Opinion by SCRUGHAM, J.

Chilion Ford answered, "that he ought not to be required to account, because the time limited by law within which he might have been required to account as such administrator had elapsed long before the commencement of these proceedings, and that none of the claims of the petitioners against him as such administrator had accrued within the time limited by law for the commencement of proceedings to enforce the same, but were barred by the statute of limitations."

The Surrogate overruled this answer, and ordered him to render a final account. The Supreme Court on appeal reversed this order.

SCRUGHAM, J.:

In proceedings instituted by successor of an administrator, to compel an accounting by his predecessor, the Surrogate cannot make any decree for the payment or distribution of such part of the estate as may remain to be paid or distributed, but he may do so when the proceedings are taken upon the application of a person having a demand against the estate either as creditor, legatee, or next of kin. (2 R. S. 95, § 71.)

The prayer of the petition to the Surrogate was not merely for an accounting, but also that the Respondent should be required to pay over to the petitioners the property and effects of the

estate.

The petitioners applied in two characters: as successors of the administrators, and as persons having demands against the estate as legatees. There is no provision in the statute for such joint application, and the character of the proceeding instituted by the petition must be determined by the nature of the relief sought by it. If it had been merely for an accounting, it could be properly regarded as a proceeding by the successors of an administrator to compel their predecessor to account; but as it sought besides a decree of the Surrogate which could not be made upon such proceeding, but which might be proper upon an accounting, compelled by persons having a demand against the estate as legatees, it should be treated only as a proceeding instituted by the Appellants in that character.

Opinion by SCRUGHAM, J.

The Respondent was appointed administrator with the will annexed on the death of the last executor in 1842, was superseded on the 13th July, 1850, and the Appellants did not present their petition until the 16th June, 1860.

An action at law is given by statute to legatees entitled to share in the distribution of an estate (2 R. S. 114, § 9), and it may be commenced at the expiration of one year from the granting of letters testamentary, or of administration.

This remedy was barred by the statute of limitations, long before these proceedings before the Surrogate were commenced. Before the Revised Statutes, there was no statutory limitation of the time within which suits might be commenced in the Court of Chancery, and yet it was uniformly held, that when the claim was one which could have been enforced by an action at law, the statute of limitation which barred the remedy at law, would be applied to the suit in Chancery; that the equitable remedy, in a case of concurrent jurisdiction, is subject to the same limitation as the legal. John B. Murray, &c., v. John G. Costar, &c., 20 Johns. 576-610; Kane v. Bloodgood, 7 Johns. Ch. 91.

The principles upon which this doctrine was established in Courts of Equity, are equally applicable to proceedings in Surrogates' Courts, and it was accordingly held by the late Chancellor in McCarter v. Camel, 1 Barbour's Chancery Reports, 465, that the Surrogate could not entertain proceedings to enforce the payment of a distributive share of an estate, which were not instituted before the expiration of the time within which the distributee might have brought an action under the 9th section of the statute, to which reference has been made.

The judgment should be affirmed with costs.

All concur.

Affirmed.

JOEL TIFFANY,

State Reporter.

Opinion by PARKER, J.

LAURA P. SMITH, EXECUTRIX, &c., OF ANSON D. SMITH, DECEASED, RESPT., agst. RUSSELL MARTIN ET AL., ADMS., &c., OF JOHN K. COMSTOCK, IMPLEADED, &c., APPTS.

PARKER, J.-The Appellants in this case, when it was reached in its order on the calendar, failed to appear and furnish papers on which it could be heard. The Respondent appeared and submitted the case on her part, upon her printed brief, in accordance with the 25th rule of the Court. The Appellants have, also, failed since to submit points pursuant to the said rule.

The judgment must, therefore, be affirmed of course (Kelly v. McCormick, 28 N. Y. R. 323).

All concur except GROVER, Justice, who is absent.

Affirmed.

JOEL TIFFANY,
State Reporter.

Statement of the Case.

SAMUEL COTT, EXECUTOR OF ISAAC COTT, DECEASED, v. THE LEWISTON R. R. CO., APPELLANTS.

Railroad Company-Duty of, on Diversion of Stream.

When a railroad company, in the construction of its road, finds it necessary to change the channel of a stream, and thus divert its course; and, for that reason, constructs a new channel to restore and preserve the stream in its former usefulness to owners of land through which it passed; such company is not only bound to construct such new channel, but is also bound to keep it in a suitable and proper condition, so as not only to restore but to preserve the stream in its former usefulness as near as practicable.

APPEAL from judgment of Supreme Court.

In 1853 the Plaintiff's testator owned a farm in fee, situate in the town of Niagara, across which run a small stream of water, supplying water for stock, &c. The Defendants, a railroad corporation, having located its road through said farm, obtained from the testator a conveyance of the necessary land for its construction, and also the right of constructing its road through the adjoining farm, situate above the Plaintiff, owned by Voght.

In the construction of Defendants' road, it became necessary to make a deep cut in the channel of the stream, which would deprive the Plaintiff's testator of the use of the stream, by conveying the water into Niagara River, unless an artificial channel was constructed upon the lands of Voght. For this purpose, the Defendants acquired from Voght the right of constructing a new channel for the stream upon his land, and in the fall of 1854 made the channel and turned the stream into it, which conducted the water to the testator's farm in the same manner as before. During the ensuing winter the new channel was made upon the upper side of the said road, and parallel with the deep cutting therein through limestone rocks, and in the spring of 1855 the water commenced escaping from the new channel through the fissures in the rocks into the deep cutting of the railroad, and continued so to escape in such quantity as to deprive the Plaintiff, for a considerable portion of the year, of the entire water of the

Opinion by GROVER, J.

stream. It appeared upon the trial, that the new channel upon Voght's farm might have been repaired at a small expense, so as to prevent the escape of the water therefrom, and thus pre'serve the utility of the stream for the testator's farm. The Defendants totally neglected to repair the channel, and the testator in March, 1859, commenced this action to recover his damages for the diversion of the water. Upon the trial at Circuit, the Defendants' counsel requested the Court to charge the jury in substance, that if the Defendants made the new channel suitable and proper to preserve therein and conduct the stream of water upon the farm of the Plaintiff as it had before run, as far as could be discovered at the time, although the water should subsequently escape and be diverted from causes not discoverable at the time, or from other causes, such as fissures in the rocks, &c., caused by the elements subsequently, the Plaintiff could not recover. The Court refused so to charge, and Defendants' counsel excepted.

The Court in substance charged that the Defendants were bound to restore the stream as near as practicable to its former state of usefulness; and if it had not done so it was still its duty so to do, and that if the Plaintiff had sustained damage from a neglect of this duty, he was entitled to recover. The Defenddants' counsel excepted to this portion of the charge. A verdict was rendered for the Plaintiff, upon which judgment was entered, which was affirmed upon appeal by the Supreme Court. Whereupon the Defendants appealed to this Court.

GROVER, J.-The exceptions to the refusal of the Court to charge as requested, and to the charge as given, fairly I think raise the question whether, if a railroad company in the construction of its road finds it necessary to change the channel of a stream, and thus divert its course, and for that purpose constructs a new channel, the company is bound to keep such new channel in a suitable and proper condition, so as not only to restore but preserve the stream in its former state of usefulness as near as practicable. The 5th clause of Sec. 34 of the General Railroad Act (2 R. S. 681) among other things empowers railroad companies to construct