App. Div.] Third Department, May, 1908. step in a somewhat circuitous and indirect route of finally reaching the estate. To this there are two answers: First. The complaint does not purport to have any such object, but the action is the ordinary common-law action to recover a money judgment against the defendants which judgment will be collectible de bonis propriis and not de bonis testatoris. Second. Such judgment, although it may be fair and just as between these parties, will not be a criterion as to the defendants' right to reimbursement from the estate or measure the extent of that right. In O'Brien v. Jackson (supra) it was said: "While as between the executor and the person with whom he contracts, the latter may rely on the contract, the beneficiaries are not concluded by the executor's act, but the propriety of the charge and the liability of the estate therefor must be determined in the accounting of the executor." And in Ferrin v. Myrick (41 N. Y. 315) it was said of a contract between a seller and the administrator: "Whether the particular article is suitable and reasonable, or otherwise, is a question which the seller is not called upon to decide. That question is not left to his decision. It belongs to the administrator. He decides it at his peril, to be allowed or disallowed, in the final settlement of his accounts with the surrogate. *** It is, therefore, most reasonable and proper that the administrator should be liable himself to the seller, although the estate may not ultimately be liable to him, or to any one else, for the article furnished." to What has been said applies to the defenses to the second cause of action and in my opinion establishes their sufficiency. The fourth and sixth defenses being defenses to the first cause of action are incomplete and barren of necessary allegations. They do not refer any other portions of the answer and their sufficiency must be determined without reference thereto. So considered it does not appear therefrom nor from that portion of the complaint which they attack that the defendants were the executors of the Finch will or that the services in question were even rendered in the matter of the Finch estate. Exhibit A has no application to this first cause of action. There are no allegations either in said cause of action or in these defenses which show the relevancy or pertinency of said exhibit. As to these two defenses, therefore, the demurrer was properly sustained. Third Department, May, 1908. [Vol. 126. The interlocutory judgment should, therefore, be affirmed so far as it sustains the demurrer to the fourth and sixth defenses of the answer and in other respects reversed and the demurrer should be overruled as to the third, fifth and seventh defenses of the answer, without costs in this court or in the court below and with leave to both parties to amend their pleadings. All concurred; KELLOGG, J., in memorandum. KELLOGG, J. (concurring): Before Exhibit A was executed the defendants were primarily liable for plaintiff's services rendered and to be rendered. The will not being fully established, and presumably no funds of the estate in the hands of the executors, they had the right to agree with the plaintiff that he should not hold them responsible for the value of his services, but that the estate should be chargeable therewith. (O'Brien v. Jackson, 167 N. Y. 31; Douglas v. Yost, 64 Hun, 155, 162.) Exhibit A absolved the defendants from any further personal liability and charged the funds of the estate with the payment of any balance due or to become due the plaintiff. The executors cannot agree that the estate shall pay and thus free themselves, and then as representatives of the estate wrongfully refuse payment on the part of the estate and thus absolve it. If the defendants have wrongfully refused to pay the amount justly due the plaintiff, and his sole remedy is an action against the defendants, he may maintain an action against them for the purpose of reaching the estate; and after action brought, if the defendants fear that that judgment may not fully protect them or the estate, they may cause to be brought in the persons beneficially interested in the estate. When the executors agree that services rendered the estate shall be solely chargeable to the estate, they impliedly consent that such liability may be enforced, and they cannot object if the plaintiff seeks the only remedy which is permitted to him. But this is not such a case, for the plaintiff has an adequate remedy to enforce his claim against the estate. Wherever a wrong exists a court of equity has ample jurisdiction to redress the wrong; and while these executors had no power to finally fix the amount which the parties beneficially interested in the estate must ultimately pay for the plaintiff's App. Div.] Third Department, May, 1908. services, that does not permit the estate to receive the services with out compensation. An action in equity may be maintained against the executors and the persons beneficially interested in the estate to liquidate the plaintiff's claim and to enforce it against the property of the estate. This is an action at law against the defendants personally, to which Exhibit A is a complete defense. It is not necessary that the action be brought against the defendants personally, for the reason that the plaintiff has an adequate remedy against the estate and those interested in it to charge upon it the amount his due. Interlocutory judgment affirmed so far as it sustains the demurrer to the fourth and sixth defenses of the answer, and in other respects reversed, and the demurrer overruled as to the third, fifth and seventh defenses of the answer, without costs in this court or in the court below, and with leave to both parties to amend their pleadings. MAME J. CUPP, Respondent, v. THE CITY OF ELMIRA, Appellant. Third Department, May 6, 1908. Municipal corporation - negligence - injury on icy sidewalk - charge. A municipality is not negligent in failing to proceed at once to clear its sidewalks of snow and ice, but may rely for a reasonable time on the assumption that abutting owners will perform that duty. Where in an action to recover against a municipality for injuries received by a fall on an icy sidewalk it appears that for some time prior to the accident there had been a generally freezing condition so that the sidewalks throughout the city were covered with ice and many pedestrians were compelled to walk in the middle of the streets, and it is not shown that there was any peculiar formation at the particular locality distinguishable from the general condition throughout the city, and it was not practical for the city to remove the ice from all its sidewalks, the city is not negligent in failing at once to remove the ice from that particular point. Where a sidewalk for a width of five feet has been kept reasonably free from snow, the municipality is not liable solely by reason of the fact that water dripped on the sidewalk from an adjoining platform during a general thaw and subsequently froze. Third Department, May, 1908. [Vol. 126. When in an action to recover for personal injuries there is no positive proof that the plaintiff fell on ice which formed from the drippings from an adjoining platform, it is error to refuse to charge that if the jury are unable to find whether the plaintiff fell on the ice formed from the drippings from the platform, or on ice which formed from snow left on the walk, they must find for the defendant. APPEAL by the defendant, The City of Elmira, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 8th day of May, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk's office on the 4th day of June, 1907, denying the defendant's motion for a new trial made upon the minutes. John F. Murtaugh, Corporation Counsel, for the appellant. H. H. Rockwell, for the respondent. COCHRANE, J.: Liability of the defendant is asserted herein because of an icy sidewalk on which the plaintiff fell and was injured. The accident occurred on the afternoon of February 15, 1905, on a sidewalk in front of a vacant building on one of defendant's streets. Between the building and the sidewalk was a platform about eight inches high on the property of the owner of the building and used in connection therewith. The walk in front of the building was about twelve feet wide. The snow was shoveled toward the outer side of the walk, leaving a space of four or five feet for passage between the platform and the shoveled snow. This intervening space seems to have been kept reasonably free from snow. At the trial defendant offered to show that the obligation did not rest upon it to shovel more than five feet of this walk. An objection to this offer was sustained on the statement of plaintiff's counsel that he did not raise any point in reference thereto. We must assume, therefore, that there was no negligence on the part of the city because the walk was not kept free of snow for a greater width than four or five feet from the platform. The evidence is conflicting as to the nature and condition of the ice in front of this building, but the inference is permissible that the intervening space of four or five feet for the entire width of App. Div.] Third Department, May, 1908. the building was covered with ice at the time of the accident. There had been snow and ice on this particular sidewalk for two weeks. From official records made at an observation station for the governmental weather bureau and offered in evidence by the plaintiff it appeared that for the entire month of February prior to the accident the temperature was uniformly below the freezing point except for portions of February sixth, February ninth and February twelfth; that it snowed on the former of said days, and that on the latter day there was a slight snow, changing to rain at nine o'clock in the evening, and that at seven o'clock of the following morning the temperature was twenty-two degrees and remained below the freezing point continuously until after the accident. It also appeared that during all of the month there had been icy places on the sidewalks of the city. The condition disclosed from the first to the fifteenth of the month, when the accident happened, seems to have been general throughout the city and does not differ in any respect from that which frequently exists in cities and villages in this climate. It is undisputed that during all this time the sidewalks were partly covered with ice. In fact, plaintiff herself testified that it was icy in a great many places and that on some of the walks she could pick out places where she did not have to walk on ice. It also appears that for several days prior to the accident pedestrians because of the slippery sidewalks were walking in the middle of the streets. It does not appear what the weather conditions were prior to February first, and hence in determining the question of defendant's negligence we are limited to the facts as they existed between that date and the time of the accident. Cases like this have frequently been before the courts. It has often been held that a municipality is not negligent because it does not proceed at once to clear its sidewalks of snow and ice, but it may rely for a reasonable time on the assumption that the abutting property owners will perform that duty, and it has also been held that it may wait for the temperature to moderate. (Foley v. City of New York, 95 App. Div. 374; Taylor v. City of Yonkers, 105 N. Y. 202; Staley v. Mayor, 37 App. Div. 598; Moran v. City of New York, 98 id. 301; O'Keeffe v. Mayor, 29 id. 524; Gramm |