App. Div.] Second Department, October, 1909. * * * alleges that the defendant agreed to "employ the plaintiffs exclusively to do all the pressing of garments manufactured by the defendant;" that such pressing was "to be done by the plaintiffs and by pressers employed by and to be paid by them, and under their supervision." It further alleges that the plaintiffs" did enter the employ of the defendant. and continued in said. employ and rendered said services to and for the defendant;" that defendant “wrongfully discharged the plaintiffs from his employ and refused to permit the plaintiffs to longer remain in his employ," and that said "plaintiffs were ready, willing and able and offered to continue in said employ and to render said services." It appeared from plaintiffs' testimony that they were employed by the defendant originally on November 1, 1904, "to stay with him and make his work, all the pressing work * * * in his factory." The defendant furnished the place to work in his own factory, the tables проп which the work was done, the irons, the heat, and everything in the shape of tools except some small cushions to hold the irons, which the plaintiffs furnished. Plaintiffs further testified that on the twentyeighth of March they told the defendant that they had an offer to take this position to do the pressing work" for another firm, and that the defendant said that he wanted them to remain with him until January 1, 1906, and as an inducement to them to remain he agreed that whereas before he had caused certain of the work to be done outside of the factory and by others, he would now have it all done in the factory and by them. The plaintiffs further testified that on the seventh of April the superintendent came to them in the factory and told them that they were discharged, and that the next day the defendant ordered them out of the factory. The reason given for their discharge, according to the plaintiffs, is that the superintendent wished to put a friend of his in the position, while the defendant claims that it was on account of the quarrelsome disposition of the plaintiffs. On the trial plaintiffs' counsel began to interrogate one of the plaintiffs as to what other employment he had been able to obtain during the term of the contract and after its breach, and only desisted when checked by the court. It is true that the burden of showing this rested not on the plaintiffs but on the defendant (Howard v. Daly, supra), but this shows quite clearly what counsel for the plaintiffs Second Department, October, 1909. [Vol. 134. considered the nature of the cntract to be. If the contract did not involve the personal services of the plaintiffs, it is difficult to see what object there was in making the contract of March twentyeighth, or why the fact that the plaintiffs had received an offer of work elsewhere should have been made the cause for entering into an agreement that the plaintiffs should reject that offer and remain with defendant for an additional period of nine months. The plaintiffs could have taken that contract with the other firm and at the same time done work for the defendant. If the other firm did require the personal services of the plaintiffs, then, according to the theory adopted by the learned trial justice, they could have performed all of the work for the defendant through subordinates and accepted both contracts. It was at least a question of fact for the jury whether their agreement with the defendant did not include their personal services to the full extent thereof. If it did, then the court erred in excluding the testimony offered. The fact that the contract included not only the personal services of the plaintiffs but those of others will not absolve the plaintiffs, in the case of a breach by the defendant, from the duty and obligation to reasonably reduce the damages resulting therefrom (Milage v. Woodward, supra), and evidence as to the extent of carnings by the personal service of the plaintiffs was competent in mitigation of such damages. If it should be claimed that as the defendant did not plead as a partial defense and in mitigation of damages that the plaintiffs had secured or might have secured employment elsewhere, it is sufficient to say that the evidence was not objected to on that ground. If it had been, the defendant might have been allowed to amend. The case was submitted to the jury on an erroneous theory. Under such circumstances we may reverse, even in the absence of an exception. (Alden v. Knights of Maccabees, 178 N. Y. 535.) The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. HIRSCHBERG, P. J., JENKS and MILLER, JJ., concurred; RICH, J., dissented. Judgment and order reversed and new trial granted, costs to abide the event. App. Div.] Second Department, October, 1909. In the Matter of the Application of EMILY C. CHEW, Petitioner, for a Writ of Certiorari Directed to the BOARD OF TRUSTEES OF THE VILLAGE OF BABYLON IN THE COUNTY OF SUFFOLK, Respondent. Second Department, October 8, 1909. Municipal corporations — laying out village street-filling in bank of creek. Village authorities, in laying out a street on the border of a shallow tidal stream, may bridge or fill in a narrow jog or spur on the creek extending into or a little over the proposed highway. Such filling in is not an encroachment upon the creek. CERTIORARI issued out of the Supreme Court and attested on the 27th day of March, 1909, directed to Chester O. Ketcham and others, composing the board of trustees of the village of Babylon, commanding them to certify and return to the office of the clerk of the county of Suffolk all and singular their proceedings had in laying out a certain street in the village of Babylon, the relator being the owner of the land to be taken. The course of the street is along Sumpwams creek, a small and shallow tidal stream which runs into Great South Bay. The relator owns a tract of land fronting on the said creek, and the proposed street will take the front thereof. William G. Nicoll, for the petitioner. Albert D. IIaff, for the respondent. GAYNOR, J.: The order of the village trustees laying out and opening the street gives its West line by courses and distances, and the East line as along a certain tidal creek, with an addition that such East line should "extend out into the waters of the creek wherever necessary to make a width of fifty feet"; and the order makes two specified maps which were received in evidence and filed in the proceeding a part of the description. These maps show the said West line, and also the line of the creek. Being on a scale of 100 feet to the inch, it appears that the width between the said two APP. DIV.-VOL. CXXXIV. 11 Second Department, October, 1909. [Vol. 134. lines of the street is always at least fifty feet, except at one place, where there is a narrow jog or spur (viz., about 25 feet wide) on the creek which runs in to or a little over the said West line of the street. It is therefore objected by the appellant that at that point the street will be of no width for the reason that it cannot cross the said jog or spur, inasmuch as that would be to encroach on tidewater, although the order of the commissioners permits that to be done. But to bridge or even fill up this trifling jog or break in the bank would be no encroachment on the creek. The custom is to fill them up. The permission of the order to carry the line out into the water where that would be necessary to get a road width of fifty feet was put in the order only because of the objection raised before the commission in respect to this spur or jog, and is superfluons. The order should be affirmed. HIRSCHBERG, P. J., JENKS, BURR and RICH, JJ., concurred. In the Matter of the Estate of MARY M. STEINER, Deceased. HENRY M. AHNER, as Executor, etc., of MARY M. STEINER, Deceased, Appellant; MARY M. STEINER, Respondent. Second Department, October 8, 1909. Executors and administrators-compulsory accounting-persons not entitled to petition-will-gift with discretionary power to divide estate. A person not a creditor, or entitled to a legacy, or other pecuniary provision, or distributive share under a will, has no standing to compel the executor to account. Where a will gives the whole residuary estate to a son of the testatrix for the use and benefit of himself and his sisters "in such proportions and at such times and in such manner as he (the son) shall in his judgment and discretion deem proper, right and advisable," and states that the testatrix has full confidence in the integrity and justice of her son, and vests him with the legal title and full discretion to use the property for the benefit of himself and sister's there is no legal duty or trust imposed upon the son. He may give such portion to his sisters as he may choose to give, or he may give nothing. Hence, a sister, not being entitled to any pecuniary provision, has no standing to compel her brother to account as executor. App. Div.] Second Department, October, 1909. APPEAL by Henry M. Ahner, as executor, etc., from an order of the Surrogate's Court of the county of Kings, entered in said surrogate's office on the 4th day of January, 1909, directing the executor to render and settle an account of his proceedings. He is a son of the testator. The order was made on the petition of Mary M. Steiner, a daughter of the testator, under the following clause of the will, no other provision being made for her, viz.: I "Second. All the rest, residue and remainder of my estate, real and personal, of whatsoever kind and wheresoever situate, of which may die seized and possessed, or to which I may be entitled at the time of my decease, I give, devise and bequeath to my son, Henry M. Ahner, for the use and benefit of himself, of my daughter, Mary M. Steiner, wife of Richard J. Steiner, of my daughter, Elizabeth B. Steiner, in such proportions and at such times and in such manner as he, my said son, Henry M. Ahner, shall in his judgment and discretion deem proper, right and advisable. By this provision I mean that I have full confidence in the ability, integrity and sense of justice and fairness of my said son, and in his love for me and regard for my wishes, and I give him the legal title to all the property of which I shall die seized and possessed, and full discretion to use it for the benefit of himself and my other herein before named children, Mary M. Steiner, wife of Richard J. Steiner, and Elizabeth E. Steiner." Joseph Kohler, for the appellant. Charles Hentschel, Jr., for the respondent. GAYNOR, J.: Unless the respondent be entitled to a distributive share, legacy, "or other pecuniary provision", of the testator's estate, she had no standing to require the executor to account (Code Civ. Pro. §§ 2725, 2726). The learned Surrogate held that she is entitled to "a pecuniary provision under the will", but did not state what it is. The brief of the learned counsel for the appellant says that the second paragraph of the will leaves all of the testator's estate to the appellant, who is the testator's son and executor, "to use it for the benefit of himself and his sisters" (and then professing to literally quote the words of the will) "in such portion, in such terms, and in such manner as he * * * shall in his judgment and discretion deem |