You

In December, 1922, the petitioner wrote the defendants: "I can't find the little pictures you gave me of your son. mean all the world to that little precious man of yours, and he loves you so." Not a word from petitioner during that period that the child was regarded other than as the child of the defendants. Neighbors, substantial and respected citizens of that community, speak in the highest terms of the defendants, and of the care and painstaking devotion with which they have provided for this child's welfare. No natural parent could be more fond or devoted to its offspring. For two long sessions of court the child and the defendants were under close observation. Confidence, affection, great love, was most manifest on the part of this 7 year old boy for both of the defendants, and it was apparent that their care and oversight of the boy for the past 5 years had been quite ideal and most beneficial. The future of the boy, should his custody be awarded to the petitioner, who has proved a want of maternal instincts, cannot be viewed with much pleasure and satisfaction. Should he remain with the defendants, his future promises to be clean, healthful, industrious, honest, in a comfortable, happy home, where love and affection abound. If this child must be taken from the custody of these defendants, who have so generously, humanely, and carefully administered to its wants, when its own mother would have none of it, it will have to be done by some other hand than mine. I cannot do it. Writ and petition dismissed, and custody awarded to the defendants.

In re ROSENBERG'S WILL.

(Supreme Court, Appellate Division, Second Department. December 14, 1923.) 1. Partnership 49-Income tax returns and petition for arbitration held admissible on issue of partnership.

In a proceeding for settlement of accounts of executors and trustees, involving the question whether one of the executors and trustees was a partner of the decedent, his income tax returns, individually and as executor, held admissible and wrongfully excluded, and a petition by him for arbitration admissible as a declaration, unless involving a confidential or privileged communication.

2. Evidence 46-Judicial notice taken of regulations promulgated by federal government by executive order.

Regulations promulgated by the federal government by executive order may be taken judicial notice of by the Appellate Division.

In the matter of the judicial settlement of the account of proceedings of Morton Rosenberg and others as executor and trustee under the will of Charles Rosenberg, deceased. Additional testimony ordered taken.

Argued before KELLY, P. J., and RICH, JAYCOX, MANNING, and KELBY, JJ.

PER CURIAM. Pursuant to section 309 of the Surrogate's Court Act, a referee will be appointed to take further testimony in this pro

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(202 N.Y.S.)

ceeding. The testimony presents a close issue of fact as to whether or not Morton Rosenberg was a partner with his deceased father, Charles Rosenberg. Additional testimony is desired by the court to aid it in determining this issue of fact.

[1] Evidence concerning income tax returns made by Morton Rosenberg, individually and as executor of the estate, was improperly excluded. In 1917 there was an affirmative duty on a partnership to file a statement for the purpose of fixing the excess profits tax. For the year 1917 partnership income as such was taxable for excess profits: For every year since that time, although partnerships are not taxable as such, partners are required to make an annual return as informative of the profits of the partners. This apparently is exacted by the partners as a check upon the individual returns filed by them in their individual capacities.

[2] The regulations promulgated by the federal government by executive order may be taken judicial notice of by this court. Provisions for the inspection of returns which are relevant to the issues in this proceeding, are as follows: As to inspection of individual returns, regulation 5 of article 1090; as to inspection of partnership returns, regulation 7 of article 1090; as to inspection of returns of estates and trusts, regulation 8 of article 1090. Evidence of the contents of these returns should be before the court. If the decedent, Charles Rosenberg, prior to his death on July 4, 1917, filed any return for the year 1916, that should also be produced, as well as any returns filed with the state tax authorities.

In addition to the foregoing, a petition apparently verified by Morton Rosenberg, at folios 2217 to 2220 of the record, which is described as a petition "for purposes of arbitration," was properly admissible in evidence as the declaration of a party, and was wrongfully excluded by the trial judge, unless upon inspection it was shown to involve a confidential or privileged communication.

Settle order on notice.

CRAMER v. PERINE et al.

(Supreme Court, Special Term, Erie County. December, 1923.)

1. Costs 257-Amendment held not "amendment of the case on appeal," entitling adverse party to costs.

Where it was discovered on appeal that no judgment had been entered, the attachment of a copy of the judgment, after entry thereof, to the record in the appellate court as an amendment to the return on appeal was not an "amendment of the case on appeal," within Rules of Civil Practice, rule 234, entitling either party to $20 costs, under Civil Practice Act, § 1504.

2. Costs 250-Argument fee properly taxed against appellant, where appeal transferred from preferred to general calendar.

Where an appeal, after it was called in regular order on the preferred calendar, and after appellant's attorney began his argument, was stricken For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

from the preferred calendar and placed on the general calendar, reargument fee was properly taxed against appellant, whose attorney improperly placed the case on the preferred calendar.

Action by Clara Cramer against Melancthon W. Perine and others. Plaintiff's appeal from a judgment of the Appellate Division (197 App. Div. 218, 188 N. Y. Supp. 148) was stricken from the preferred calendar and placed on the general calendar. On defendant's motion to strike out certain costs taxed by plaintiffs. Motion denied in part, and granted in part.

George H. Wade, of Buffalo, for plaintiff.

J. Neil Mahoney, of Buffalo, for defendants.

BROWN, J. The defendant appealed to the Court of Appeals from a judgment of the Appellate Division, filing the record on appeal. The appeal was noticed for argument by the appellant and placed upon the calendar as a preferred cause. Upon being reached on the calendar, both attorneys appeared with printed briefs ready for argument, and the attorney for the defendant appellant began his argument. The court discovered that the cause was not entitled to a preference and ordered it stricken from the preferred calendar and placed on the general calendar. It was then discovered that there had been no judgment entered upon the order of the Appellate Division. The attorney for the plaintiff procured such judgment to be entered and a copy attached to the record in the Court of Appeals, as an amendment to the return on appeal.

[1] The attorney for the plaintiff then made an original motion to dismiss the appeal. The motion was granted and the appeal dismissed by the Court of Appeals, "with costs and $10 costs of motion to the respondent." The defendant moves to strike from plaintiff's taxed costs the items: For making and serving amendments to the case, $20; and for argument, $60. The $20 item is awarded by section 1504 of the Civil Practice Act (as renumbered by Laws 1921, c. 199, and amended by Laws 1921, c. 372). Such item has reference to proceedings in the trial court to settle a case on appeal. A case on appeal is defined in rule 234 of the Rules of Practice. The record on appeal consists of a copy of the judgment roll, to which shall be attached the case or bill of exceptions, if it is to be used in the Appellate Division. The amendment of the defendant to the return on appeal to the Court of Appeals consists of attaching the judgment to the judgment roll. If anything was amended, it was the judgment roll. It was not the case attached to the judgment roll. There was no warrant for the taxing of the $20 item for making and serving amendments to the

case.

[2] The fact that the attorney for the plaintiff respondent attended the Court of Appeals, was ready to argue his case, his adversary actually began the argument, the hearing terminated, not through any fault of the attorney for the plaintiff respondent, but owing to the failure of the attorney for the defendant appellant to properly place the cause on the calendar, and to attach the judgment of the Appellate Division to the return on appeal, would seem to entitle the defend

(202 N.Y.S.)

ant's attorney to the argument fee. In re Wray Drug Co., 93 App. Div. 456, 87 N. Y. Supp. 676; Dooley v. Union R. Co., 57 Misc. Rep. 145, 107 N. Y. Supp. 882.

Defendant's motion to strike out argument fee denied, and granted as to item taxed for serving amendment to case.

(207 App. Div. 470)

MANURSING ISLAND BEACH CORPORATION v. SACKETT et al. (Supreme Court, Appellate Division, Second Department. December 21, 1923.) I. Appeal and error 878(1)-Record held to preclude retrial in appellate court, dismissal or other judgment.

Where, in an action to locate a boundary line, plaintiff expressly stated that the action was not one to quiet title or in ejectment, and after defendants' motion to dismiss for lack of jurisdiction was denied, they went on with their proof and took no appeal from the judgment, which gave neither party all the land claimed, the appellate court, on plaintiff's appeal, could not retry the case, or dismiss the complaint, or render judgment more favorable to defendants.

2. Boundaries 37(1)-Finding locating boundary held sustained by evidence. In an action to locate a boundary, evidence held sufficient to warrant finding giving neither party. all land claimed.

3. Boundaries 3(9)-Quantity considered with other facts when description indefinite.

Even if the statement of the quantity of land in a deed usually has little or no weight in determining the boundary, where the location of a disputed line depended on the interpretation of indefinite descriptions in ancient conveyances, the court was justified in considering all the facts.

Appeal from Special Term, Westchester County.

Action by the Manursing Island Beach Corporation against Clarence Sackett and others. From a judgment locating a boundary, plaintiff appeals. Affirmed.

Argued before KELLY, P. J., and RICH, JAYCOX, MANNING, and YOUNG, JJ.

Joseph B. Thompson, of White Plains, and Ellery O. Anderson, of New York City (P. Chauncey Anderson, of New York City, on the brief), for appellant.

Howard E. White, of New York City, for respondents.

KELLY, P. J. This case comes to us upon plaintiff's appeal from a judgment of the Special Term defining and locating the boundary line between the property of plaintiff and the property of defendants on Manursing Island, in the town of Rye, Westchester county. The record is voluminous, comprising four books of testimony and exhibits, and it appears the trial was commenced on March 21, 1917, while the decision was not filed until November, 1920, and the formal findings of fact and conclusions of law and judgment appealed from were not filed until May, 1921. Notwithstanding the protracted trial and the voluminous record, the learned counsel for appellant says in his points that he regards the case as still "undecided" and asks this court to de

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termine "for itself which is the true boundary line." On the other hand, the learned counsel for respondents, who have taken no appeal from the judgment, asks us to dismiss the complaint because the location of the boundary line in question was not a proper subject for determination in this equity action, or, in the alternative, that we affirm the judgment or give judgment "in accordance with the prayer of the answer." And both plaintiff and defendants protest that they do not desire a retrial of the action.

[1] If the question were before us, we might have some difficulty in sustaining the jurisdiction of equity to decide the dispute between the parties over the boundary line. The plaintiff in the course of the trial expressly stated that the action was not one to quiet title, and that it was not in ejectment, and I am unable to find any facts alleged in the complaint warranting intervention by a court of equity in a dispute of this kind. But the learned trial judge denied defendants' motion to dismiss the action because of lack of jurisdiction, for the reason that, owing to the length of the trial, the voluminous character of the evidence, and the advanced age of many of the witnesses, he thought it would be unjust to dismiss the action. The defendants went on with their proof, and while the court in its final decision and in the judgment entered thereon did not locate the line as the defendants claimed it should have been located, decreeing a boundary south of that claimed by plaintiff, but north of the line claimed by defendants, no appeal was taken by defendants. Upon this record we conclude that we cannot undertake the retrial of the action in this appellate court, nor should we dismiss the complaint or proceed to render a judgment more favorable to defendants than has been decreed at the trial.

[2] The location of the disputed line depended largely upon the interpretation of the descriptions contained in conveyances executed more than a century ago with more than the usual indefiniteness found in ancient documents of this kind. Owing to the physical condition of the land, which consisted of salt meadow and sedges crossed by creeks, swamps, and ditches, many of which have disappeared from natural causes and by reason of the improvement and filling in of the land by the owners, especially in recent years, it is difficult to identify the courses and boundaries in these old deeds. The learned trial justice, who was very familiar with the locality, as appears in the record, and who, as stated in the points, visited the property during the course of the trial with counsel for plaintiff and defendants, in company with Mr. Kirby, the surveyor employed at the time jointly, has located a line dividing the properties, giving the defendants a strip of beach front on the Sound considerably less than they claimed, while he decides that plaintiff's contention that the boundary line excluded defendants from all frontage on the beach is not sustained by the evidence. The right to this beach frontage was the main cause of the dispute between the parties. It is stated to be very valuable at the present time, although it is evident from the record that until a comparatively recent period the locus in quo was a tract of sand and meadow, overflowed at times of high tide and storms by the waters of the Sound, and was regarded as of little value by the owners.