this improvement by the benefit parcels lying between Williamsbridge road and Walker avenue, which have no frontage on the new avenue, and corresponding parcels directly across Williamsbridge road and Walker avenue, respectively, therefrom. It is, I think, evident that these apparently unequal and unjust assessments are the result of the erroneous application of the block to block rule, or the application of some erroneous rule. I am of opinion that, in the circumstances, the court at Special Term properly refused to confirm the assessments for benefit.

[3] The court, however, cannnot control the judgment of the commissioner with respect to the amount or proportion of benefit. It can only require him to proceed according to the statutory requirement and to assess the total amount required to be assessed by local assessments upon the several parcels within the area of assessments in proportion to the benefits derived by them respectively, and to assess the parcels owned by the respondents in proportion to the benefits derived by their respective parcels considered with all other parcels within the area of assessment. The order requires that the assessment shall be made in accordance with the opinion of the court. If left without modification, that might coerce the judgment of the commissioner with respect to determining and apportioning the benefits. It follows that the order should be modified by directing that the assessments be made in proportion to the benefits derived by the respective parcels, and, as so modified, affirmed, with costs to each set of respondents appearing separately. Settle order on notice.

concur.

(97 Misc. Rep. 618)

All

LUCAS v. NEW AMSTERDAM CASUALTY CO. (Supreme Court, Appellate Term, First Department. December 22, 1916.) 1. INSURANCE ~539(3), 559(2)-LIABILITY INSURANCE-NOTICE OF ACCIDENT. A provision in a policy of "liability insurance" for a department store, requiring assured to give immediate written notice to insurer upon occurrence of an accident, does not require notice where, without fault on his part, assured is unaware of the accident, or where the party injured by the accident, or his agent, makes disclaimer of any importance attaching to the incident, since such a provision must receive a reasonable construction.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1329, 1391, 1392; Dec. Dig. 539(3), 559(2).]

2. INSURANCE

668(14)—ACTION-QUESTION FOR JURY.

In an action on such a policy, conflicting evidence as to disclaimer to assured of seriousness of the accident by the husband of the injured woman, as bearing on excuse for failure to notify the insurer of the accident, held to make such issue one for the jury.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1747, 1749, 1750, 1766, 1768; Dec. Dig. 668(14).]

Appeal from City Court of New York, Trial Term.

Action by James Lucas against the New Amsterdam Casualty Company. From a judgment of the City Court for plaintiff, upon directed verdict, defendant appeals. Reversed, and new trial granted.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Argued December term, 1916, before GUY, BIJUR, and SHEARN, JJ.

Frederick Mellor, of New York City (Charles T. Green, of New York City, of counsel), for appellant.

Thompson, Freedman & Cooke, of New York City (Henry Thompson and Carleton S. Cooke, both of New York City, of counsel), for respondent.

BIJUR, J. Defendant apparently rested on plaintiff's case, and moved to dismiss the complaint, which was denied. Thereupon plaintiff moved for the direction of a verdict, and the defendant asked to go to the jury. Plaintiff's motion was granted.

Plaintiff sues to recover the amount of two judgments paid by him under the following circumstances: Plaintiff is the proprietor of a department store. He procured "liability insurance" from defendant. On May 3, 1913, one Mary Dietz, while with her husband, John Dietz, in plaintiff's store, slipped and fell on some stairs. On July 17, 1913, she and her husband brought actions against the plaintiff herein for damages resulting from this accident, and judgments were entered against the plaintiff herein, which he paid. It is for the amount of these judgments that he seeks reimbursement from defendant.

A single point is involved in this appeal. The policy provides that: "Upon the occurrence of an accident the assured shall give immediate written notice thereof * * to the company. If a claim is made on account

of such accident, the assured shall give like notice thereof."

It is conceded that plaintiff did not give any notice to defendant until he was served with the complaints of Mr. and Mrs. Dietz on July 18, 1913. Plaintiff testified that on May 3d John Dietz came to him and said:

"My wife and I were upstairs, and were coming down. My wife's heel caught on one of the steps of the stairs."

There was some further conversation, and Dietz said:

"I am not finding fault, but I want to warn you. Somebody might slip on them stairs, and give you trouble. I am finding no fault."

Plaintiff added that Mr. and Mrs. Dietz then walked around the store and looked at some goods, after which he saw no more of them. At the trial, he was confronted with an affidavit, which he had made for the use of defendant in the office of defendant's attorney after the Dietz suits had been brought, in which he recited that Dietz said that his wife had just fallen on the stairway, and there is nothing in the affidavit directly or indirectly indicating that Dietz had said to him, the plaintiff, that he was "finding no fault." Plaintiff claimed on the trial that he had not read the affidavit after it was dictated, and that he had never said that he was aware that Mrs. Dietz had fallen.

[1, 2] Plaintiff-respondent's present contention is, in substance, that:

"The occurrence of May 3, 1913, taken in connection with the disclaimer of hurt of John Dietz and the tacit assent of Mary Dietz, was not an accident within the meaning of the policy."

I think that this contention has much merit. The clause in the policy which I have quoted must receive a reasonable construction. Woolverton v. Fidelity Co., 190 N. Y. 41, 82 N. E. 745, 16 L. R. A. (N. S.) 400. And if it were shown without contradiction that plaintiff was, without fault on his own part, unaware that Mrs. Dietz had fallen, or if the statement of Mr. Dietz that he was finding no fault (made in Mrs. Dietz's presence) can be taken as a disclaimer of any importance attached to the incident, the entire occurrence might be treated as a merely casual and negligible one, upon which no claim could possibly be founded, and notice of which, therefore, it could not reasonably be expected should be given to the insurer. Plaintiff's testimony, however, is that of the chief party in interest, and his evidence as to Mr. Dietz's statement that he found no fault is not only unsupported by other testimony, but is rather remarkable in itself. Moreover, the absence of that statement from his affidavit, and the statement in the affidavit that Mrs. Dietz had fallen (knowledge of which he disclaimed in his testimony at the trial), are all circumstances which defendant was entitled to have weighed by a jury in order to determine what had actually occurred at the time of the alleged incident. Hull v. Littauer, 162 Ñ. Y. 569, 57 N. E. 102; Second Nat. Bank v. Weston, 172 N. Y. 258, 64 N. E. 949.

Defendant's request to go to the jury was directly addressed to these points. Its counsel said:

"I move to submit to the jury the question of fact raised by plaintiff's testimony with reference to the conversation between him and the injured party at the time that this so-called accident happened, and on the other questions of fact."

The refusal to so submit them was error, for which the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

RICHARDS et al. v. DAUCH et al.

(Supreme Court, Special Term, Kings County. December 16, 1916.) MUNICIPAL CORPORATIONS 663(3)-STREETS-USE IN MOVING BUILDINGDESTRUCTION OF SHADE TREES.

The owners of a double building, 28 feet or more in width, had no natural right, as against the objection of an abutting owner, to move the building down the highway, destroying all the shade trees in its path by crushing off or lopping off overhanging branches of many years' growth, and leaving the street permanently marred, since the natural right to use the highway to move buildings must be exercised with due regard to the rights of others.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1440; Dec. Dig. 663(3).]

Action by Harriet Elizabeth Richards and others, infants, by Jesse Richards, their guardian ad litem, against Thomas H. Dauch and another. On plaintiffs' motion for injunction. Motion granted.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 162 N.Y.S.-13

Maxson & Jones, of Hempstead (Henry L. Maxson, of Hempstead, of counsel), for the motion.

Clock & Seaman, of Freeport (Harry G. Clock, of Freeport, of counsel), opposed.

KELLY, J. I think the use which the defendants are making of the street is entirely unreasonable and improper. Granted that the right to use the highways for the purpose of moving buildings is a natural right, and not dependent upon statute, as recently decided by Judge Cropsey in N. Y. Telephone Co. v. Dittman, 96 Misc. Rep. 60, 159 N. Y. Supp. 625 (Special Term, Kings County, June 27, 1916), still natural rights must be exercised with due regard to the rights of others. In that case the only question involved was the temporary removal of telephone wires to allow the passage of a building along the highway, and there appeared to be a statutory obligation on the telephone company to remove the wires. They could easily be replaced. There was no irreparable injury.

In the case at bar the defendants are endeavoring to move what is really a double building, 28 feet or more in width, down the highway, destroying all of the shade trees in its path, by crushing off or lopping off overhanging branches of many years' growth and leaving the street behind them permanently marred. The plaintiff, as an abutting owner, has a right to object to this permanent and irreparable injury to the appearance and ornamentation of the highway in front of his premises. Donahue v. Keystone Gas Co., 181 N. Y. 313, 73 N. E. 1108, 70 L. R. A. 761, 106 Am. St. Rep. 549. As suggested, it is a most unusual and disastrous course of conduct for the private benefit of the defendants at the expense of their neighbors. The village clerk, who granted the permit pro forma without any express resolution of the village board, makes affidavit that he had no information or suggestion that the permit would be used in the manner in which the defendants are attempting to use it.

Motion granted; plaintiff to file an undertaking in the sum of $500. Settle order on notice.

(97 Misc. Rep. 37)

GRAY v. DELPHO et al.

(Supreme Court, Equity Term, Oneida County. July, 1916.)

1. MORTGAGES 12-REQUISITES INTEREST OF MORTGAGOR.

A mortgage, first in point of time, executed when the mortgagor held an interest as purchaser in possession, and had paid part of the price, was a valid mortgage security.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 13, 14; Dec. Dig. 12.]

A second mortgage, in the hands of an attorney who negotiated the execution of a first mortgage, was subordinate to the lien of the first mortgage.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 307; Dec. Dig. 151(2).]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. MORTGAGES 261-ASSIGNMENT-RIGHTS OF ASSIGNEE.

The assignee of a mortgage takes only the title of his assignor, and a mortgage in the hands of an assignee is subject to the same equities and defenses that could have been interposed against the assignor.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 693; Dec. Dig. 261.]

4. MORTGAGES 244(2)-LIEN-PRIORITY.

The assignee of a mortgage for value without notice, by recording his assignment, obtains priority over an earlier mortgage, unless the earlier mortgage had been previously duly recorded.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 634-637, 639, 640; Dec. Dig.

5. DEEDS

244(2).]

86 RECORD-EFFECT.

The purpose of recording conveyances is to furnish notice thereof to subsequent purchasers and incumbrancers, and the proceeding being entirely statutory, unless the instrument is of such a character as to convey an interest in real estate, and is executed and recorded as provided by statute, the record is of no avail.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 226; Dec. Dig. ~~86.]

A mortgage, containing no covenants of title or for further assurance, given by a purchaser in possession of realty under an executory contract of sale, has priority over a mortgage given subsequently, and before the mortgagor received his title, to the extent of the payments made by the mortgagor under his contract of sale, and no further.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 371-379; Dec. Dig. 163(2).]

Action by Almira Gray against Henry F. Delpho, Jr., and others, for foreclosure of a mortgage on real estate. Judgment of foreclosure granted.

Clarence Stetson, of Utica, for plaintiff.

Geo. C. Morehouse, of Utica, for defendant Cloyes.

James Coupe, of Utica, for defendants Nellis, Amos & Swift.

EMERSON, J. On April 21, 1911, one James B. Turnbull was the owner of lot 5 on James street in the city of Utica, and on that day he entered into a contract in writing to sell said lot to defendant Delpho for the sum of $1,000, of which sum $100 was to be paid down, and the balance on or before November 1, 1911. Said sum of $100 was paid on the execution of the contract, and Delpho went into possession of the property. Delpho was a builder, and for some time had been engaged in business with one Wadsworth L. Goodier, a lawyer and real estate man in that city, under an arrangement whereby Delpho was to purchase land and build thereon, the money therefor to be furnished by Goodier, and when the property was sold the profits to be equally divided between them, and the lot in question was purchased by Delpho for that purpose and in accordance with that agreement.

Prior to the execution of said contract, Delpho had built a house on an adjoining lot, and used the lot in question for a toolhouse and for the deposit of some building material, and the same was on the lot

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes