Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. house of the plaintiff, injuring the furniture and clothing therein, rendering the same unwholesome, uncomfortable and unsuitable as a habitation; that on account of such gases, sparks, smoke, soot, cinders, coal dust and dirt, coming upon and into the premises of plaintiff, the plaintiff has suffered irreparable injury and the rental value of the premises has been reduced from thirty-one dollars per month to twenty dollars per month; that the injuries to plaintiff's premises are of constant repetition and will be necessarily continued so long as the structure of defendant shall remain and be used as at present; that on account of the continuous character of such injuries, plaintiff has no adequate redress by actions at law, and that a resort to such actions would lead to a multiplicity of suits. As conclusions of law it was found: First. That the structure of defendant mentioned in the complaint, consisting of coal bins or pockets and trestle as at present used, is a private nuisance to plaintiff. Second. That the defendant, its officers, agents and servants, should be perpetually restrained and enjoined from depositing in and taking from said structure coal in such manner as to set afloat in the air and cast or deposit upon or into the premises of the plaintiff, smoke, soot, cinders, sparks, dust or dirt. Judgment was accordingly ordered, together with the damages for the loss of rental value of the premises from December 1, 1890, to September 1, 1894, to the amount of $500. The referee, in effect, finds that the defendant had erected and was maintaining a structure which, as used by it, constituted a private nuisance to the property of the plaintiff. The evidence is, we think, sufficient to sustain the conclusion. But the defendant claims. that the right to erect and use this structure in coaling its engines is necessarily and materially incident to the operation of defendant's railroad, and, therefore, embraced within its franchise, and is not a nuisance, although it may operate as such, and that the plaintiff has no remedy. In The case of Cogswell v. N. Y., N. II. & II. R. R. Co. (103 N. Y. 10) seems to be somewhat in point against that proposition. that case the defendant erected upon a lot adjoining a dwelling house owned by plaintiff an engine house and coal bins for its road, and used the same in operating it, with results to the adjoining FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. property quite similar to those in the present case. It was held that the engine house as used was a nuisance; that legislative authority to run its trains over the railroad was not a legislative sanction to the committing of such a nuisance; that an action was maintainable to recover damages and to restrain the nuisance, and that in such action it was no defense that it was necessary for defendant to have its engine house located where it was, or that in the management thereof it exercised all practicable care. It is said that "the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury." "It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others." The defendant in the present case is a foreign corporation, and operates and uses the road and structures in question as lessee of the New York, Lackawanna and Western Railway Company, a corporation organized under the provisions of chapter 140 of the Laws of the State of New York, passed April 2, 1850, and the laws amendatory thereof. No special legislative sanction is shown for the structure in question. Prior to its erection in 1890, the defendant used a similar structure, though not so large or convenient, that was located in a place a considerable distance from the plaintiff, and its use did not interfere with the use of plaintiff's property. The defendant or its lessor had other lands where the new structure might have been placed, though not so convenient. The doctrine of the Cogswell case was approved in Bohan v. Port Jervis Gas Light Co. (122 N. Y. 27); Hill v. Mayor, etc. (139 id. 502); Morton v. Mayor, etc. (140 id. 212); and so it was in Booth v. R., W. & 0. T. R. R. Co. (140 id. 267, 272), cited on the part of the defendant. In the Booth case a distinction is pointed out between acts and uses of property which are permanent and continuous, and temporary acts resorted to in adapting premises to some lawful use. The question there considered related to the latter class of acts. In Flinn v. N. Y. C. & II. R. R. R. Co. (142 N. Y. 11) the Cogswell Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. case was not questioned, and the issue was unlike the one there and here involved. In Pettit v. N. Y. C. & H. R. R. R. Co. (80 Hun, 86) it seems to have been held that the evidence was not sufficient to show that the structure complained of and its use was a nuisance, so that the doctrine of the Morton (140 N. Y. 207) and kindred cases did not apply. The principle of the Cogswell case should, we think, be applied to the present case. No point is made by the defendant as to the amount of the damages awarded. HARDIN, P. J., and MARTIN, J., concurred. Judgment affirmed, with costs. 88 3891 CATHARINE C. ELLERSON, Appellant, v. ELIZABETH P. WESTCOTT 148 149 All questions arising between parties in regard to their respective titles and rights The apparent devise is a cloud on the title, and the plaintiff has a right to have An allegation that a person procured the death of the testator involves only the question as to the capacity of the party to take under the will and is to be treated like any other question of capacity. A complaint in partition containing such an allegation is not demurrable upon the ground of a misjoinder of causes of action. APPEAL by the plaintiff, Catharine C. Ellerson, from an order of the Supreme Court, made at the Chenango Special Term and entered in the office of the clerk of the county of Otsego on the 18th day of February, 1895, denying her motion for leave to serve an amended complaint. FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. The denial of the motion was, as stated in the order, "upon the ground that in this action, which is an action of partition, the plaintiff cannot join therewith a cause of action such as she proposes to introduce by said amended complaint, to wit, an action to declare forfeited defendants' rights claimed under the will, and because the proposed amended complaint would render the complaint demurrable for misjoinder of cause of action, and the motion is not denied upon the ground that the granting thereof is discretionary with the court." A. D. Wales, for the appellant. Gilbert & Andrus, for the respondents. MERWIN, J.: In the complaint it is alleged that on the 9th of May, 1891, Munroe Westcott, of Oneonta, N. Y., died, being then seized in fee of a large quantity of real estate, which is in the complaint fully described; that the plaintiff is the sister of said Westcott, and that she and certain of the defendants, who are the children or descendants of another sister, constitute all of his heirs and next of kin; that soon after his death a paper, purporting to be his last will and testament, was produced by the defendant Elizabeth P. Westcott, in and by which the testator, after devising three pieces of real estate to certain parties, devised the use of all the rest of his real estate to Elizabeth P. Westcott as long as she should live, and at her death directed that all the property left should be under the control of the defendant Ganung for the purpose of establishing and founding a hospital at Oneonta; that the will was afterward admitted to probate by the surrogate of the county of Otsego, and letters testamentary thereon issued to the defendants Westcott and Ganung, two of the executors therein named, and that they have taken possession and assumed the control of the real and personal estate, claiming the right to do so as executors, and claiming rights and ownership in the property individually, as legatees and devisees under the provisions of said instrument; that the paper so admitted to probate is not the last will of the deceased; was not executed in the form and manner required by law, and that the deceased, by reason of mental infirmity, was incompetent to make a will, and that the Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. same was procured by undue influence and fraud; that the alleged will is not a valid instrument, but is void for uncertainty, and also in that it unlawfully suspends the power of alienation and attempts to create an invalid trust, and that none of the persons named as devisees acquired any rights in the property by virtue thereof; that the plaintiff, as heir at law of the deceased, is seized in fee simple of an undivided one-half of the real estate, and the other heirs at law are seized of the balance in the manner therein specified. Judgment is asked that the alleged will be declared null and void; that the plaintiff and the other heirs at law be declared the lawful owners of the real property and that partition be made. The amendment asked for consisted in inserting just before the demand for judgment an allegation that the defendant Elizabeth P. Westcott willfully, wrongfully and unlawfully, for the purpose of realizing under the alleged will, by the use of drugs, medicines, poisons, or other means, the exact particulars of which are unknown to plaintiff, caused and procured the death of said Munroe Westcott, and, therefore, is not entitled to take under the will. The question here is, whether the plaintiff has in any event the right to have the issue, presented by the amendment, tried and disposed of in this action. If the facts alleged in the amendment are true, the plaintiff in the proper forum has, according to the law laid down in Riggs v. Palmer (115 N. Y. 506), the right to have it adjudged that the devise to Mrs. Westcott is ineffective to pass to her any title, and that the plaintiff and the other heirs at law are, so far as any claim of Mrs. Westcott under the will is concerned, the true owners of the real estate left by the testator. That was the form of the adjudication in the Riggs case, which involved precisely the issue presented here. It follows, therefore, that the ownership and title of the property cannot be fully determined until the issue in question is disposed of. Section 1537 of the Code is as follows: "A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died, holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent and possession under such |