attorney to proceed and enforce lien of the attorney was merged in said judgment. such assignment. Whereupon it Foster & Thompson, for applt. The action was one of three brought to enjoin the entry of a decree in the matter of the estate of W., deceased. In two of the cases the court, on appeal, sustained the defendant's demurrer on the ground that the complaints did not state Held, The judgment being exclufacts sufficient to constitute a cause sively for costs and disbursements, of action. In the third, in which an the attorney had a lien on it to the issue of fact was joined, the General full amount, and payment of it to Term, on appeal, held that such a the defendant was wrongful, for the proceeding was taken by plaintiff record itself was notice to the plainsimply to delay defendants. The tiff of such lien. 28 N. Y., 237; 51 main issue now waits review at the id., 140. Court of Appeals. In the interim The notice given to the plaintiff's the plaintiff has procured from one attorney is a mere admission that of the defendants a satisfaction for the costs had been assigned before costs and disbursements in the first the judgment was recovered. It action. admits of the construction that he was merely an equitable assignee, and justice seems to require that he should be so treated. Order affirmed with $10 costs and disbursements. The moving affidavit on the motion showed that the judgment was solely for costs; that the disbursements were paid by the defendant's attorney; that the attorney was unpaid, that the plaintiff went out of the state to get the satisfaction, J., concurs. ignoring defendants' attorney in Opinion by Gilbert, J.; Dykman, fact, and his attorney of record in EXTRA ALLOWANCE. SUR the case. A notice was served by respond ROGATES. ent's attorney on appellant's attor- N. Y. SUPREME COURT. ney, which read as follows, "Gentlemen, please take notice that the clerk has readjusted the costs of the defendants * * * and that said costs, etc., have heretofore been assigned to me on account of my costs herein." The appellant's attorney claimed that a notice was given by the respondent's attorney to him that he claimed the costs as assignee of the judgment, and that therefore the GENERAL TERM. SECOND DEPT. Decided September, 1880. The Supreme Court has no power to make an of the expenses incident to administration of appeal, this court acquired jurisdicthe said decedent's estate. The executors tion to make an extra allowance of are bound to defray the said incident expenses, and to rely, for reimbursement, upon costs only after judgment. Code the settlement of their accounts, at which Proc., §§ 318, 308. settlement the beneficiaries under the will are entitled to be heard. Provided it was the duty of the executors to resist the appeal from Appeal from an order of the the surrogate's decree, they were Special Term, granting $3,000, and bound to defray the expenses incidirecting the surrogate of Rockland dent thereto, and to rely for reimCounty, custodian of the estate of bursement upon the settlement of John Hancock, to pay the same to their accounts as executors, and A. S. Walsh et al., executors of upon such settlement the beneficiaJohn Hancock, or to their proctors ries of the will are entitled to be and counsel, "that sum being fixed heard. If the executors could not as the amount that the said execu- administer the will on account of tors may spend and use from the insufficient means to defray the exestate of said John Hancock, deceased, to prosecute suits mentioned in the petition, as necessity may require." The decedent left an estate of over $130,000. A contest arose over the codicils in the will left by him, which, after a very long hearing, resulted in the rejection of the codicils by the surrogate of Rockland County. The plaintiff S. is one of the legatees under the will, and, with another, was named executor in the codicils declared void. There was an appeal taken from the decision of the surrogate by the plaintiff S. The said S. and the executor named in the codicils take this appeal from this order herein made. Man & Parsons, W. Shupe and A. Fallon, for applts. A. G. Hull, for respts. Held, The order made is void for lack of power in the court to make it. This court had no power to make an allowance, by way of costs, in the Surrogate's Court. After the penses, or for other causes, they should renounce the office. Neither the surrogate nor this court has power to make an appropriation from the property left by the deceased in anticipation of the expenses of administering the same. Such property belongs to the beneficiaries of the will, and they cannot be deprived of the same save by due process of law. The effect of the order appealed from would be to change the order of proceedings of executors in accounting as fixed by law, which enacts that such accounting must be done after expenditure, and to give legal sanction to items of expenditure by the executors without affording to cestui que trust an opportunity to be heard respecting the same. Order reversed, with $10 costs and disbursements, and restitution should be awarded. Opinion by Gilbert, J.; Barnard, P. J., concurs. ADVANCES. ACT. RECORDING MORT- on the same premises for $450 to GAGE TO SECURE FUTURE the defendant, Wood, on the 3d of June, 1875. This mortgage was recorded on June 7th, 1875. Wood foreclosed his mortgage and bought in the property at the sale. N. Y. SUPREME COURT. GENERAL Nathaniel Ketcham, respt., v. Decided September, 1880. A mortgage to secure future advances to a notice of any advance actually made, for ascertained upon such inquiry. Appeal from a judgment for the foreclosure of a mortgage, entered on an order of the Special Term confirming the report of the referee. When the plaintiff made the four payments it did not appear that he had any knowledge of the Wood mortgage. The referee reported that the plaintiff's mortgage was a prior lien on the premises. Miller & Tuthill, for applt. J. S. Snedeker and J. J. Armstrong, for respt. Held, As neither the referee's fendings, the mortgage itself, or any evidence shows that the mortgage contemplated further advances after its delivery, the question is whether the plaintiff's mortgage is entitled to priority over the defendant Wood's mortgage as to the advances which were made after the recording the Wood mortgage. A mortgage to secure future advances to a specified amount is valid, and when on record is notice of a lien to the extent of the advances specified. But in the absence of an agreement for further advances, and none are referred to in the mortgage, the record thereof is not notice that it was given to secure further advances. It is notice of any advance actually made, for though the record itself conveys no notice that any sum less than that stated therein was advanced, yet it is sufficient to put any one on inquiry, and is notice of any fact which would in the course of business be In May, 1875, the defendant K. executed and delivered a mortgage to the plaintiff to secure the sum of $300 with interest on demand. This mortgage was recorded in May, 1875. At the time of the execution and delivery of said mortgage, plaintiff advanced $75, while the balance was paid as required from time to time to pay for labor and materials used in building a dwelling house upon the premises in suit. The last payments were made on June 9, $37; June 12, $45; June 29, $40; June 13, $40; all in the year 1875. The said defendant K., being indebted for lumber and materials, ascertained upon such inquiry. 15 executed and delivered a mortgage N. Y., 354; 2 Sand. Ch., 78. The defendant, Wood, is charge Judgment reversed, new trial able with notice only of the fact that granted, with costs to abide the Opinion by Gilbert, J.; Barnard, DEMURRER. JUDGMENTS. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Caroline T. Liegeois, respt. v. John McCracken, applt. Decided September, 1880. $75 had been advanced by the event. plaintiff before Wood took his mortgage. At the time of such P. J., concurs. delivery of Wood's mortgage, the plaintiff's lien amounted to $75, and we are of opinion that if the defendant Wood had actually notified the plaintiff that he had obtained a mortgage on the same premises, the lien of plaintiff's mortgage for advance made after said notice would have been subordinate to that of Wood's mortgage. This point does not appear to have ever been directly adjudicated in this state. Though in this case the plaintiff had no actual notice, yet the legal effect of the statute relating to the recording of conveyances and mortgages is to make such record notice to incumbrances accruing subsequent to the record. The record of plaintiff's mortgage was notice to the defendant Wood only of facts which Appeal from an order denying a actually existed, and Wood might motion made to vacate and set aside lawfully have taken another mort- an interlocutory judgment entered gage on the mortgagee's equity of herein, and for leave to defendant redemption. That included the to enter a final judgment dismissing whole estate in the mortgaged the complaint. Upon the trial of a demurrer the court is re- The entry of a judgment in these cases is neces- premises, save the lien then ex- The defendant demurred to the isting in favor of the plaintiff. complaint on the ground that the That being so, the plaintiff could same did not contain facts sufficient not increase the amount of his lien to constitute a cause of action. The without becoming in such respect Special Term sustained the demuran incumbrancer subsequent to Wood. The record of Wood's mortgage, therefore, was sufficient notice to the plaintiff. The authorities are conflicting. 2 Wash. R. P., ch. 16, § 4 and 42, et. seq.; 1 Jones on Mort., §§ 365 to 378; Thomas on Mortgages, pp. 61-62; 4 Kent Com., 175. rer, with leave to plaintiff to amend in twenty days on payment of costs. An order was made in accordance with that decision, and duly served, but no judgment upon the decision was entered by the defendant. The plaintiff did not amend, but, at the expiration of twenty days from the service of the order, caused a judg ment to be entered that the de- compliance with the interlocutory murrer be, and the same hereby is judgment. sustained, with leave to plaintiff to To the objection that if there be a amend her complaint within twenty compliance by the party in fault days on payment of the sum of with the terms of the order no judg$17.66, defendant's costs as adjust-ment will be necessary, the answer ed, whereupon the aforesaid motion is that an interlocutory judgment is was made. necessary to impose terms, and there can be no violation of them W. D. Veeder, for applt. S. D. Morris and F. Fellowes, for until the time fixed for compliance respt. by such judgment has elapsed. Held, Upon the trial of a demurrer the court is required to direct the final or interlocutory judgment to be entered thereupon. Code of Civ. Proc., § 1021. The direçtion was not formally given in this case, but both parties treat the order as a direction, though differing as to its mandate. To give the order legal effect it must be treated as a direction of some kind. Re As the decision did not direct a final judgment to be entered herein, application for the same must therefore be made as upon a motion Code of Civ. Proc., § 1230. Order affirmed, with costs and disbursements. Opinion by Gilbert, J. All concur. AMENDMENT OF UNDERTAK- garding it as a direction to enter N. Y. SUPREME COURT. GENERAL judgment, it devolved upon the clerk at once to enter judgment in conformity therewith, namely, that the demurrer be sustained, and that the plaintiff have leave to amend. This judgment would be interlocutory It must either be such or a final determination of the rights of the parties. Code of Civ. Proc. § 1200. A judgment which permits a party to plead anew, or amend, is an interlocutory one. Id., § 1021. This section also provides when such a judgment is directed, the latter must also direct the entry of a final judgment in default of compliance with the interlocutory judgment by the party in fault. The Legislature evidently intended in these cases to substitute an interlocutory judg ment for an order, and to allow a final judgment only on a failure of TERM. SECOND DEPT. John O. Sullivan, respt., v. Thomas Conners, applt. Decided September, 1880. In a case on appeal from the Supreme Court to the Court of Appeals, a motion to amend the undertaking on appeal is properly made in the Supreme Court. The attorney for the appellan tintended to serve an undertaking on appeal, the terms of which should bind the sureties thereon for costs only. Not having a printed blank form of undertaking without a stay, he used a blank intended for use when a stay is sought. He struck from the blank the usual recital relating to a stay, but by inadvertence and mistake omitted to strike therefrom the operative clause. A motion on an order to show cause was made to amend such undertaking, so that the liability of the sureties would be for costs instead of for the judgment. The motion was granted. Held, The motion was proper and the order rightfully granted. Appeal from an order of the Spe |