sible under the provisions of this article, and such tax so imposed shall be due and payable forthwith by the executors or trustees out of the property transferred."

If taxable at all against the Jacobs, it must be at 5 per cent.

As to the third ground of objection: It was not claimed upon the argument that the Jacobs had not accepted the benefit of the provi sion made for them in the codicil; on the contrary, the whole argu ment under this head was based upon the assumption that they had accepted and were acting under it. The statute refers to all property transferred by will, not the kind, nor what it is for; but the passing of the title by the will. In the present case, how was this $75 a month transferred? Only by will-no other method. The will alone fixes the amount and time of payment. The courts have already effectually held that this kind of transfers is taxable. Matter of Gould, 156 N. Y. 423, 51 N. E. 287; Matter of Rogers, 71 App. Div. 461, 75 N. Y. Supp. 835; Matter of Huber, 86 App. Div. 458, 83 N. Y. Supp. 769; Matter of McAvoy, 112 App. Div. 377, 98 N. Y. Supp. 437.

As to the fourth objection: It is provided in section 230 of the law of taxable transfers that:

"Where an estate for life or for years can be divested by the act or omission of the legatee or devisee, it shall be taxed as if there were no possibility of such divesting."

As to the fifth ground: If this fund is taxable against the Jacobs, it is not taxable against the executor; and, if wrongly taxed against him, that cannot be a ground for not correcting that error. The $75 a month, given to and accepted by Genevieve and Nathaniel P. Jacobs, should have been assessed against them and at the rate of 5 per cent. By the eleventh clause of testatrix's will she distributes the residue of her estate to her brother and sisters, except that she provides that, if her sister, Leach Catherine Kersey, shall die before the final distribution of said estate, then and in that event her share shall go to the daughter of said Leah Catherine Kersey, viz., Margaret E. Kersey. Under the portion of section 230 of the taxable transfer law (Laws 1896, p. 874, c. 908, as amended by Laws 1901, p. 385, c. 173), first cited herein, this legacy should have been assessed to Margaret E. Kersey, and at the rate of 5 per cent.

An order may be entered setting aside the appraisal and order assessing the tax, already had and made therein, and directing the county treasurer to make a new appraisal in said estate, as indicated herein, with $10 costs, besides disbursements to the attorney for the Comptroller, to be paid out of the estate. Decree accordingly.

(55 Misc. Rep. 498.)

and 140 New York State Reporter

INDEPENDENT BREWING CO. v. DURSTON et al.

(Cayuga County Court. July, 1907.)

1. CHATTEL MORTGAGES-NOTICE-PRIORITIES.

Where a second mortgagee accepts a chattel mortgage with a covenant that the property is unincumbered, except by a certain prior mortgage described, he acquires actual notice of the prior mortgage and its conditions. [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 242-244.]

2. SAME-TRANSFER OF MORTGAGED PROPERTY-MERGER.

Where a chattel mortgagor transfers the property to the holder of a first mortgage on them, subject to the indebtedness secured by the mortgage, no merger results.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 506.]

3. SAME-Default.

Where, after default, the chattel mortgagee accepts from the mortgagor an agreement modifying its terms, the failure of the mortgagor to perform its conditions as modified is a fresh default.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 520-525.]

4. SAME-ACTION FOR POSSESSION.

A first chattel mortgagee sued the second mortgagee to recover the chattels, and offered the first mortgage in evidence, containing the clause allowing the mortgagee to take possession at any time. Held error to exclude same.

Appeal from City Court of Auburn.

Action by the Independent Brewing Company against John J. Durston and Walter Bench. Judgment for defendant, and plaintiff appeals. Reversed.

Oscar Tryon, for appellant.

Frank C. Cushing and Frank E. Cady, for respondents.

GREENFIELD, J. The defendant Durston, a second mortgagee of personal property, claiming under a mortgage dated August 1, 1905, and expressly made subject to a prior mortgage held by plaintiff "upon which there remains unpaid the sum of $210," has been allowed by the judgment appealed from to seize upon the property covered by plaintiff's mortgage, while the same was contained in plaintiff's building, and retain it as his own, although the plaintiff's mortgage was long past due, and the property, at the time of the commencement of the action, had been seized upon by a deputy sheriff hostile to the plaintiff. This statement calls for a reversal of the judgment, unless, notwithstanding such situation, a good reason exists why the judgment should stand. That the facts above recited appeared in orderly sequence from plaintiff's witnesses cannot be affirmed. Indeed, most of such facts were brought out by defendant on cross-examination, and by his own exhibits and witnesses, and that necessarily, in order to develop his position upon the question of estoppel, hereafter adverted to.

Defendant introduced in evidence his mortgage, dated August 1, 1905, wherein the mortgagor warrants that the property is free from

liens, "except as to a chattel mortgage covering a portion of the within-mentioned property held by the Independent Brewing Company, upon which there remains unpaid the sum of $210." Several times during the trial, Anton J. Lauer, the secretary and treasurer of the plaintiff, testified that plaintiff had a mortgage upon the property in question; and the defendant's attorney was persistent in his inquiries. as to how much was "due" thereon, and he finally settled upon about the sum of $100. Before the defendant would accept his mortgage, he went to see Lauer; and Lauer told him about the plaintiff's mortgage and asserted its rights as first mortgagee. By accepting a mortgage in terms second to plaintiff, the defendant Durston is, of course, deemed to have had actual notice of plaintiff's mortgage and all the provisions thereof. 2 Coppey, Chat. Mort. 1283. On July 10, 1905, Charles W. Moore, the mortgagor in plaintiff's mortgage, executed to plaintiff his bill of sale of the mortgaged property, but wherein it was provided that the sale was "subject to an indebtedness of $210, secured by chattel mortgage held by the Independent Brewing Company"; and it is claimed by plaintiff that the object of this clause was to evidence the intention of the parties that a merger was not intended. Certainly, if that transfer was "subject" to the mortgage, it could have no effect upon the mortgage. From that time on every person who has been in possession of or made claim to the mortgaged property, down to and including the defendant Durston, has recognized the existence and validity of the plaintiff's mortgage, and that in express terms. The intention is clear that no merger was intended, and, if so, none took place. Bascom v. Smith, 34 N. Y. 320.

The defendant Durston's contention is that the plaintiff then became the owner of the property and the mortgage ceased to exist as such; that, when plaintiff witnessed without objection the transfer, by bill of sale, of the property in dispute, from C. W. Moore (plaintiff's mortgagor) to A. C. Moore (Durston's mortgagor), and knowing at the same time that Durston was about to advance money thereon to A. C. Moore, it became and was forever estopped from denying that A. C. Moore had title to the property and could give a good mortgage thereon, and that in any event the mortgage debt was not past due, nor was any person who was liable for the mortgage debt in default. Certain memorandum agreements were put in evidence by defendants between the two Moores and Carroll, the person in possession of the saloon at the commencement of the action, and the plaintiff, from which it is claimed that the default in payment of the plaintiff's debt was waived, and the time of payment extended. The first one (with C. W. Moore) states that the mortgage is to remain "indefinite." A. C. Moore (Durston's mortgagor) says:

"I assume C. W. Moore c. mtg. $210 and receive 50 credit on each barrel paid above $5.00 on the mtg. a/c providing I keep up payments promptly of said 50¢ additional payments."

Carroll assumed the same obligation incidental to an agreement to rent plaintiff's premises and sell its ale and beer, the whole agreement being conditional upon his paying $40 per month rent in advance, and for which he was in default at the time this action was in

and 140 New York State Reporter

stituted. If the agreement to accept payment as specified for an indefinite time was a waiver of the default, and reinvested the mortgagor or his assigns with the title of the property, which is doubtful, the failure of Carroll to keep his agreement was certainly a new default. Indeed, the act of the defendant Durston in seizing the property, turning Carroll out of the saloon, and locking it up, forced Carroll to default on his last agreement; and, whatever rights Durston or his mortgagor may have acquired by the alleged estoppel, they were bound at their peril to see to it that no new default took place.

There would seem to be no good reason why the plaintiff should not have succeeded upon the merits. If, upon the proof as it stood, the judgment is right, then the inquiry arises, did the trial court err in refusing to admit plaintiff's mortgage in evidence? After plaintiff's secretary had testified that they had a form of mortgage which they used in their business, he was asked by plaintiff's counsel:

"Q. I ask you if that paper is the form of mortgage which the Independent Brewing Company uses in that business. (Objected to as irrelevant and immaterial.) By the Court: Is it the mortgage executed in this case? A. Yes, sir. By the Court: I don't see as it's material."

As plaintiff's complaint then stood, he claimed to be the owner of the property in dispute, and, if he held a past-due mortgage thereon, he was such owner. Kimball v. Farmers' & Mechanics' Bank, 138 N. Y. 500, 34 N. E. 337, 20 L. R. A. 497. The complaint was afterward amended so as to claim in terms the property under the mortgage, and the mortgage was again offered in evidence and rejected. The only ground urged against its reception was that it was irrelevant and immaterial. It was both relevant and material. The recitation thereof in Durston's mortgage alone made it so.

It cannot be said that, in view of the fact that it already appeared in a general way by statements in the various exhibits and from witnesses that such a mortgage was outstanding, that no harm was done by its exclusion. The offer of the paper was in connection with a statement that it contained a clause making it a security for all moneys advanced beyond the original consideration; and, as Carroll and the two Moores assumed the mortgage, it was binding. upon them. Again, an inspection of the paper offered shows that it contains a clause allowing the plaintiff to take possession of the mortgaged property at any time, before or after a default in payment. This clause should have been received and considered by the court below, and its exclusion is thought to be error.

The judgment should be reversed, with costs; and it is so ordered. Judgment reversed, with costs.

LEVY V. MURRAY.

(Supreme Court, Special Term, New York County. November 25, 1907.) NUISANCE-OBSTRUCTION OF SIDEWALK-INJUNCTION.

The occupation of a part of a sidewalk, used by passers-by and those seeking entrance to plaintiff's premises, with a structure of iron work and I glass to obtain access to the basement of the building, is a private nuisance, which plaintiff may enjoin, and as to which he may recover his special damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 1-26. 64-66.]

Action by H. Howard Levy against John L. Murray to declare a structure to be an unlawful obstruction of the public highway and to abate the same. Decree for plaintiff.

Hoadley, Lauterbach & Johnson (Henry L. Scheuerman, of counsel), for plaintiff.

St. John & Talley (John J. Delany, of counsel), for defendant.

NEWBURGER, J. The plaintiff is a tenant on the third story of the building on the northwest corner of Thirty-Fourth street and Broadway, in this city. His tenancy commenced on March 8, 1905, under a lease for a term of five years, at a rental varied from $2,500 to $3,000. At the commencement of the tenancy the sidewalk along the building upon Thirty-Fourth street side was absolutely unincumbered. Subsequently the defendant leased the basement and a room on the ground floor adjoining the entrance to the building. The defendant, in order to obtain access to the basement, erected upon the sidewalk a structure of iron work and glass. This structure stood out from the side wall of the building about six feet and up to within about five feet of the doorway leading to the building, and was completed. some time in September, 1905. The space thus occupied by the defendant constituted a part of the sidewalk to be used by passers-by and those seeking entrance to plaintiff's premises. In October, 1906, this action was brought to declare the structure to be an unlawful obstruction to the public highway and that the same be removed. The defendant admits the erection of the structure complained of, but contends that the plaintiff acquiesced in the construction, and therefore is estopped.

Mr. Justice Earl, in Callanan v. Gilman, 107 N. Y. 365, 14 N. E. 264, 1 Am. St. Rep. 831, says:

"The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance.

It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them."

In Ackerman v. True, 175 N. Y. 353, 67 N. E. 629, it was held:

"It is well established by the decisions of this court that interference with public and common rights create a public nuisance, and, when accompanied with special damage to the owner of lands, give also a right of private action 106 N.Y.S.-44