#### McKEE et al. v. NEW YORK EL. R. CO. et al.

(No. 1.)

(Supreme Court, General Term, First Department.

June 15, 1894.)

1. Elevated Railroads—Injunction—Inequitable Judgment.

A judgment enjoining the operation of an elevated railroad unless it' pays plaintiffs the value of the easements appurtenant to their premises is inequitable where it appears that plaintiffs had only a life estate in the premises, without a power of sale, and will be modified by striking out the alternative as to the payment of money.

2. Same—Proceeding to Condemn.

An alternative provision in the judgment, requiring defendants to condemn the easements within three months, does not give sufficient time for the condemnation proceeding.

Appeal from special term, New York county.

Action by Thomas J. McKee and others, as executors, against the New York Elevated Railroad Company and another. There was a judgment in favor of plaintiffs, and defendants appeal.

Modified.

Argued before O’BRIEN, FOLLETT, and PARKER, JJ.

Arthur O. Townsend, for appellants.

William R. Page, for respondents.

PER CURIAM.

By the judgment the trial judge directed, as the alternative to the injunction, that defendants pay a certain sum of money, found to be the value of the easements, upon the payment of which they were to receive a conveyance and release of the property or easements affected. It is conceded that, by the will appointing the plaintiffs executors and trustees, they were given a life estate in the property, without a power of sale. Under such *458will, therefore, the trustees or executors have no present power to-sell any of the testator’s real estate, and could not, therefore, give-the conveyance or release required as a condition for the payment by defendants. The latter have a right to have the alternative to-the injunction fixed upon equitable principles, which includes the right to receive a valid title to the easements to be paid for. It is true that three months were also given, within which the defendants had a right to condemn; but with knowledge of the character-of such proceedings, and the time which necessarily would be taken1 up, we think the period fixed,—of three months,—in which to condemn, was too short. As they could not, therefore, condemn within that time, we have here a case where an injunction is to issue unless-the defendants shall pay a sum, and accept a conveyance or release which would concededly be invalid. The force of this objection is-sought to be met by the suggestion that before the injunction goes-into operation the plaintiffs will have obtained power to sell the-easements, under chapter 209 of the Laws of 1891. By this act,, power is given to the supreme court to authorize the mortgaging or-sale of real estate, under certain conditions therein enumerated; but we have grave doubt as to its being applicable to a conveyance- or release of easements by trustees, such as plaintiffs here, op-. pointed under a will. It is not, however, necessary for us to determine that question at present, as we think that the rights of the-parties should have been determined by their situation at the time of the entry of judgment; and, when it then appeared that the plaintiffs had no power to give a valid release or conveyance, the court should not have directed them to pay, as an alternative for the-injunction, a sum of money. The defendants have had ample time since their road was constructed within which to condemn the property, and, under the circumstances here appearing, the proper alternative would have been to direct that an injunction issue, unless, within a reasonable time, they took condemnation proceedings, and acquired the easements. Our conclusion, therefore, is that the judgment should be modified by striking out the alternative as to the payment of the money, and receiving -the release or conveyance, and by directing that an injunction absolute issue, unless, within-six months after the entry of the order upon this appeal, -the defendants shall have condemned such easements, with costs to appellants. All concur.