Opinion of the Court, per FINCH, J. children's trustee. These children thus had a vested interest in the policy, increasing in value yearly with every payment of additional premium. That interest was measured and represented by its surrender value, which was never the property of John Lindemann in any other sense than as the trust property of the children, created by his act as trustee. He could not deal with it in contravention of their rights, especially with one fully apprised of those rights and of his position and duty as trustee. That he kept the policy in his own possession is an immaterial circumstance, for that possession was consistent with the trust, and in entire accordance with its terms. On the face of the contract he dealt and acted as trustee for the children, and had no personal or individual interest in the policy, and no control over it, except in his trust character and capacity. What he undertook to do was to destroy the trust by substituting a new and different beneficiary. The policy was issued in September of 1863, and for fifteen years the premiums had been paid. There was no covenant on the part of the company to pay a surrender value, but that value, nevertheless, existed, and what it was sufficiently appeared when the new negotiations began. The premium due September 24, 1878, was not paid on that day, but on the twenty-eighth of that month the trustee surrendered the policy to the company and took out a new one calling for the same annual premiums, but payable to his second wife as the sole beneficiary. There was no new examination; the substituted policy bore the number of the one canceled; it was for the same amount; it called for the same annual premium, and stated the same age of the applicant life as thirty-nine years, adding, as explanation, the words "in 1863." The first premium was paid, in part at least, by a dividend earned by the older policy, and the new one was made possible by the appropriation to it and the absorption by it of the surrender value of the old policy. What that amount was is indicated by the acknowledgment in the new policy of the receipt by the company, not only of the premium, but of the further sum of $1,429.44, "to be paid on delivery of this policy by Louise Lindemann, wife of John Opinion of the Court, per FINCH, J. Lindemann." She paid it simply by the cancellation of the old policy and the transfer of its surrender value to the company in reduction of the annual premiums, and by the process took away that amount from the original beneficiaries and appropriated it to her own use. This was accomplished by the joint act of John Lindemann, the trustee for the children, and the company liable for the insurance. It is justified, first, upon the ground that by the failure to pay the premium of 1878 the old policy lapsed and all rights under it were ended and destroyed. John Lindemann, it is argued, was under no obligation to continue the payment of premiums and so preserve the validity of the policy; his contributions were voluntary, pure gifts and without consideration, and involved no duty to continue them beyond his wish and convenience; and when he refused further payments he simply did as he had a right to do, and was guilty of no wrong to the children by suffering the policy to lapse. All that is quite true, except that after notifying the beneficiaries of the trust. which he had voluntarily constituted for their benefit, and acting upon it until it had become valuable to them, good faith required that he should not end the trust without notice to them and an opportunity to preserve it if they should be so disposed, unless it be true that they had no interest or rights in the trust property whatever. But the difficulty with this argument is that the old policy did not lapse at all. The failure to pay the premium of 1878, if there was such failure, was waived by the company in issuing the new policy. That was, in all respects, a continuation and renewal of the old policy, altered only by the substitution of a new beneficiary. Substantially that was determined in Barry v. Brune (71 N. Y. 261). It is suggested that the facts in that case were that the lapse of the canceled policy was arranged beforehand by collusion with the insurance company, while here the lapse occurred as a fact, without the pre-existing knowledge or assent of the insurer; and it is urged that the latter's good faith. should end in a different ruling. But good faith cannot be asserted of one who aids in the diversion of a known trust Opinion of the Court, per FINCH, J. fund from its lawful owners to the possession and benefit of another; and the fact of waiver is not changed by the motive, good or bad, of the insurer. The issue of the new policy in continuation of the old one and in preservation of all the essential rights of the latter, distinguishes this case from Whitehead v. New York Life Insurance Company (102 N. Y. 143) so far as the question of waiver is concerned, for there no new policy was issued at all, and the gratuity paid to obtain possession of the lapsed policy was consistent with a constant and continued assertion of its invalidity. But the defendant in this case takes still another ground. Assuming that by the policy John Lindemann contracted, as trustee, for the children, it is insisted that the trust was revocable at the option of the trustee, and was so far executory as to be capable of revocation. But I think it is a mistake to assume that the trust was wholly executory. It had been to a large extent executed. Every payment of premium for fifteen years had steadily added to the value of the policy as the property of the beneficiaries. The day of final payment grew nearer and the burden of premiums decreased steadily in number. Each payment made added to the surrender value and fully executed the gift to the extent of that value. What the insured had done for the benefit of the assured he could not undo without their assent, nor take from them what was already theirs and destroy the trust so far as executed. The question here does not reach the inquiry what might be the rule in a case where the insured contracted, in his own name, though for the ultimate benefit of others, for here he contracted explicitly as trustee, and, so far as the trust was executed, neither he alone nor he and the insurer together could wrest from the beneficiaries the product of the trust and divert it into other channels. These views of the case differ from those taken by the General Term, and require that the judgment should be reversed, and a new trial granted, costs to abide the event. All concur. Judgment reversed. Statement of case. GEORGE CHAPMAN, Sr., Respondent, v. THE CITY OF ROCHESTER, Appellant. Plaintiff owned and occupied cortain premises, across which ran a stream (Argued June 4, 1888; decided October 2, 1888.) APPEAL from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made April 17, 1886, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. This action was brought to restrain the defendant from polluting a natural stream flowing through plaintiff's premises and to recover damages caused thereby. The plaintiff was awarded at Special Term $1,200 damages for present injury and an injunction to restrain the nuisance complained of. The material facts appear in the opinion. Charles B. Ernst for appellant. The defendant is not liable for any defilement of the stream due to the natural drainage of the area described in the complaint. (Rutherford v. Village of Holley, 105 N. Y. 632; Merrifield v. Worcester, 110 Mass. 219, 220; Washburn & Moen Mfg. Co. SICKELS-VOL. LXV. 35 110 273 126 635 127 268 127 594 110 273 128 153 110 273 135 244 Statement of case. v. Worcester, 116 id. 458.) The injunction ought not to have been granted for the reason that the system of sewerage complained of is the growth of many years, and completed in the course of those years without any objection on the part of the plaintiff, and at an extremely large expense to the defendant or its taxpayers within the territory drained. (Elevated R. R. Case, 3 Abb. N. C. 348, 358, 367, 368, 369; Amoskeag Mfg. Co. v. Garner, 6 Abb. Pr. [N. S.] 265, 277 [n. 15], 278, 279; Thursby v. Mills, 11 How. Pr. 116; 2 Story's Eq. Jur. § 959; Swain v. Great Northern Ry. Co., 9 Jur. [N. S.] 1196; Atty. Genl. v. N. Y. & L. B. R. R. Co., 24 N. J. Eq. 49; Williams v. Earl of Jersey, Craig & Philips Chan. R. 92; Swaine v. Seamens, 9 Wall. [U. S.] 254; Jones v. Royal Canal Co., 2 Molloy, 319; Odlin v. Gove, 41 N. H. 465; Wood v. Sutcliff, 2 Jur. [N. S.] 163; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Ripon v. Hobart, 3 My. & Keene, 169; Binney's Case, 3 Bland Ch. 99; Southard v. Canal Co., 1 N. J. Eq. [Sax.] 518; Hulene v. Shreeve, 5 id. [3 Greene] 116.) The injunction should not be allowed to stand for the reason that it asks of the defendant an impossible act, but if it were otherwise the act required will be productive of such extreme hardship and so onerous to the defendant, and of so little benefit to the plaintiff, it should not be required. (Trustees of Columbia College v. Thatcher, 87 N. Y. 311, 317; Crooke v. Flatbush WaterWorks Co., 27 Hun, 72, 73; Clark v. Rochester, etc. R. R. Co., 18 Barb. 350, 355, 356; Health Dept. of N. Y. v. Purden, 99 N. Y. 237, 241; T. & B. R. R. Co. v. B. H. T. & W. R. Co., 86 id. 108, 126, 127.) As full compensation can be obtained by the plaintiff in money damages for any possible injury that may be done him in the future by reason of the discharge of sewage from the outlet sewer, and the city of Rochester is amply responsible for any such damages, the injunction was improperly granted. (T.& B. R. R. Co. v. B. H. T. & W. R. Co., 86 N. Y. 108, 123, 126, 127 Kilbourne v. Allyn, 7 Lans. 352; Power v. Village of Athens, 19 Hun, 165, 167, 168; Savage v. Allen, 54 |