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App. Div.]

Second Department, March, 1910. denies it rests upon him. Section 141 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 61) provides that the streets and public grounds of a village are under the exclusive control and supervision of the board of trustees of the village. Section 90 of the same act gives the board of trustees power to enact ordinances on various subjects, and more particularly as follows : “ To regulate or prevent incumbering the streets or public grounds with any material whatever, or any encroachment or projection in, over, or upon any of thic streets or public grounds, or any excavations immediately adjacent thereto."

In pursuance of this power, the trustees enacted ordinances, of which section 13 is as follows: “No person shall erect any piazza, steps, fence, or obstruction of any kind within the line of any street or sidewalk in said Village, under a penalty of ten dollars, and five dollars for each additional day said obstruction shall remain after notice to remove saine, from the President of trustees.”

Section 53 of the same ordinances forbids any owner or occupant of a lot or tenement to “cause or permit any public nuisance to be, or to remain in such tenement or upon such lot, or between the same and the centre of the adjoining street," and directs the president of the village to forthwith serve a notice upon the owner or occupant to abate the nuisance, and provides a penalty for noncompliance on the part of the occupant. Section 54 of the ordinances provides that in case the owner or occupant fails to comply with the notice served under section 53, “ the said nuisance may be abated by the street commissioner of said Village at the expense of such owner or occupant.”

Among the duties cast upon the president of the village by sec. tion 80 of the Village Law there is a specification as follows: “It is his duty to see that the provisions of this chapter, and the resolutions and ordinances of the board of trustees, are enforced, to cause all offenses created thereby to be prosecuted,” etc.

It is reasonably clear, therefore, that the duty of taking steps to enforce the removal of encroachments from the public highways of the village of Tarrytown is a ministerial duty of the president of the village. Neither the ordinances, nor section 8t of the Village Law which defines the duties of the street commissioner, cast any duty upon that official in regard to street encroachments or public

Second Department, March, 1910.

[Vol. 137. nuisances until the village president has acted. The fact that the petitioner has a private interest in securing the removal of an encroachment upon a public highway does not deprive her of the right, as one of the public, of demanding the enforcement of the public right, nor would the fact that she had no private interest in any way interfere with her assertion of the public right. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390; People ex rel. Stephens v. IIalsey, 37 id. 314, 348.)

On this record the petitioner has made out a case which in the discretion of this court entitles her to the issuance of a writ of mandamus, either peremptory or alternative, as the court may deem fit, against the respondent, the village president. As before indicated section 84 of the Village Law, which defines the duties of the street commissioner, casts no duty in the premises upon that officer, and so far as any duty is cast by the ordinances, it does not arise until after action under the ordinances by the village president. As the village president had taken no action the street commissioner was not in default, and the motion for a mandamus was denied properly as to him. As to the respondent, the village president, a writ should issue.

The order appealed from, in so far as it denies the motion for a writ of mandamus against the village president reversed, with ten dollars costs and disbursements, and ordered that an alternative writ against him issue. The order, so far as it denies the motion against the street commissioner is affirmed, with ten dollars costs and disbursements.

HIRSCHBERG, P. J., Thomas and Rich, JJ., concurred; WoodWARD, J., read dissenting opinion.

WOODWARD, J. (dissenting):

I am unable to concur in the opinion of Mr. Justice Carr. The rule in mandamus is that there must be a clear legal duty, involving no discretionary powers, and I fail to find in the papers any clear legal duty on the part of either of the respondents in reference to the fence which it is claimed has been erected within the limits of Cobb's lane. There appears to be a dispute as to the boundaries of this thoroughfare; there is a dispute as to whether the fence is in fact in the highway and to compel the respondents or either of them

App. Div.] Second Department, March, 1910. to remove this alleged obstruction and to take upon themselves the responsibility of determining the correct boundary lines of the way is not within the legitimate province of the writ of mandamus. The streets and public places of villages are within the jurisdiction and control of the board of trustees (Village Law [Consol. Laws, chap. 64; Laws of 1909, chap. 64], $ 141), not of the president, and the only provisions of the ordinances of the village of Tarrytown to which attention is directed are sections 13, 53 and 54. The last two sections obviously relate to matters involving the public health, and have no relation whatever to a common-law public nuisance, such as is here complained of, while section 13 merely declares that “ No person shall erect any piazza, steps, fence or obstruction of any kind within the line of any street or sidewalk in said village, under a penalty of ten dollars, and five dollars for each additional day said obstruction shall remain after notice to remove same, from the president of trustees.” The rule is well established that “The only liability which attaches to the infraction of an ordinance is the penalty which it imposes” (21 Am. & Eng. Ency. of Law [2d ed.], 1000), and section 13 of the ordinances of the village of Tarrytown does not, by implication, impose any other duty upon the president of the board of trustees than to give notice to those who may violate the ordinance to abate the obstruction as a condition precedent to the incurring of the penalty. There is nothing in the ordinances, properly construed, which imposes any duty on the president of the board of trustees to remove an obstruction from the highway; his only duty, if there is an actual obstruction, is to give notice, and then if the person obstructing the street persists he is liable to the penalty denounced against the act, but this involves no civil liability. (21 Am. & Eng. Ency. of Law [2d ed.], 1000.) It is conceded that there is no duty on the part of the street commissioner to act, and I am equally persuaded that there is nothing in the statutes or in the ordinances of the village which requires the president of the board of trustees to assume the burden of determining the boundaries of a highway, where they are in dispute, and to remove obstructions from the same. The questions here presented are too complex to come within the scope of mandamus, either peremptory or alternative, and I agree with the court below that the controversy should be tried out between the parties who are directly interested.

APP. Div.–VOL. CXXXVII. 6

Second Department, March, 1910.

(Voi. 131 Order, in so far as it denies the motion for a writ of mandamus against the village president, reversed, with ten dollars costs and disbursements, and ordered that an alternative wrií against him issue. The order, so far as it denies the motion against the street cominissioner, affirmed, with ten dollars costs and disbursements.

Orto M. DOPPMANN, Appellant, v. Charles Muller, as Committee

of the Estate of II ELENA M. DOPPMANN, Incompetent, and PETER J. RICHRATH, Respondents.

Second Department, March 31, 1910.

Parent and child — adoption - contract - agreement to give legacy to adopted children - contract construed — right of foster parent to make unequal bequests.

Wben a foster parent on adopting two children from an orphan asylum agreed that “provision shall be made by Will * * * giving to such adopted child a reasonable share" of his estate, “such as would be given if he were the father of said child,” he was not bound to divide his estate among them in the same

proportion they would receive as heirs. He was bound only to give such reasonable share of the estate as a parent would

give, and, hence, where the estate was small and one of the children, a male, married and was self-supporting, while the other, a female, was of weak mind and unable to care for herself, a will giving one dollar to the adopted son and the remainder to the daughter was reasonable and within the contract.

APPEAL by the plaintiff, Otto M. Doppmann, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 17th day of February, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Torm, dismissing the complaint upon the merits.

Charles II. Kelby, for the appellant.
Elmund F. Driggs, for the respondents.

Judgment attirmed, with costs, on the opinion of Mr. Justice Carr nt Special Term.

WOODWARD, JENKS, Burr, Thomas and Rich, JJ., concurred, The following is the opinion delivered at Special Term;

App. Div.]

Second Department, March, 1910. CARR, J.:

On November 1, 1887, one Charles Doppmann and his wife entered into a written agreement with the Managers of the Orphan Asylum Society of the City of Brooklyn, whereby that institution surrendered to Doppiann the custody of a child, one Otto Muller, then eleven years of age, during his minority. The agreement contained, among other things, the following provisions: “While this [agreement] has the full legal force of an indenture, it is further understood by and between the parties to this instrument that it shall be in fact an adoption of the child by the party of the second part (Doppmann], he obligating himself to do for and by such child in all respects as if he were its father; and that said child shall stand in that relation to him in every particular. But to avoid all questions in regard to the validity of such agreement in respect to inheritance or right as distributee, it is hereby agreed that provision shall be made by Will by the party of the second part giving to such adopted child a reasonable share of his estate, such as would be given if he were the father of said child.” At or about the same time a precisely similar agreement was made with relation to another child, Helena Muller, the sister of Otto Muller.

Doppmann took the custody and care of both children and they remained with him during their minorities and for some time there. after and assuned his name and became to liim in fact as if they were his children. The boy, Otto, some time after coming of age, left Doppmann, married and started off in life independently. The girl, Helena, remained with Doppmann until he died in July, 1906. On November 27, 1905, Doppmann made a will in which he left Otto, the plaintiff herein, the sum of one dollar, and in which he gave the the rest of his estate of the value of about $8,000 to Helena. This action is brought by Otto against Helena, wlio is the executrix of said will, to secure a judgment decreeing the specific enforcement of the adoption agreement as to Otto in such manner as to give him onehalf of the estate of the decedent. His theory is that by the agreement above recited, Doppmann bound himself to make provision by will for him to the same extent as one of the testator's children shonld take under the Statutes of Descent or Distribution, if there was no will. While there are several precedents in this State for the maintenance of an action for specific performance of agree

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