Beach agt. The Bay State Steamboat Company.

other. (Dougl. 702.) But in the redress which these statutes afford to the bereaved families of those who have been de prived of life, by the wrongful act, neglect or default of others, they are entirely remedial; and they are calculated to be most beneficent in their operation, not only in their compensatory effect in warding off, at least for a season, the destitution of many a family, bereft of its provider, but in preventing the frequent occurrence of the melancholy disasters, which are, too often, the result of the most culpable carelessness and disregard of human life.

I can see no reason to infer, that the legislature intended to confine the operation of these acts, in their remedial features, to injuries committed within the territorial limits of this state, or to exempt persons, natural or artificial, residing in other states, provided the necessary steps are taken to obtain jurisdiction. over such persons. The language is, doubtless, very general, and does not expressly specify injuries committed without the state, and does not specify anything relative to the residence or citizenship of the perpetrators of the injury, or if they are artificial persons, the place or country where they might have been organized. But on the other hand, it does not except such injuries or such persons; and there is no reason whatever to suppose, when we consider the nature of the calamity to be redressed, and the purpose for which redress is prescribed, that the legislature intended any restriction beyond what the generality of the language itself imports.

With regard to the penal section of the act of 1849, we cannot, by that, construe the remedial section. Each stands by itself on the well known rules of construction; a strict construction for the one, a liberal construction for the other; and in the absence of anything to the contrary, we are to sup, pose that the legislature intended that the acts in question. should be interpreted according to those rules, which are part and parcel of the law of the land, recognized by the legisla ture as well as by the judiciary; and all laws, it must be presumed, are framed in reference to them.

And after all, do not these statutes merely provide, in their

Pratt and others agt. Conkey.

remedial character, an extension of the remedy afforded by the common law? To be sure, the death of the deceased, and not the injury which caused the death, is the immediate ground of the action. But the death is the sad result and serious aggravation of the injury, by which the family are deprived of the means of support, as the deceased person himself, if he survived the injury, would, according to the extent of it, be deprived of the ability to contribute to their support. If Mr. Beach were maimed and mutilated by this explosion, and survived the accident, he certainly would, by common law, have a right of action for damages against the defendants, whether it occurred within this state or not. The action would be, undeniably, transitory. Do these acts, in their remedial features, go any further than to extend and transmit this common law right, giving compensation for the injury that produced the death, to the family and representatives of the deceased?

For these reasons, I hold that this action is well brought, even on the assumption, that the explosion occurred without the territorial limits of the state of New-York.

Demurrer overruled with costs, with liberty to answer within ten days on payment of costs.

SUPREME COURT.

The People ex rel. DINSMORE & WOOD agt. THE CROTON AQUEDUCT BOARD.

The Code, admitting all parties to be heard in one suit, does not apply to the writ of mandamus.

Where the Croton Aqueduct Board awarded a contract for building a new reservoir in the city of New-York, to Fairchild & Co., upon which, Dinsmore & Wood, whose application for the same was rejected, sued out a writ of mandamus; and on appeal to the general term by Dinsmore & Wood, they procured an order to stay proceedings until a final hearing should be had;

The People ex rel. Dinsmore & Wood agt. The Croton Aqueduct Board.

Held, on motion by Fairchild & Co., to vacate this stay of proceedings, that they were not in a situation to move for such an order. They were no parties to the mandamus, and were in no wise affected by the judgment and order upon it. The order did not bind them, and as against them, did not protect the Croton Board.

New-York Special Term.

ROOSEVELT, Justice. The Croton Board having advertised for contracts for building a new reservoir, various proposals were sent in, and among them one from Dinsmore & Wood, and one from Fairchild & Co. After full consideration, the board concluded to award the contract to the latter firm, upon which the former sued out a writ of mandamus. The case was heard before Judge PEABODY, who confirmed the decision of the Aqueduct Board. From this judgment Dinsmore & Wood appealed to the general term and obtained a stay of proceedings till the final hearing should be had. It is now alleged that they have taken no steps to bring on that hearing, and that the stay of proceedings ought therefore to be revoked.

A sufficient answer to the motion of Fairchild & Co., would seem to be that they were no parties to the mandamus, and were in no wise affected by the judgment and order upon it. The order does not bind them, and, as against them, does not protect the Croton Board. They can demand the contract, and if refused, and if they are right, they can enforce the demand notwithstanding an order to stay proceedings made in a cause to which they were not parties. The same remedy by mandamus against public officers, is open to them as was taken by their competitors, Messrs. Dinsmore & Co.; and the same reasons, if sound, which induced the judgment against Dinsmore & Co., would equally, it is presumed, insure a judgment in favor of Fairchild & Co. Two suits, it is true, would be the consequence, an inconvenience, no doubt, to the parties, but one for which the law as yet has provided no remedy. The Code, admitting all parties to be heard in one suit, does not apply to the writ of mandamus. The 471st section expressly excludes

In the matter of the petition of Mary Van Wagenen.

that class of cases. It may be, that the Croton Board could have filed a bill of interpleader. Of the expediency of doing so, they were the judges. Or all parties may unite in a statement of facts-which could readily be agreed upon-to be submitted to the general term, accompanied by such arguments as the respective counsel might see fit to urge.

It is enough, however, for the determination of the present application, that the rules of law as at present existing in cases of mandamus, and "until, (as the Code expresses it,) the leg. islature shall otherwise provide," do not allow an outside party to intervene on such an appeal as that taken by Dinsmore & Co. Whether the court should hear the counsel of Fairchild & Co., as amicus curice, when the argument is brought on, will be for the general term to decide. It is competent to the judges to listen in that character, to the suggestions of any member of the bar in any case. No formal order is necessary, and certainly none would be proper to be made by a single judge at special term to control the discretion of his brethren on the general term bench.

The motion made by Fairchild & Co., to vacate the stay of proceedings in the Dinsmore suit, and to place that suit on the present general term calendar, and to permit Fairchild & Co. to be heard by counsel on the Dinsmore appeal, must, therefore, be denied.

SUPREME COURT.

In the matter of the petition of MARY VAN WAGENEN.

The testator, by his will, authorized his executors to lease to his widow, for a term not exceeding fourteen years, his house in Murray street, (New-York,) at a rent of $800, they, and not the lessee, paying all taxes, assessments, insurance and repairs. The lease, however, was to be "on the condition that she should occupy the premises for her residence."

In the matter of the petition of Mary Van Wagenen.

After the death of the testator, it appeared that great changes were taking place in that part of the city, and the immediate neighborhood, which had rendered the premises unsuitable for a residence, (where the widow and family then resided,) but of far more value for business.

The question was, whether under the will there was any authority to change the residence during the lease? Under a clause of the will which authorized the executors, not only to make repairs on the real estate, (not excepting the Murray street residence,) but alterations and "improvements to the buildings” as they may consider most for the benefit of those interested therein, extending even to the "removal of existing buildings, and the erection of other buildings, of such form and construction as they (the executors) may think most expedient." The court held, that with the consent of the widow, the executors were clearly empowered to tear down the dwelling in Murray street, and erect a store or other structure thereon, corresponding with the altered condition of things.

New-York, Special Term.

ROOSEVELT, Justice. The late Hubert Van Wagenen, by his will, which was made in 1847, in addition to an allowance for the support of the children, gave his widow an income for her life, of two thousand dollars per annum. He also autho rized his executors to lease to her, for a term not exceeding fourteen years, his house in Murray street, at a rent of $800; they, and not the lessee, paying all taxes, assessments, insurance and repairs. The lease, however, was to be "on the condition that she should occupy the premises for her resi dence."

The testator died in 1850, leaving a widow and five infant children; all of whom still continue to reside in the house before mentioned. But great changes are now taking place in that quarter of the city; and among them is the demolition of the house adjoining the widow's dwelling, and an excavation below its foundation. What, then, is to be done in this unforeseen change of circumstances? The lot, while unsalable on the one hand, for a residence, has, on the other, become far more valuable for business. Must the family, it is asked, on pain of forfeiture, still continue to reside there? Is there no escape from such a gratuitous loss and inconvenience, injurious to all and beneficial to none?