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and 122 New York State Reporter The following is the opinion of the court below at Special Term (Clarke, J.):

The complaint alleges that in May, 1903, the defendant received from Willis B. Dowd, plaintiff's assignor, a certificate for 250 shares of the common stock of the Smokeless Calorific Company, “as trustee, to hold and cancel said certificate upon the issuance to the said Willis B. Dowd of a new certificate for the same amount of shares of said company, as soon as the same shall be issued for delivery to the subscribers”; that upon the delivery of the old cer. tificate to defendant he delivered to the plaintiff's assignor an interim certificate, which certifies that Dowd or assigns will be entitled to receive at the office of De Witt & Co., "as soon as the shares of said company are issued for delivery to the subscribers,” 250 shares upon the surrender of the interim certificate properly indorsed in lieu of the old certificate "which was surrendered and canceled." This interim certificate is signed by the defendant as trustee. The complaint further alleges that the new shares "have long since been ready for issuance," and that prior to the commencement of this action the interim certificate, properly indorsed, was offered for surrender, but "said defendant has arbitrarily and wrongfully manipulated the affairs of said company, so that the said shares have not been placed in the hands of C. H. De Witt & Co, for delivery to the holder of said interim certificate, and has denied and disputed the right and title of said Willis B. Dowd and his assigns to said 250 shares of stock therein mentioned." The demand is that the defendant account as trustee and deliver back the old certificate, or pay the value thereof to the plaintiff.

The defendant demurs on the grounds that the complaint does not state facts sufficient to constitute a cause of action, and that there is a defect of parties, in that the company should have been inade a party defendant.

As I am of the opinion that the demurrer must be sustained on the first ground, it is unnecessary to pass upon the second. From the complaint submitted it appears that the duty imposed upon the trustee was merely to hold the old certificate, for which the interim certificate was given, until the new shares were issued and placed in the hands of a depository for delivery to the subscribers, and upon the issuance of such new shares to cancel the old certificate. It is alleged that the shares which were to be delivered at the office of the depository have long since been ready for issuance, but it is not alleged that they have been issued. It does not appear that it was the duty of the defendant trustee to issue the new shares and place them in the hands of the depository. It is not alleged that the defendant was an officer or director or in any way responsible for the issuance or delivery of the new shares, which are not even to pass through his hands. He merely certifies that the holder of the interim certificate will be entitled to new shares as soon as issued for delivery, and upon the happening of that event he is bound to cancel the old certificate (if, indeed, it was not canceled when surrendered, as alleged in the interim certificate). The defendant has performed the duties of his trust, as far as such duties appear from the facts alleged in the complaint. It is only from the facts alleged that the extent and nature of the duty owed plaintiff by defendant may be determined. As stated by Judge Jewett in the case of City of Buffalo v. Holloway, 7 N. Y. 493, at page 498, 57 Am. Dec. 550: "The difficulty is the want of any statement of facts from which the duty arises; for an allegation of the duty is of no avail unless from the rest of the complaint the facts necessary to raise the duty can be collected." It is an ele mental principle of equity, as contended by plaintiff, that a trustee must not do any act inconsistent with the trust, or deny the title of the cestui que trust. But the plaintiffmust set forth facts which are inconsistent with the trust, or constitute the denial of the cestui's trust. In Knapp v. The City of Brooklyn, 97 N. Y. 520, where the injury was alleged to have been caused "by reason of the illegal action, frauds, and irregularities of the officers," etc., of the defendant, Judge Finch, at page 523, says: "No actions of such officers are pointed out as illegal; no frauds are described or averred; no irregularities are specified; and so no facts are pleaded upon which issue can be taken, or which indicate to the court or adversary the questions intended to be tried." The allegations in this complaint that “defendant has arbitrarily and wrong.

fully manipulated the affairs of said company, so that the said shares have not been placed in the hands of C. H. De Witt & Co. for delivery to the holder of said interim certificate, and has denied and disputed the right and title of said Willis B. Dowd and his assigns to said 250 shares of stock therein mentioned," are not allegations of facts, but the averment of conclusions of law. In Phinney v. Phinney, 17 How. Prac. 197, the allegations that the defendant has “taken upon himself the exclusive management of the estate," and with the "connivance and consent" of another has "greatly mismanaged it," to the damage of the plaintiffs, were held to be conclusions of law. In Taylor V. Atlantic Mutual Ins. Co., 2 Bosw. 106, where it was alleged that the defendants had wrongfully made use of the slip, Judge Bosworth says, at page 116 : "The allegation that it was wrongful, and in violation of the plaintiff's rights, is not an allegation of a fact, but is the pleader's view of the nature of the acts which he describes." N. Y. & Mt. Vernon Transp. Co. v. Tyroler, 25 App. Div. 161, 48 N. Y. Supp. 1095; Van Schaick v. Winne, 16 Barb. 89. In the case before me not a single fact is alleged from which the court can infer that the defendant's acts were wrongful, or that he has violated the trust alleged. Upon demurrer, the conclusions of law are not admitted.

As none of the facts upon which the conclusions are based are stated, the demurrer, upon the ground that the complaint does not state sufficient facts to constitute a cause of action, is sustained. Leave is granted to amend the complaint, upon payment of costs, within 20 days after service of the order herein.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

J. M. Ferguson, for respondent.

PER CURIAM. Judgment affirmed, with costs, on opinion of court below, with leave to plaintiff to amend on payment of costs in this court and in the court below.

(43 Misc. Rep. 304.)

WAIT et al. v. HUDSON VALLEY RY. CO.

(Supreme Court, Special Term, Saratoga County. March, 1904.) 1. EMINENT DOMAIN-ACTION BY OWNERS-INJUNCTION.

Under Code Civ. Proc. $ 3379, providing, among other things, that defendant in eminent domain proceedings may continue in possession of the land, an order staying defendant from continuing any action against plaintiff in condemnation proceedings, which action accrued prior to the commencement of such proceedings, is unauthorized.

Action by James L. Wait and others against the Hudson Valley Railway Company. Motion by plaintiffs to modify an injunction. Denied.

J. H. Bain, for the motion.
W. L. Kiley, opposed.

SPENCER, J. This action was commenced by the service of summons and complaint on the 11th day of September, 1901. The complaint alleges the plaintiffs' ownership of a parcel of land specifically described, and that in June, 1901, the defendant's predecessor entered thereupon, broke down and removed fences, dug up and removed soil, permitted cattle to injure and destroy grain and produce growing thereon, and also upon adjoining premises belonging to plaintiffs, and that defendant is in possession of the parcel particularly described, and demands possession thereof, and damages in the sum of $1,000. Sub

and 122 New York State Reporter sequent thereto, and on October 3, 1901, the defendant instituted proceedings against the plaintiffs for the condemnation of the parcel of real property specifically described in the complaint, and on the 26th day of October following an order was made therein, as provided by section 3379, Code Civ. Proc., which, among other things, authorized the defendant to continue in possession of said parcel, and ordered "that said defendants (plaintiffs here, and each of them, hereby are stayed from bringing or continuing any action or proceeding against said plaintiff.” The condemnation proceedings were continued to judgment, and final order entered therein on the 27th day of February, 1904. The plaintiffs now move to modify the stay, and for leave to proceed with the action. The motion is opposed by defendant on the ground that the stay can only be modified by a motion made in the condemnation proceedings, and that the order has become final and conclusive upon the parties.

I am still inclined to the view expressed upon the argument—that an application to modify the restraining order should have been made in the condemnation proceedings in which the order was granted. I am, however, unable to perceive any necessity for a modification. It stayed the defendants (plaintiffs here) from bringing or continuing any action or proceeding in respect to the possession which it authorized, and has no application whatever to any prior possession, or to any right of action which the plaintiffs may have had against the defendant for antecedent trespasses.

But if the order will bear the construction put upon it by the parties to this motion, it would have been a nullity so far as restraining the plaintiffs from prosecuting their action as to any prior possession or trespass. Section 3379 of the Code does not authorize the court to restrain the owner of the premises sought to be condemned from maintaining a right of action which accrued prior to the commencement of the condemnation proceedings. Although I find no authority for the rule thus adopted, I am nevertheless of the opinion that it is well within the reasons of the following authorities: Matter of St. Lawrence & A. R. Co., 133 N. Y. 270, 31 N. E. 218; Manhattan R. Co. v. Taber (Sup.) 29 N. Y. Supp. 220; and Village of Canandaigua v. Benedict, 8 App. Div. 475, 10 N. Y. Supp. 707. Despite the view so taken, I am nevertheless of the opinion that the plaintiffs were justified in making this application, as both they and the defendant have construed the order as restraining them from any further prosecution of this action, and an attempt on their part so to do without leave of the court might have subjected them to the annoyance of proceedings for contempt. It therefore seems reasonable that the court should grant the permission asked for.

The defendant further contends that the damages resulting to plaintiffs from the defendant's trespass prior to the commencement of the condemnation proceedings were submitted to the determination of the appraisers therein, and files a certificate by such appraisers to that effect. If this be so, and it shall be made to appear upon the trial that such an adjudication was had, the award may be regarded as a bar to the maintenance of the action. I am, however, unable to find anything in the statute which authorizes the appraisers to include damages for a

prior trespass within the award, and am of the opinion that it could not have been done without the express consent of the plaintiffs. That question should be left to be determined upon the trial of the action in case the defendant shall plead the condemnation proceedings as res adjudicata.

The further point that the present action is in ejectment, and may not be maintained after final judgment in the condemnation proceedings, requires attention. I am not satisfied that the complaint here, properly construed, constitutes an action in ejectment. The pleader seems to have attempted to join in the same complaint three causes of action, viz.: (1) For injuries to real property; (2) for ejectment; (3) for injuries to personal property-no two of which may be joined in the same action. Code Civ. Proc. § 481. No damages are sought to be recovered for withholding possession of the property, or for its rents and profits, or for the value of its use and occupation, as the plaintiffs make no such demand in their complaint. Code Civ. Proc. $S 1496, 1497. The only damages sought to be recovered are those resulting from alleged trespasses upon real property and injuries to personal property. The complaint is clearly defective, being both indefinite and uncertain, and joining causes of action in violation of the provisions of the Code, but I do not think this is ground for a denial of the present motion. The application to modify the injunctive order is therefore denied, but plaintiffs may take an order granting leave to proceed with the prosecution of the action, without costs to either party.

Ordered accordingly.

COPELAND v. DEGNON-MCLEAN CONTRACTING CO.

(Supreme Court, Appellate Term. June 13, 1904.) 1. NEGLIGENCE-PERSONAL INJURIES-FAILURE TO GUARD EXCAVATION-EviDENCE.

In an action for personal injuries alleged to have been caused by the negligence of defendant in failing to properly guard an excavation made by it, into which plaintiff fell, evidence considered, and held to show that a verdict for plaintiff was against the weight of the evidence. Appeal from City Court of New York, Special Term. Action by Alexander Copeland against the Degnon-McLean Contracting Company. There was verdict for plaintiff, and from an order denying a motion for a new trial defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
James F. Donnelly, for appellant.
Bernard Vorhaus, for respondent.

TRUAX, J. Plaintiff brings this action to recover damages for personal injuries received by reason of the alleged negligence of the defendant in failing properly to guard and protect an excavation made by it in a portion of Forty-Second street near the intersection of said street with Madison avenue. The plaintiff was the sole witness as to how or in what manner he received his injuries, and his version of the accident is so uncertain and variable as to cause great

and 122 New York State Reporter doubt upon its reliability, and to make the cause of the accident very problematical; and, if any weight is to be given to the testimony on the part of the defendant, the entire evidence is clearly insufficient to support the verdict rendered. Plaintiff's first statement is that he first crossed Madison avenue, and reached a point about seven feet from the corner, and there “stood upon a plank that gave way and went down." He stepped into a space between the southerly rail of the cross-town car track and the corner of Forty-Second street and Madison avenue to avoid a passing car. He says: “The place upon which I stepped between the southerly rail and the fence was a plank. When I stepped upon it, the rail gave way, and I went down. Part of the roadway consisted of this plank. It covered up the excavation. The plank and the rail both gave way at the same time.” Although it is not made clear, it is probable that when the witness

the word "rail” in connection with the plank he meant the low rail or plank of the fence that surrounded the excavation. Subsequently he testified that on one side was the plank, then came the fence, and then the open excavation; that he did not fall under the plank, but fell under the fence beyond the plank; and that there was no excavation under the plank, nor between him and the barrier. He shifted the ground of his cause of action as first stated by him, and gave an entirely different account of the manner in which he fell into the hole, although he gave no testimony as to what caused such fall, or any evidence of any act of omission or commission from which negligence on the part of the defendant could be imputed. From this ambiguous and contradictory testimony it is impossible to determine with any degree of accuracy how the plaintiff received the injuries sued for. Certainly, if there was no excavation under the plank that could not have given way, and if the plaintiff fell under the fence beyond the plank, some cause therefor should have been given inculpating the defendant. The defendant showed by two witnesses, whose testimony was not disputed, that there was a complete fence around the excavation, consisting of two-inch plank, twelve inches wide, and nailed in three courses; and there were three rails or plank, the bottom one being between six or eight inches from the ground; and that at the time the plaintiff was discovered in the excavation into which he had fallen this barrier or fence was perfectly intact, no part thereof being broken or removed. It was also shown by three witnesses on the part of the defendant that when the plaintiff was taken from the hole into which he had fallen he showed indications of intoxication. Two of these witnesses likewise testified that the plaintiff stated "he did not know how he came to be down there, except that he lost his hat, and went to get it out." These latter statements were disputed by the plaintiff. In view of the equivocal character of plaintiff's evidence and the uncontradicted testimony in respect to the perfect condition of the barrier immediately after the plaintiff received his injuries, we inust hold that the verdict is against the weight of evidence, and the motion for a new trial should have been granted.

Judgment reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

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