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Although a testator gives an express power of sale to his executors of only certain specified real property, yet if it plainly appears from the will that it was the intention of the testator that his executors should make

a complete division and distribution of his entire property upon the happening of a certain event, and such division cannot be made without a sale of his real property, a

power of sale of such real property will be impliedly given to the executors and they can convey a good title to such property.

Case agreed upon and submitted without action pursuant to §1279

of the Code of Civ. Pro.

tor's widow, the plaintiff, who was his only surviving executor, entered into a contract to sell No. 152 Front street to the defendant, who subsequently refused to complete his purchase on the ground that the plaintiff had no power to sell and could not convey a good title.

Porter & Kelvert, for pltff.

J. C. O'Connor, Jr., and S. B. Brownell, for deft.

Held, That the premises No. 152 Front street, New York city, pass

ary clause of the will, since a will so framed and executed passes all the real estate which the testator was entitled to devise at the time of his death. 3 R. S., 6th Ed., 58, §7; 86 N. Y., 215.

Harry Messenger died in 1880, leaving a will, by which, after giv-ed to the executors by the residuing various legacies and after providing for the maintenance of his wife during her life or widowhood, he devised to his executors all the rest, residue and remainder of his estate, both real and personal, in trust to invest and keep invested all moneys in bond and mortgage and in certain specified stocks, and to divide the income so derived among his children and widow in a certain specified way, and after the death of his wife to divide his estate into as many shares as he should have children living at that time and children who might have died leaving issue then living, and to pay over such shares to his said children or the issue of those who were dead in a certain specified manner. No express power of sale was given to his executors in regard to any real estate, with the exception of two specified parcels as to which said power was given. Subsequent to the execution of his will the testator acquired certain real property, known as No. 152 Front street, New York city, and after the death of the testa

That it was plainly the intention. of the testator to make a complete and effectual distribution and division of his property upon the death of his wife, and since that could not be done without a sale of the Front street property and its conversion into money, it is evident that he designed and intended to invest his executors with the power to sell this property, and in such a case a power of sale may be implied when it has not been expressly given. 25 Hun, 6, 10; 8 Barb., 19; 39 How., 102; 2 Coms., 19, 36; id., 297, 305–6; 1 Seld., 136; 85 N. Y., 53, 60; 95 U. S., 591.

Judgment for plaintiff, requiring defendant to complete his purchase.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

MECHANICS' LIENS.

N. Y. COURT OF APPEALS.

Kenny v. Apgar et al.

Decided Oct. 23, 1883.

In an action to foreclose a mechanic's lien

under Ch. 478, Laws of 1862, all the lienors, both prior and subsequent to plaintiff, are proper parties defendant. The judgment in such an action may properly provide for a sale of the premises on behalf of all lienors who are made parties and for payment to them of their liens according to their priority.

A sidewalk in front of a building is an appurtenance thereto within the meaning of the lien law.

It is not necessary to the validity of the lien that a copy of the notice of lien should be

served on the owner.

sale of the premises was asked for in satisfaction of plaintiff's lien and also a personal judgment against L. & E. for the amount of the debt due plaintiff. The other lienors appeared and answered in the action, setting forth the particulars of their respective liens, and asking for an account and sale. of the premises and to have the proceeds applied in satisfaction of their respective liens. They also alleged an indebtedness from P. to L. & E, on account of the contract beyond the amount of their respective liens. Defendant P., and also defendant A., a subse quent grantee of the premises, answered. The court found the

forth in the pleadings, and also that there was a balance unpaid on the contract with L. & E., and directed a sale of the premises to satisfy the several liens and the costs adjudged in the proceedings and directed them to be paid out of the proceeds of the sale in the order of their priority as determined by the court. The owners of the property alone appealed.

This was a proceeding to fore-existence of the several liens set close a mechanic's lien under Chapter 478 of the Laws of 1862. It appeared that in November, 1878, defendant P. owned certain lots in the city of Brooklyn and contracted with defendants L. & E. to complete certain buildings thereon and make certain improvements, including the flagging of a sidewalk in front of said lots, for which P. agreed to pay $5,100, the payments to be made as the work progressed. Plaintiff under a contract with L. & E. furnished the flagging, laid it and performed some other work upon the premises, for which he filed a lien April 27, 1879. The defendants, other than the owners of the premises and the contractors, are lienors upon the same premises for work and materials done and furnished to L. & E. upon their contract with P., some of them being prior to plaintiff's. An accounting and

Vol. 18.-No. 4.

H. C. M. Ingraham, for applts. N. C. Moak and F. P. Bellamy, for respt.

Held, That under the act of 1862 lienors prior to the plaintiffs were properly made defendants in the action; that according to the general practice in equity subsequent lienors were properly made defendants for the purpose of having the amount and priority of their respective liens established, and a judgment may properly provide for a sale of the premises in

behalf of all lienors when made parties to the proceedings, and for the payment to them of their liens i according to their respective rights. A proceeding for the foreclosure of a mechanic's lien is analogous to the proceedings for the foreclosure of a mortgage. Story's! Equity Pleadings, § 193; 8 Paige, 511; 10 id., 395; Hopk., 277; Code Civ. Proc., $$ 1204, 521; 4 Abb. Ct. of App. Dec., 253.

Also held, That the court had power to adjudge costs to be paid. in favor of the co-defendants against the owner. Laws of 1862, Chap. 478, §§ 6, 9, 13.

It was claimed that as the lot of the owner is bounded by the side. of the street and does not include it the expense of constructing the sidewalk could not be made a lien upon the lot, under the act of 1862.

Held, Untenable; that a sidewalk in front of a building is an appurtenance thereto within the meaning of the lien law. 52 N. Y.,

346.

Also held, That it was not necessary to the validity of the lien that a copy of the notice of lien should be served upon the owner. That was only necessary to prevent payments by the owner to the contractor after the filing of the lien to the prejudice of the lienor. 69 N. Y., 618.

Judgment of General Term, affirming judgment of trial court, modified and as modified affirmed. Opinion by Andrews, J. All

concur.

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MORTGAGE.

N. Y. COURT OF APPEALS.

Wadsworth, applt., v. Lyon et al., respts.

Decided Oct. 2, 1883.

A mortgagor can only shift his primary lia-
bility to pay the bond to the land by a con-
veyance subject to its payment or by de-
ducting the amount from the consideration
or by an agreement between the parties
changing such liability.

A mortgagor sold the mortgaged premises and
received the full consideration thereof, the
deed containing no reference to the mort-
gage.
Plaintiff purchased the premises on
foreclosure, but the sale was not completed
and no report was made. Plaintiff then
purchased of the grantee of the mortgagor
and afterwards took an assignment of the
judgment of foreclosure and the bond. In
an action on the bond, Held, that the sale on
foreclosure was no defense and that the
failure to complete it did not damage defen-
dants; that plaintiff had a right to sue
simply as assignee and was not obliged to
set up his equities in his complaint.

This was an action upon a bond given as collateral to a mortgage. It appeared that the premises covered by the mortgage were sold by the mortgagor, who received the full consideration for them. The deed was not subject to the payment of the mortgage and contained no covenant of title on the part of the grantor. The mortgage was foreclosed and plaintiff bid off the land for more than the amount due on the judgment. No note, memorandum or report of sale was made and plaintiff paid nothing on his bid and nothing has been demanded of him. He subsequently purchased the premises and received a conveyance of them from the grantee of the mortgagor.

He also took an assignment of the judgment of foreclosure and the bond and then obtained leave of the court to bring this action. George Wadsworth, for applt. Grover Cleveland and Samuel Hand, for respts.

Held, That the sale under the judgment of foreclosure, although plaintiff could be held under it, did not affect defendants' rights and furnished no defense to them, as they were bound to pay the bond and could not ask to have the land sold to discharge the debt. A failure to complete the sale did not damage them and they acquired no equities thereby. The mortgagor remained the principal debtor and the land was simply security for the debt. He could only shift his primary liability to pay the bond to the land by a conveyance subject to its payment, or by deducting the amount from the consideration for the conveyance, or by an agreement between the parties changing such liability. The grantee of the mortgagor had a right to pay the bond to save the land and enforce it as surety against the obligor.

Also held, That plaintiff had a right to sue simply as assignee of the bond and prove his equities in answer to any defense sought to be established by defendants; he was not obliged to set up his equities in his complaint.

Judgment of General Term, affirming judgment for defendants, reversed and new trial granted.

Opinion by Earl, J. All concur, except Miller and Danforth, J J., dissenting.

STREETS. RAILROADS.

N. Y. COURT OF APPEALS.

Byrne, an infant, respt., v. The N. Y. C. & H. R. RR. Co., applt.

Decided Nov. 20, 1883.

The statute requiring certain signals to be given by the engine at road or street crossings is intended for the protection of persons crossing the track while travelling on a street or road which is both travelled and public.

An alley which is only used at one end by teams which turn before reaching the track is not a travelled street within the meaning of the statute.

Reversing S. C., 15 W. Dig., 518.

This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. The sole question on this appeal is whether that portion of the alley where the injury occurred was a "travelled public road or street," before crossing which defendant was bound to give the statutory signals. It appeared that this alley extended on paper from Madison St., in Troy, northerly to the south side of the Poesten Kill creek. It was crossed about midway by defendant's track. The only evidence of any travel upon it was that at its south end, where it entered Madison St., there was a store, and that teams would enter the alley from Madison St. to receive goods from the store, and would then turn around before reaching defendant's track. Plaintiff's father, who had lived many years in the immediate locality, testified that there never was any travel upon the alley except south of defendant's track; that

there was no occasion for travel across defendant's track, as there was no bridge across the creek over which travellers could pass.

Esek Cowen, for applt. R. A. Parmenter, for respt. Held, That the alley in question was not a travelled street or road within the meaning of the statute; that the statute is intended for the protection of persons crossing the track of the railroad when travelling on the public street or road and such street or road must be both travelled and public. 64 N. Y., 535.

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guests and not boarders, and that defendants were liable. Affirming S. C., 13 W. Dig., 208.

This action was brought to recover the value of property, consisting of jewelry, &c., stolen from plaintiff's room while an inmate of defendants' hotel in the city of New York. The referee found that H., plaintiff's husband, was an officer in the United States army, and that in November, 1873, he applied for rooms and board, at defendants' hotel, for himself and family; that after some conversation with defendants in regard to H. and his family remaining at defendants' hotel, in which certain rooms in a private house adjoining the hotel which defendants were then using in connection with the same were mentioned; that defendants stated their terms for the rooms and H. accepted them on the understanding that he should occupy them

Hancock, respt., v. Rand et al., until the next spring or summer, applts.

Decided Nov. 20, 1883.

Officers of the army and navy and soldiers and sailors who have no permanent resi

dence may be regarded as travellers when

stopping at public inns or hotels, and to make them chargeable as mere boarders it must be satisfactorily shown that an explicit contract has been made which de

prived them of the privileges and rights

conferred on them by their vocation.

Gen. Hancock applied to defendants for board for himself and family in Nov., 1873, and stated that he would remain until

spring if everything was satisfactory and he was not ordered away. He was assigned rooms in a private house adjoining the hotel. The statutory notice was not posted

in these rooms. In an action to recover for goods stolen from said rooms, Held, That H. and his family were transient

provided everything was satisfactory and he was not sooner ordered also found that H. and his family away on military duty. It was immediately prior to their going to defendants' hotel had been boarding at another hotel in New York city, and had no permanent home anywhere; that, prior to 1873 and ever since, H. had been at different places, wherever his military headquarters were. The referee refused to find, as quested by defendants, that any substantial agreement had been made by H. as to the length of time he and his family should occupy said rooms. The referee's

re

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