FIRST DEPARTMENT, DECEMBER TERM, 1889. disprove. As the question is one of the company's intent, the burden of proof is upon them. (In re N. Y. C. R. R. 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 proofs, for the court cannot take judicial notice of the reports of commissioners or of actual construction thereunder. (See Porter v. Waring, 69 N. Y., 250.) The question should, therefore, be reserved until the proofs on the subject are all in, when it can be disposed of, properly and, advisedly, as a question of fact. The two objections, however, which I premised by stating, were well founded. The description of the property sought to be acquired was insufficient. In this particular, extreme accuracy is required (In re N. Y. C. and H. R. R. R. Co., 70 N. Y., 191), and there must be no uncertainty in the description of the property to be taken nor in the degree of interest to be acquired. (Matter of Water Comrs. of Amsterdam, 96 N. Y., 361.) What it is understood that the companies here desire to condemn is the property owner's easement of HUN-VOL. LV 26 FIRST DEPARTMENT, DECEMBER TERM, 1889. light, air and access appurtenant to his property. But it is impossible to say what specific rights are claimed under these petitions or what burdens are to be compensated for. After stating that for the purposes of its incorporation, etc., there "is required so much of the property, easements or other interests in the streets aforesaid, in this paragraph hereafter described, as has been taken," etc., the petition proceeds to specify what is sought. It states this in a series of subdivisions, of which the following is a sample: "So much of the property, easements or other interests in said Greenwich street and intersecting streets, appurtenant to or part of or constituting the street in front or along side of the lots and premises in this subdivision hereinafter described, respectively, 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, with cars and trains of cars thereon necessary for the transaction of the business of the petitioner according to the statutes, conditions and requirements aforesaid." How can the commissioners tell what "may be required" in the future? And how can any one estimate the proper compensation to be awarded therefor? The learned counsel for the companies makes an ingenious answer to this objection, but its very subtlety shows that the requisite clearness and precision are wanting. He would have us qualify the expression "may be required" by the preceding words "as has been taken" and thus make the paragraph read "so much of the property which may be required as has been taken." This will not do. It is a strained and unnatural reading of the sentence. The property owner's rights should not be left even to doubtful, though plausible, construction. If, by-and-by, an additional burden were sought to be imposed, a very much stronger argument than the present could be made in favor of the claim that it was covered by the expression in question. Apart from this, we think the description is loose and indefinite as to what has been taken and as to the precise burden to be permanently imposed. The description of the structure is in the most general terms, and FIRST DEPARTMENT, DECEMBER TERM, 1889. the easements are not specifically defined. The petitioners should have pointed out to each owner, the surrounding conditions and thus have indicated how he was to be affected. Thus, and thus alone, can the petitioners practically set forth what they desire to take and secure. The court can then determine whether they have a right to take the property sought for the purposes set forth, and, if they have, to indicate clearly to the commissioners the scope of the easement and the precise subject upon which their judgment is to operate. The second objection is made to the following paragraph of the petition : "Upon information and belief, that your petitioner has not been able to acquire title to the real estate so taken as aforesaid, and is unable to agree for the purchase thereof with the persons who own or have, or claim to own or have, estates or interests in the said real estate, and the reason of such inability is that they will not sell the same to your petitioner for a reasonable compensation." The difficulty here is, that no reason is stated as matter of fact. The companies say, in substance, that they have been informed by some one, and believe, that the property owners will not sell for a reasonable compensation. By section 13 of the act it is provided that the company may apply in case it "is unable to agree for the purchase” of the required property. But the company cannot say that it is unable to agree with the property owner until it has tried to do so. The purpose of the statute would be frustrated if the company were permitted to state its conclusions or its beliefs upon mere hearsay. The statement of the reason is essential to jurisdiction. (In re Marsh, 71 N. Y., 315.) And to What is meant by the word "reason" is, the ground of the inability to purchase, and that ground must be the statement of some issuable fact. How do the companies know, upon what information do they believe, that the property owners will not sell for a reasonable compensation? No fact is stated which justifies any such opinion or conclusion. And to say that a person will not do a thing is to state. nothing but a conclusion. To say that he has refused to do a thing is to state a fact. By this form of averment the plain provisions of the statute have been disregarded. If such a course were to pass unchallenged and uncondemned, railroad companies need never try to agree with the property owner, and yet an honest endeavor, in FIRST DEPARTMENT, DECEMBER TERM, 1889. good faith, to so agree is, a prerequisite to their seeking the aid of the court. It follows that these objections must be sustained. As, however, the petitioners may possibly be able to supply the necessary averments upon the head last discussed, and may also be able to cure the defects of description, they should have leave, if so advised, to apply at Special Term, upon proper papers, for an amendment of the present petitions and proceedings. And if such amendment be granted, the present proceedings may stand and be continued. The orders appealed from should be reversed, with ten dollars costs in each case, and the usual disbursements, and the motions to dismiss the proceedings granted without prejudice to the institution of fresh proceedings, and also without prejudice to the application to amend hereby permitted, if the petitioners are so advised. VAN BRUNT, P. J., and BARTLETT, J., concurred. So ordered. 55 204 119a 660 IN THE MATTER OF THE APPLICATION OF THE MAYOR, ALDER- -- Trust in favor of a corporation to be created, if not created within three lives the property to go to the city of New York - void under the statute against perpetuities. A testator, by his will, created a trust fund "to create, endow and forever maintain an institution in the city of New York to be called the Samuel Wood Benevolent Institute," and directed his three executors to apply to the legislature for an act of incorporation thereof, "and in case said charter shall not be obtained within the life of the longest liver of my said executors, then I give, devise and bequeath the said rest, residue and remainder of my estate, real and personal, to the Mayor, Aldermen and Commonalty of the city of New York in their corporate capacity, to be strictly devoted by the city of New York to the charitable uses in this, my will, declared." Held, that it was the manifest intention of the testator that the city of New York should receive nothing until the death of the last survivor of his three execu FIRST DEPARTMENT, DECEMBER TERM, 1889. tors, and that the suspension of the absolute ownership and power of alienation, necessarily involved in thus deferring the gift to the city of New York, was in violation of the statute against perpetuities. That the gift over to the Mayor, Aldermen and Commonalty of the City of New York was void. Cruikshank v. Home of Friendless (113 N. Y., 337), distinguished. APPEAL by the Mayor, Aldermen and Commonalty of the City of New York from an order of the Surrogate's Court of the county of New York made in the above entitled proceeding, dismissing the petition of the petitioner, which order bore date February 16, 1888, and denied an application made by the petitioner to compel the executors of the last will and testament of Samuel Wood, deceased, to account, under the provisions of sections 2726 and 2727 of the Code of Civil Procedure. B. E. Valentine, for the Mayor, etc., appellants. Edward Schenck, for the executors, respondents. BARTLETT, J.: The appellants failed in their application because, in the opinion of the learned surrogate, they were not persons interested in the estate or fund in the hands of the executors within the meaning of the Code, and the only question presented by this appeal is whether that view is correct. We think it is. The claim of the city to any interest in the estate of the testator rests upon the second subdivision of the seventh article of the will, which seeks to establish a trust in three executors for purposes which are thus stated: "To create, endow and forever maintain an institution in the city of New York, to be called 'The Samuel Wood Benevolent Institute,' and to vest in said institute all of my property and estate not otherwise disposed of, and for the use and purposes thereof as the same are hereinafter declared, and to the end that the said 'The Samuel Wood Benevolent Institute' may, by the laws of this State, be capable of taking and holding real estate and other gifts and donations to its use, I hereby direct and order my executors, as soon as may be after my decease, to apply to the legislature of this State for an act of incorporation, incorporating the said 'The Samuel Wood Benevolent Institute,' with power to take and hold real estate for the purposes of said institute, and to prosecute said |