38 610 59 11 SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. of the property. The whole real estate is not devised, but only the equity of redemption, and the true income of the subject-matter devised is only the excess of the rental after deducting the annual interest charged on the incumbrance. But, in this case, the three mortgagors, the life tenant and the two remaindermen, were the primary debtors, and could have been sued at law on their promise to pay, without resort, to a foreclosure of the mortgage, which was merely security for the debt. Had any of the three paid either the principal or the interest, presumptively he would have been entitled to sue his co-obligors for their aliquot shares of the payment. The duty, therefore, rested on the remaindermen to pay the interest to the same extent as it did upon the life tenant, and one was just as responsible as the other for the default in interest, and for the foreclosure occasioned by such default. The view taken by the court below was, therefore, right. There seems to have been an error of fifty-eight dollars and ninety-seven cents made in the calculation of the county judge. Both parties have recognized its existence, and stipulated for its correction. I cannot clearly make out from the papers whether the mistake has actually been corrected. If it has not, the parties may hereafter apply to the county judge for a modification of his order. The order appealed from should be affirmed, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements. THE CITY OF POUGHKEEPSIE, Respondent, v. SIMON KING, Appellant. Power to ordain "fixed penalties" — it requires that a definite sum, not a sum less than one nor more than another sum, be prescribed. The charter of the city of Poughkeepsie (Laws of 1896, chap. 425, § 30), authorizing the common council of that city to enforce observance of its ordinances by "ordaining fixed penalties," does not authorize the passage of an ordinance which imposes as a penalty for its infraction a fine of not less than ten dollars nor more than twenty five dollars, and such an ordinance is invalid. App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. APPEAL by the defendant, Simon King, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 29th day of October, 1898, affirming a judgment of a justice of the peace. Frank B. Lown, for the appellant. J. L. Williams, for the respondent. CULLEN, J.: This action was instituted before a justice of the peace to recover a penalty prescribed by the common council for the violation of an ordinance which forbade the maintenance of lunch wagons in the street without a license. The defendant contends that he was protected under a license previously issued to him under another ordinance, and also that the ordinance under which the action is brought is void, because, instead of naming a certain sum as a penalty for its infraction, it provides that the offender shall be punished by a fine of not less than ten dollars or more than twenty-five dollars for each offense. Mr. Dillon says (Mun. Corp. § 341) that "A municipal corporation, with power to pass by-laws and to affix penalties, may, if not prohibited by the charter, or if the penalty is not fixed by the charter, make it discretionary, within fixed limits * * * The older English authorities, so far as they hold such a by-law void for uncertainty, are regarded as not sound in principle, and ought not to be followed." The English rule, however, prevails in New Jersey (State v. Zeigler, 3 N. J. Law, 262; Melick v. Washington, 18 id. 254), where it was held that the corporation must fix the precise penalty, and not leave its amount discretionary with the judge or jury. We do not find that the question has been decided in this State. But whatever the general rule may be, we think that the plaintiff, under its charter, was bound to enact a certain and definite penalty. That charter (§ 30, chap. 425, Laws of 1896, vol. 2, p. 478) provides: "The common council shall have power to enforce observance of all ordinances under the provisions of this act, by ordaining fixed penalties to be incurred for each and every violation of the same, not exceeding fifty dollars for any one offense, to be recovered with costs in a civil action in any court having cognizance thereof, SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. or to remit the same or any part thereof." Had the grant of authority been either to ordain penalties or to fix penalties, it may be that under the general rule the common council could have fixed penalties varying between prescribed limits. But we do not see how force can be given to the expression "ordaining fixed penalties," unless the precise amount of the penalty is prescribed. The Legislature might have intended that the power granted by it should be thus exercised and thus limited. The language used seems exactly adapted to express such an intent. The judgment of the County Court and that of the justice of the peace should be reversed, with costs. All concurred. Judgment of the County Court and that of the justice of the peace reversed, with costs. JAMES BARNES, Respondent, v. WILLIAM H. MASTERSON, Appellant. Piling sand against a brick wall on an adjoining lot liability for breaking down the wall -one who piles part only of the sand is liable. A sub-lessee of a vacant lot, who piles sand to a height of eighteen or twenty feet along a wall standing wholly upon adjoining land, with the result that the wall breaks down, is liable to the owner of the wall for the damages thus sustained. Semble, that the fact that the sub-lessee only piled the sand against the wall to the height of three feet, and then sold it, giving the vendee permission to use the lot for the storage of sand, and that the subsequent piling of the sand was done by the vendee, did not relieve the sub-lessee from liability, as it was the whole pile of sand which destroyed the wall, to which the sub-lessee's act was a contributing cause, which rendered him liable for the whole damage. APPEAL by the defendant, William II. Masterson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk's office on the 21st day of February, 1898, denying the defendant's motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department. App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. Charles G. F. Wahle, for the appellant. Brainard Tolles [George W. McAdam with him on the brief], for the respondent. CULLEN, J.: The plaintiff was the tenant for a term of years of a lot of land on West Fifteenth street in the city of New York. On this lot he had erected a brick structure, the first story of which was used as a blacksmith's shop, and the second as a dwelling place for his family. Immediately adjoining this building on the west was a vacant lot of which one Reilly was the tenant in possession. The defendant was a contractor engaged in digging out cellars and making other excavations. On December 10, 1895, the defendant hired the lot from Reilly for the term of one month, for the purpose of storing sand thereon. For three days sand was deposited on the lot, against the plaintiff's wall, to a height of some three feet. this work at least was done by the defendant. deposit of sand was continued until the eighteenth day of December, at which time the pressure of sand, it being some eighteen or twenty feet high along the plaintiff's wall, broke down the plaintiff's house and destroyed the personal property he had therein. For this injury to his property the plaintiff brought this action, and from the judgment entered therein in his favor this appeal is taken. It is conceded that From this time the There can be no doubt that there was an invasion of the plaintiff's property right, for which the persons responsible for the injury were liable to him in damages. The wall was wholly on the plaintiff's land, and the occupant of the adjacent lot had no right whatever to make use of it as a retaining wall for the support of material stored on that lot, any more than he would have had the right to cut openings into it and place beams therein for the purpose of supporting a building or other structure. Sand or gravel will not stand vertically without support, and, therefore, wherever it is deposited in such a way that the sides are vertical, it exerts a lateral thrust on the supports. There was no right whatever in the party storing the sand to impose this pressure or thrust on the plaintiff's wall. The act itself was wrongful, and either a trespass or a nuisance. This doctrine should not be carried to an extreme, and we do not say that where a man leans his walking stick or a stepladder against his SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. neighbor's wall, but on his own land, this would give a cause of action. But wherever the placing of articles or material against the neighboring wall creates pressure sufficient in any way to weaken or injure it, then the property rights of the owner of the wall are violated. (Davis v. Evans, 37 N. Y. St. Repr. 714.) The action is brought not for a trespass or a nuisance, but for negligence. We do not see, however, that the form of the action has any very material bearing on the case, for the deposit of sand against the plaintiff's wall so as to injure or destroy it might be charged as negligence as well as a trespass, and the jury have found it to be such by their verdict. On the trial the defendant insisted that he was not liable because he had no connection with the work after the first three days. He testifies that at that time he sold the sand then on the lot to one Fogerty, and also gave Fogerty permission to use the lot for the deposit of sand. We do not believe that this fact would necessarily relieve the defendant from liability. It was the pressure of the whole pile of sand that destroyed the plaintiff's building. Part of that pressure arose from the sand deposited against the wall by the defendant, as well as that deposited there later. It is true that the defendant's act alone might not have caused the injury, but nevertheless it was essentially a contributing cause to the injury. In such a case, where the resulting injury is single, all parties who have contributed to the wrong are liable for the whole damage. (Slater v. Mersereau, 64 N. Y. 138; Simmons v. Everson, 124 id. 319.) The case, however, was submitted to the jury upon the theory that if, after the first three days, the deposit of the sand was made by Fogerty and not by the defendant, the defendant was not liable, and I suppose it is on this theory that we must dispose of this appeal. The defendant's statement as to the sale of the sand to Fogerty has already been given. Fogerty corroborated the defendant on this subject, and so did other witnesses. But, on the other hand, the plaintiff testified to the conversations and admissions of the defendant, which tended to destroy the credibility of the whole story. When the sand was first placed on the lot, the plaintiff complained to the defendant that his wall was not strong enough to support it and would be injured. To this the defendant replied that the house was strong enough and it would not hurt it. This complaint was |