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admissible would ordinarily justify sustaining the decision of the court rejecting the whole (Hosley v. Black, 28 N. Y. 438, 445), yet this rule should not be applied, when no objection was made upon this ground, and it clearly appears that the ruling of the court was made solely with reference to that part of the evidence which was admissible. In order to receive the benefit of the exclusion of such evidence, we think it was incumbent upon the party making the objection to state the grounds of his objection, so that the party offering the paper might have an opportunity to offer that part of the paper which was admissible. In the present case no reference at all was made to the pencil memorandum, and the paper was offered, objected to, and excluded without regard to the presence of this memorandum upon the paper.

When the paper was first offered the court excluded it upon the ground that "proof must be shown that this man actually mailed that letter." The proof which the court required was adduced, and the paper was again offered, and was objected to as irrelevant and incompetent. This objection was sustained, and the defendants duly excepted. This paper, and the question as to whether it was mailed to the plaintiff, was relevant to the issue, and it was not rendered incompetent as evidence simply because a pencil memorandum had been made upon its margin. This memorandum was not a part of the notice and the notice itself, without the pencil annotation, should have been received in evidence.

The judgment is reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.

ANGLO-AMERICAN AUTHORS' ASS'N v. SLUTSKY.

(Supreme Court, Appellate Term. April 8, 1909.)

1. JUDGMENT (§ 126*)—DEFAULT-INQUEST-RIGHT TO SUE.

A default judgment for plaintiff could not be sustained, where no assignment to plaintiff of the contract sued on was shown at the inquest, nor evidence offered indicating in what manner he claimed the right to sue on the contract, to which he was not a party.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 228-230; Dec. Dig. § 126.*]

2. Judgment (§ 126*)—DefAULT-IN QUEST.

Where the minutes taken on an inquest failed to show a cause of action against a defendant, his default should be opened.

[Ed. Note. For other cases, see Judgment, Dec. Dig. § 126.*]

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by the Anglo-American Authors' Association against M. F. Slutsky. From an order of the Municipal Court, denying defendant's motion to open his default, he appeals. Reversed, and application granted.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Louis A. Brown, for appellant.

GILDERSLEEVE, P. J. The defendant appeals from an order denying his motion to open his default. The plaintiff's cause of action is based upon a contract made between the firm of A. R. Keller & Co. and the defendant for the delivery to defendant of a set of books. The minutes taken upon the inquest are attached to the return.

Without regard to the excuses given by the defendant for his failure to appear upon the return day of the summons, there is sufficient ground for a reversal of the order herein, for the reason that no cause of action is shown to exist in this plaintiff. No assignment of the contract sued upon is shown, and how or in what manner this plaintiff claims to have a right to maintain an action upon such contract does not appear. Where the minutes taken upon an inquest fail to show a cause of action against a defendant, a default should be opened. Merritt & Chapman Co. v. Koronsky (Sup.) 113 N. Y. Supp. 744.

Order reversed, with costs, and default opened in the court below upon payment of $10 costs. All concur.

In re LECKIE et al.

(Supreme Court, Appellate Division, First Department. April 8, 1909.) MORTGAGES (§ 314*)-DISCHARGE-LOST MORTGAGES.

Real Property Law (Laws 1903, p. 1142, c. 490) § 270a, provides that in certain counties no mortgage shall be discharged of record unless, in addition to the satisfaction piece, there is presented to the recording officer the original mortgage or a certified copy of an order dispensing with its production. Mortgagees applied for an order dispensing with the production of the mortgage, because of its loss after being recorded, and that the owner, having contracted to convey free of incumbrances, desired to pay the debt. Held, that the application was improperly denied on the ground that the mortgage had not been paid; there being no suspicious circumstances attending the application, and every one connected with the property appearing to understand that applicants owned the mortgage.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 314.*]

Appeal from Special Term, New York County.

Application by Peter Leckie and another, adversely to the register of the county of New York, for an order dispensing with the production of a mortgage on satisfaction thereof. Order denying the application, and applicants appeal. Reversed, and application granted.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

Francis J. Kuerzi, for appellants.

Theodore Connoly, for respondent.

HOUGHTON, J. The appellant Leckie held a mortgage upon real property in the city of New York, which was lost after it was placed

on record. Section 270a of the Real Property Law (Laws 1903, p. 1142, c. 490) provides that, in counties wholly embraced in a city of the first class, no mortgage shall be discharged of record unless, in addition to the satisfaction piece, there shall be presented to the recording officer for cancellation the original mortgage, or a certified copy of an order dispensing with the production of such mortgage and directing the discharge thereof without such production. This section contains other provisions with respect to the discharge of a mortgage where the mortgagee refuses to give a satisfaction, as well as for the cancellation of a mortgage which has been fully paid, but not satisfied of record, and, in addition, prescribes the mode of procedure for the obtaining of the order dispensing with the production of the mortgage to the recording officer when the satisfaction piece is presented. The appellant pursued the prescribed practice and set forth his inability to produce the mortgage because of its loss, and that the owner of the property was under contract to convey it free and clear of incumbrances and desired to pay the same, and asked that an order be made permitting its discharge upon production of the satisfaction piece without the production of the mortgage. The learned court at Special Term denied his application, on the ground that it appeared the mortgage had not been paid.

We think this is an erroneous view of the statute. The provision requiring the production of a mortgage on its being satisfied, and the retaining of it on file for the term of ten years therefrom, in a community like the county of New York, where such a large number of mortgages exist, is a wise one for preventing subsequent fraudulent negotiations of mortgages which have been paid. While the language of the section is not as clear as it might be, it is perfectly plain that it provides a means whereby a mortgagee may properly satisfy of record a mortgage which he is unable to produce because of its loss or destruction. In case of loss or destruction, the mortgagee could give a satisfaction piece; but it would be ineffectual to discharge the mortgage of record unless he could also deliver with it the mortgage itself. Anticipating that such a situation might arise, the Legislature prescribed that he might apply to the court, setting forth the loss and the reasons why he was unable to produce the mortgage, and if those reasons were satisfactory the court was given power to order the mortgage canceled upon production of the satisfaction piece alone, without the delivery of the mortgage itself to the recording officer. Without this provision a mortgagee whose mortgage had been lost or destroyed might not be able to receive payment, for the owner would be justified in refusing to pay over his money on the satisfaction piece alone, unless it was accompanied by either the mortgage or an order dispensing with its production. There do not seem to be any suspicious circumstances connected with the appellants' application, and so far as appears everybody connected with the property understands that appellants are owners of the mortgage, and that it is proper for the owners of the property to pay the amount to them upon their giving a discharge.

116 N.Y.S.-3

The order appealed from should be reversed, and the application granted, directing the recording officer to discharge the mortgage upon production of a certificate of satisfaction, and dispensing with the production and delivery of the mortgage itself. A public officer, acting within what he deems to have been his duty, is the nominal respondent, and under the circumstances no costs of this appeal should be granted. All concur.

MacFARLANE et al. v. BROWER et al.

(Supreme Court, Special Term, New York County. April 16, 1909.) COSTS (§ 164*)-ADDITIONAL ALLOWANCES-NATURE OF SUBJECT-MATTER-PAR

TITION.

An allowance cannot be made to parties in a partition action in the aggregate of more than 5 per cent. of the whole value of the property sought to be partitioned. No allowance in addition to the taxable costs can be made to the guardian ad litem of infant defendants having no present interest in the proceeds of the sale, and no additional allowance can be granted to a mortgagee.

For other cases, see Costs, Cent. Dig. §§ 628, 645; Dec. Dig. §

[Ed. Note.

164.*]

Action by Augusta L. MacFarlane and others against John V. Brower and others. Motion to confirm referee's report and for final judgment. Motion granted.

William H. Good, for plaintiffs.

Matthew C. Fleming, for defendants Brower and others.

Hill, Lockwood, Redfield & Lydon (Robert L. Redfield, of counsel), for defendant Baltazzi.

George N. Whittlesey, guardian ad litem for infant defendants Manning and others.

Deyo & Bauerdorf (Howard C. Taylor, of counsel), for defendant mortgagee.

George S. Billings, for defendants Lovett and others.

J. J. Karbry O'Kennedy, guardian ad litem for infant defendant. Lovett.

GIEGERICH, J. Motion to confirm referee's report of sale and for final judgment granted. Under the rule laid down in Doremus v. Crosby, 66 Hun, 125, 20 N. Y. Supp. 906, there cannot be allowed to the parties in the aggregate more than 5 per centum upon the whole value of the property sought to be partitioned. In other words, where the property brings $80,000 or more, $1,000 can be awarded in the aggregate, or $2,000 to each side. The infant defendants, Henry B. Manning, Jr., and John L. Manning, have no present interest in the proceeds of the sale, and therefore an allowance in addition to the taxable costs cannot be made to their guardian ad litem. Matter of Holden, 126 N. Y. 589, 596, 27 N. E. 1063; Doremus v. Crosby, supra; Matter of Robinson, No. 2, 40 App. Div. 30, 57 N. Y. Supp. 523; Walter v. Walter, 60 Misc. Rep. 570, 113 N. Y. Supp. 897.

The latter is therefore entitled to taxable costs,, and no more, out of the estate; and, as his wards have no present interest, there is nothing out of which an allowance can be made to him. An additional allowance cannot be granted to the mortgagee. Doremus v. Crosby, supra. An additional allowance, estimated upon the amount realized, above mortgages, upon the sale of the various parcels of land in suit, in conformity with the rule laid down in Doremus v. Crosby, supra, is made to each of the following parties litigant, viz.: The plaintiffs, $1,300; the 21 defendants who are represented by Mr. Matthew C. Fleming, $925; the defendant Baltazzi, $275; the defendants Arthur W., John E., and Clara Lovett, $50; the guardian ad litem for the defendant Shaw Lovett, $50, in addition to taxable costs.

The final judgment will be settled on notice. The defendant Baltazzi ought to submit and serve a form of final judgment containing a provision of the character referred to in his counsel's brief.

MCDONNELL v. MUTUAL LIFE INS. CO. OF NEW YORK. (Supreme Court, Appellate Division, First Department. April 8, 1909.)

1. INSURANCE (§ 156*)-CONTRACTS-CONSTRUCTION.

The relation of a policy holder in a life policy to the insurance company issuing it is purely contractual, and a contract for life insurance involves the risk which terminates on the death of insured, and the obligation to pay in accordance with the policy then becomes a liquidated debt.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 316; Dec. Dig. § 156.*]

2. INSURANCE (§ 521*) - LIFE INSURANCE · - CONTRACTS FORCE."

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A life policy on the 15-year distribution plan provided for payment of quarterly premiums in advance, and stipulated that the policy should be credited with its distributive share of the surplus apportioned at the expiration of 15 years, and that only 15-year distribution policies "in force" at the end of such term should share in such distribution. Insured paid all premiums during the 15-year period, and died 11 days before the expiration of the period. Held, that the policy was not entitled to any distributive share of the surplus, for the words "in force" required the full payment of the premiums and that insured should be alive at the termination of the period.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1305; Dec. Dig. § 521.*

For other definitions, see Words and Phrases, vol. 4, p. 3473.

Submission of controversy on an agreed statement of facts, pursuant to Code Civ. Proc., §§ 1279-1281, by Ellen McDonnell and the Mutual Life Insurance Company of New York. Judgment for defendant.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

Lewis F. Wilson, for plaintiff.
James McKean, for defendant.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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