
    Thomas J. McKee et al., as Executors, etc., Resp’ts, v. New York Elevated Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 15, 1894.)
    
    
      1. Railroads—Elevated—Injunction.
    An elevated railroad will not be enjoined on condition that it pays the value of the easements taken, where the plaintiff has only a life estate and no power of sale.
    
      %. Same—Alternative provision.
    An alternative provision in the judgment, requiring the road to condemn the easements within three months, does not give sufficient time for the condemnation proceeding.
    
      Appeal from a judgment in favor of plaintiffs.
    
      Arthur O. Townsend, for app’lts; William R. Page, for resp’ts.
   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 payme.nt 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 will, 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 taken 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, appointed 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.  