by receiving fulfillment at the home of a daughter, at another place than the premises in question, we think there had been such a part performance of the agreement as to take it out of the statute of frauds; and the plaintiff would be entitled, upon satisfying the court, by clear evidence, that such an arrangement was made, to a specific performance thereof, and if, for any reason, a specific performance cannot be had, to such damages as he sustains by reason of a breach thereof. Inasmuch as this is in the nature of a purchase price or consideration for the premises which he had voluntarily conveyed to his daughter, we see no reason why, as against her, the same may not be enforced, and, as against the premises while held by her husband and daughter under her will, with the like force and effect that might be given to a vendor's lien for

purchase money unpaid. Neither the husband nor daughter Ida, in virtue of the will of Lena, the daughter of the plaintiff, have any better title of interest in the land than Lena possessed at the time of her death. There was considerable evidence given upon the trial tending to show that the conveyance was made for the purpose of effectuating a gift of the premises. The trial judge refused so to find, however. If the parol promise was made to support the plaintiff one-half of the time, as stated in the complaint and in the findings, as a consideration for the premises, we think that a court of equity has jurisdiction to enforce the same; or if, for any reason, the same cannot be specifically enforced, by reason of the changed situation of the parties, it may award damages for a breach thereof, and declare the same a lien upon the premises in question. Hence we do not agree with the position of the defendant, that, in the event of such an agreement being found, the sole remedy of the plaintiff is an action at law, for a breach of such an agreement, to recover damages. Hammond v. Cockle, 2 Hun, 496. However, as the views we have already expressed lead to a new trial, we forbear further comment upon the merit of the case, as, upon a new trial, further evidence may be given in respect thereto by either side. Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.

PEOPLE v. ULSTER & D. R. Co.

(Supreme Court, General Term, Third Department. December 11, 1889.) RAILROAD COMPANIES-FORFEITURE OF CHARTER-PLEADING.

In an action to forfeit a railroad company's charter, because of its failure to extend its line as the charter required, defendant being a new railroad company, organized on foreclosure of a mortgage given by the company to which the charter was originally granted, issue was joined before the passage of Laws N. Y. 1889, c. 236, which relieves such a road from extending its line beyond the portion constructed at the time it acquired title, provided the railroad commissioners certify that the public interests do not require such extension. Held, that defendant should be allowed to file a supplemental answer, setting up the act in defense.

Appeal from special term, Albany county.

Action by the people of the state of New York against the Ulster & Delaware Railroad Company, to obtain the forfeiture of defendant's charter because of its failure to complete and operate its line of road according to the conditions of its charter. Defendant is a new railroad, organized upon the foreclosure of a mortgage given by the original company, and succeeded to the old company's charter. After issue was joined, the legislature passed an act amending the general act of 1874, (Laws N. Y. 1874, c. 430,) for the reorganization of railroads sold under foreclosure, relieving such new corporation "from extending the road beyond the portion thereof constructed at the time it acquired title, provided the board of railroad commissioners should certify that, in their opinion, the public interests, under all the circumstances, did not require such extension," etc. Act May 5, 1889, (Laws N. Y. 1889, c. 236.) Defendant moved the court for leave to file a supplemental answer setting up this act, and the action under it of the board of railroad commissioners, as a defense. This motion was denied, and defendant appeals.

Argued before LEARNED, P. J., and LANDON and FISH, JJ.

Burrill, Zabriskie & Burrill, (J. E. Burrill, of counsel,) for appellant. John P. Grant, (E. Countryman, of counsel,) for respondent.

LEARNED, P. J. It is not necessary or desirable, on the appeal from this order, to decide whether or not the proposed supplemental answer is a valid defense. The facts to be set up are undisputed. The question whether the people can continue this litigation after the passage of the act on which defendant relies, and after the action of the railroad commission under the same, is so important that we should not be justified in preventing the defendant

from availing itself of this defense, if it be a defense. The plaintiffs claim that the act does not apply to past transactions, and that if, in terms, it seems so to apply, yet to make it so apply would be unconstitutional. But when we consider that the plaintiffs are the people, and that they are endeavoring to enforce a forfeiture, we are not prepared to hold that it is unconstitutional for the people to relinquish a right of forfeiture, or that they cannot delegate to a commission the power of deciding whether such right of forfeiture should not be relinquished. What rights, on actual or implied contract, the town of Harpersfield may have against the defendant, as successor to other railroads, cannot, we suppose, be passed upon in this action. We are here dealing solely with the right of the people to forfeit defendant's corporate privileges. The order is reversed, with $10 costs of appeal, and printing disbursements, and the motion is granted on the payment of $10 costs of motion, and plaintiff's taxable costs up to the time of making the motion at special term; the costs of appeal and printing disbursements to be set off (to their extent) against the costs to be paid by defendant.

STOKES v. AMMERMAN et al.

(Supreme Court, General Term, Second Department. December 10, 1889.)

1. TRUSTS-POWERS OF TRUSTEE-Judgments.

A person who is appointed trustee, and takes from his predecessor an assignment of the trust-estate, takes the legal title to a judgment in favor of his predecessor as trustee, and has the right to sue upon it as a judgment creditor.

2. LIFE INSURANCE-RIGHTS OF Creditors.

Under Laws N. Y. 1840, c. 80, as amended by Laws 1858, c. 187, and Laws 1870, c. 277, making the insurance on the husband's life for the wife's benefit exempt from the husband's debts, but providing that, when the premium paid in any year shall exceed $500, the exemption shall not apply to so much of the premium as shall exceed $500, an action by a creditor for such excess can be maintained during the husband's life-time.

Appeal from special term, Kings county.

Action by Stephen B. M. Stokes, as sole trustee for the benefit of Mary A. Hewett, under the last will and testament of Caroline L. Stokes, deceased, against Richard Ammerman, Eleanor Ammerman, Frances H. Walker, impleaded with the Equitable Life Assurance Society of the United States, to recover the excess over $500 a year paid by Richard Ammerman as premium on a policy of insurance on his life in favor of his wife, Eleanor Ammerman. Defendants appeal from an order overruling their demurrer to the complaint. Argued before BARNARD, P. J., and DYKMAN, J.

Bristow, Peet & Opdyke, (David Willcox and L. E. Opdyke, of counsel,) for appellants. Stephen B. M. Stokes, pro se.

BARNARD, P. J. The complaint states facts which make a good cause of action. The plaintiff is now the sole trustee under the last will and testament of Caroline L. Stokes, deceased. The defendant Richard Ammerman was once one of the trustees under that will, but, for waste of the funds, was permitted to resign, and the remaining trustees recovered a judgment against him for the amount of such waste and misappropriation of the trust funds. This judgment was recovered on the 5th of November, 1886, and filed on the same day in the clerk's office of the city of New York. Execution was at once issued, but was returned unsatisfied. The amount of the judgment was $4,537.58, with interest from February 1, 1873. The plaintiff was appointed sole trustee in 1881, and not only took the trust-estate by force of the appointment, but took an assignment of the estate from the old trustee. The plaintiff has the legal title to the judgment, with power to sue upon it in his own name as trustee; and this makes him a judgment creditor of the defendant, in legal signification.

In 1871, the defendant, Eleanor Ammerman, caused her husband, the judgment debtor, to be insured in the Equitable Life Insurance Society for $20,000 for her benefit, if she survived her husband. The application was made by the debtor, and he has paid out of his property and funds over $500 in yearly premium for each year. The husband and wife are still living. It is not necessary that the husband be dead, and that the wife survive, to give the creditor a right of action for the excess. The debtor's money has been put into the policy. Chapter 80 of Laws of 1840, and the amendatory acts (chiapter 187, Laws 1858; chapter 277, Laws 1870,) make the loss payable to the wife free of creditors' claims in case she survives her husband. Then follow the words which permit this action: "But, when the premium paid in any year out of the property or funds of the husband shall exceed five hundred dollars, such exemption from such claims shall not apply to so much of said premium so paid as shall be in excess of five hundred dollars; but such excess, with the interest thereon, shall inure to the benefit of his creditors." Under this law the premium paid would all be subject to claim of creditors. The law only exempts $500 of yearly premium. In Baron v. Brummer, 100 N. Y. 372, 3 N. E. Rep. 474, which was a precisely similar action to this one, the court of appeals held that payments in excess of $500 could not be reached by a creditor whose debt was contracted after the payment of the premiums sought to be reached. The court apparently saw no objection to the action itself being brought while both husband and wife were living. Assuming a right of action, it is immaterial to discuss objections which go merely to the form of the decree. The judgment should therefore be affirmed, with costs.

METROPOLITAN EL. R. Co. v. DOMINICK. SAME v. DOUGLASS. NEW YORK EL. R. Co. v. BALDWIN.

(Supreme Court, General Term, First Department. December 2, 1889.)

1. EMINENT DOMAIN-CONDEMNATION AFTER TAKING.

Under Laws N. Y. 1850, c. 140, §§ 14, 21, relating to condemnation proceedings, a railroad company may maintain a petition for the condemnation of a right of way, though its road has been already constructed, and though the past use of the easement, without compensation, constituted a continuing trespass.

2. SAME-PETITION.

A petition by a railroad company for the condemnation of land alleged that under acts of the legislature, and the determination of commissioners pursuant to certain statutes, a particular route was designated and established for petitioner, and that it had "constructed, maintained, and operated a railway which it was so authorized to construct," etc. Held, that it was a question of fact, to be determined on all the evidence, whether there has been a compliance with Laws N. Y. 1850, c. 140, § 14, which requires such petitioner to state that "it is the intention of the company in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association."

3. SAME-DESCRIPTION OF PROPERTY.

A petition by an elevated railroad company for the condemnation of a right of way does not sufficiently describe the property sought to be acquired by alleging that, for the purposes of petitioner's incorporation, there "is required so much of the property, easements, or other interests in the streets aforesaid, hereafter described, as has been taken," and specifically described as so much of the property, easements, or other interests in the streets "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, with two rows of columns in said street, and a superstructure carrying tracks upon transverse girders spanning the street, and as has been and may be required by reason of the operation of said railway according to the statutes, conditions, and requirements aforesaid."

4 SAME-INABILITY TO PURCHASE.

*

Under section 13 of the statute, which provides that a railroad company may apply for the condemnation of the required property where "it is unable to agree for the purchase" thereof, a petition is insufficient which alleges, on information and belief, that petitioner is unable to agree for the purchase of the property by reason of the owners' demand of unreasonable compensation.

Appeal from special term, New York county. Proceedings by the Metropolitan Elevated Railway Company for the condemnation of the property of Francis J. Dominick and William P. Douglass, respectively, and of the New York Elevated Railway Company for the condemnation of the property of Susan A. Baldwin. From the orders of the special term overruling certain preliminary objections to the companies' petitions, and denying the motions to dismiss such proceedings, the property owners now appeal.

Argued before VAN BRUNT, P. J., and BARTLETT and BARRETT, JJ. E. C. Perkins, for F. J. Dominick. E. B. Whitney, for S. A. Baldwin. Jay & Candler, for W. P. Douglass. Julien T. Davies, for respondents.

BARRETT, J. There are but two objections to the petitions which should be considered upon these appeals. The first is that they do not sufficiently describe the property sought to be acquired; the second, that the reason of the petitioner's inability to acquire title has not been sufficiently stated. The other objections were properly overruled. They were either untenable or doubtful. Among the untenable objections was that which went to the root of the proceeding, and denied the petitioner's right in toto. My views upon that head have already been expressed at special term in an unreported opinion, and I adhere to those views. Under the act of 1850, (chapter 140, §§ 14, 21,) as amended by chapter 649 of the Laws of 1881, there can be no doubt of the petitioner's general right to proceed in the present way, notwithstanding the fact that the road has been constructed, and that the past use of these easements, without compensation, may be deemed a continuing trespass. This was the clear intimation given in Henderson v. Railroad Co., 78 N. Y. 423; and it harmonizes with the views expressed in Re Railroad Co., 67 N. Y. 371. See, also, Ford v. Railroad Co., 14 Wis. 609. Among the doubtful objections is that which rests upon the provision of the statute requiring railroad corporations, in their petition for the condemnation of real estate, to state that “it is the intention of the company, in good faith, to construct and finish a railroad from and to the places named for that purpose in its articles of association." Section 14. We think this statement, or its equivalent, was essential. It is one of the facts which the property owner may controvert and disprove. As the question is one of the companies' intent, the burden of proof is upon them. In re Railroad Co., 66 N. Y. 407. The petitions do not state this fact. They do state, however, what are claimed to be equivalent facts, namely, that under acts of the legislature, and the determination of commissioners duly appointed pursuant to certain statutes, particular routes were designated and established for these companies, and that each of said companies has "constructed, maintained, and operated a railway, which it was so authorized to construct, maintain, and operate." Of course, if the companies have completed the railways which they offered and were authorized to construct, they cannot be required to express, under the solemnity of an oath, an intention to do what has already been done. If, however, they have not completed the railways "from and to the places named in their articles of association," or from and to the places mapped out for them by legislation, or by the action of duly-authorized commissioners, they should be required to comply with the statute, and state, under oath, their intention in good faith to so complete. The doubt here is as to the form of the averment, read in connection with the other facts. It is such a doubt as should not be solved upon a mere preliminary objection. Counsel declare that the intention was to aver completion of the entire road which each company was authorized to construct, and the averments are perhaps sufficient to comprehend that purpose. This raises a question of fact which must depend upon the

1See note at end of opinion.