it. It was not shown that the defendant had any reason to believe, before the accident, that the structure was in danger of falling. In Kunz v. City, 104 N. Y. 344, 10 N. E. 442, 58 Am. Rep. 508, cited by the respondent, the counter which fell and injured the infant plaintiff was a temporary and dangerous obstruction on the sidewalk of a public street, and children, in playing about it, caused it to fall upon the plaintiff. It was tilted in such a manner that it could readily be thrown down. Ramsey v. National Cont. Co., 49 App. Div. 11, 63 N. Y. Supp. 286, also related to an incumbrance consisting of iron rails upon the public highway. While the defendant's workmen were removing the rails, one of the rails, on which the infant plaintiff was sitting, slipped from the pile, and the plaintiff fell and was injured. The rail on which plaintiff sat was tilted and slanted. There was no question as to the defendant having notice. In Follert v. Erikson, 156 App. Div. 372, 141 N. Y. Supp. 428, also cited by respondent, the city was held liable for negligence of its employés in undermining a sand bank, and leaving it in such a condition that it fell and killed plaintiff, who was playing there with other children. In that case, the city not only had notice of the perilous condition, but itself created it. In the instant case, as already pointed out, there was nothing to charge defendant with knowledge of an unsafe situation. The testimony, even on behalf of plaintiff, clearly shows that the accident was due to the willful act of a stranger in pushing the post over, so as to cause it to fall on plaintiff. We are unable to find that there was any negligence on the part of the defendant causing the accident. Judgment reversed, with $30 costs, and complaint dismissed, with costs. All concur. (98 Misc. Rep. 150) WHEELER v. SIGOURNEY et al. (Supreme Court, Trial Term, Greene County. November, 1916.) 1. MORTGAGES 153-BONA FIDE PURCHASER-CONSIDERATION. Where plaintiff's son, holding her power of attorney to convey, conveyed realty by a deed reciting a consideration of $10 and other valuable considerations, and on the same day gave his note for $1,000, which was indorsed by the payee and the defendant, and the grantee executed a mortgage to defendant reciting his indebtedness to the mortgagee in the sum of $1,000, evidenced by the note, which he had not signed, and the note was protested, and the mortgage was foreclosed, and the property sold to defendant, the fact that defendant had paid a valuable consideration for the mortgage did not alone make him a bona fide purchaser. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 344, 345, 354.] 2. MORTGAGES 154(2)-BONA FIDE PURCHASER-Notice. The fact that such note, which explained what the mortgage was given to secure, did not bear the mortgagor's signature, was sufficient to put the defendant mortgagee upon inquiry as to the actual ownership of the property. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 347-349.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 3. MORTGAGES 154(3)-BONA FIDE PURCHASER-NOTICE-POSSESSION. The fact that at the making of such mortgage, two years after the execution of the power of attorney, plaintiff remained in possession of the property, and continued in possession by herself or tenants until the foreclosure suit was begun, constituted notice to the mortgagee of plaintiff's adverse claim to the title under which the mortgage was taken. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 350-352.] 4. MORTGAGES 38(1)-DEED AS MORTGAGE EVIDENCE. The fact that the grantee in the conveyance, who gave the mortgage, was surety only for the payment of the note, and the fact that it was not pleaded in the foreclosure proceeding that he consented to renewals thereof constituting an extension of the time of payment, and his failure to defend the action upon such ground, was evidence that the conveyance by plaintiff's son was a mortgage, not included in his power of attorney to sell and convey. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 109.] Action by Candace Wheeler against Albert M. Sigourney and Martin Mager to remove a cloud on title. Judgment for plaintiff. Magrauth & Thurber, of New York City, for plaintiff. HASBROUCK, J. On the 9th day of May, 1910, and for some time. prior thereto, the plaintiff had been the owner of a parcel of real property situated near Tannersville, in the county of Greene, in this state, known as "South Acres." On that day she executed a power of attorney to her son, James C. Wheeler, giving him authority to sell the same and to execute and deliver a deed of conveyance. On the 8th day of May, 1912, James C. Wheeler in pursuance of such power deeded "South Acres" to one Albert Sigourney. The deed recites a consideration of "the sum of ten ($10) dollars, and other good and valuable considerations, dollars, lawful money of the United States." On August 20, 1912, James C. Wheeler signed a promissory note in terms as follows: "Jamaica, N. Y. City, August 20th, 1912. "Three months after date for value received I promise to pay to the order of Emil Schneeloch, one thousand 00/100 dollars ($1,000.00), at the First National Bank of Jamaica, New York City. [Signed] James C. Wheeler." Indorsed: "Emil Schneeloch. "T. F. Archer." On the same day, the 20th of August, 1912, said Sigourney made, executed, and delivered to Martin Mager a mortgage on "South Acres" providing, among other things: "Whereas, the said Sigourney declares himself and is justly indebted to the said party of the second part in the sum of one thousand ($1,000) dollars lawful money of the United States secured to be paid by a certain bond or obligation bearing even date herewith, conditioned for the payment of the said one thousand ($1,000) dollars on the 21st day of February, 1913, and the interest thereon to be computed from date at the rate of six per centum per annum and to be paid on said 21st day of February, 1913. Evidenced by note of James C. Wheeler to order of Emil Schneeloch, payable at the First NaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes tional Bank of Jamaica, New York City, and indorsed by said Schneeloch and Mager." The mortgage was recorded in Greene county on the 21st day of October, 1912. On the 20th day of November, 1912, the above note. was protested for nonpayment. The mortgage was foreclosed and the property sold on the 13th day of December, 1915, to the defendant. This action is brought to remove the cloud upon the title of the plaintiff constituted by the deed of Sigourney, the mortgage to Mager and the sale thereunder. The answer of the defendant is that he is a bona fide holder for value without notice and is protected by the record of the Sigourney deed. [1] It is true that the defendant Mager paid a valuable consideration for the mortgage above described. But that alone does not make him a bona fide purchaser. If he had notice that the deed to Sigourney had not been made for an actual consideration, or if he had notice that at the time of the execution and delivery of the mortgage the mortgagor was not in possession and that the plaintiff was in possession and occupancy under some adverse claim, he is without standing as a bona fide purchaser. The recital of consideration in the deed as above set forth does not constitute sufficient consideration. In the case of Turner v. Howard, 10 App. Div. 559, 42 N. Y. Supp. 335, Cullen, J., it is said: "The recital in the deed would be strictly true if the grantee had paid, or agreed to pay in the future, another dollar in addition to the one first mentioned, or had released a dollar of indebtedness. The rule that makes the recital evidence against strangers is an exception to the general principle, and the recital should be strictly construed and not extended beyond its necessary import. Thus construed, it was not necessarily the recital of more than a nominal consideration." See Lang v. Mueller, 149 App. Div. 927, 133 N. Y. Supp. 1130; Rose v. Adler, 165 App. Div. 921, 150 N. Y. Supp. 1110. [2] The promissory note, which explains what the mortgage was given to secure, does not bear the signature of Sigourney, the mortgagor. This should have been sufficient to have put Mager on inquiry as to the actual ownership of the property. Would it have been likely that Sigourney would have mortgaged his own property and stood surety for the payment of the note, the receipt of the proceeds of which it is not claimed he participated in? 1 Jones, Mort. § 355. [3] At the time of the making of the mortgage, which was two years after the execution of the power of attorney, the plaintiff remained in the possession of the property, and continued in such possession and occupation by herself or tenants until the year in which the foreclosure suit was instituted. Such fact constituted notice to the mortgagee of the adverse claim of the plaintiff to the title under which the mortgage was taken. Mannix v. Riordan, 75 App. Div. 137, 77 N. Y. Supp. 357; Sherman v. Kane, 86 N. Y. 57; Webb on Record of Title, § 231; New York Life Insurance & Trust Co. v. Cutler, 3 Sandf. Ch. 176. The general rule which should govern the conduct of purchasers has been laid down by the court of last resort in the nation, quoting Burwell's Adm'rs v. Fauber, 21 Grat. (Va.) 446, 463: "Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best-settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may not be a bona fide purchaser. He is bound, not only by actual, but also by constructive, notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without notice." Simmons Creek Coal Co. v. Doran, 142 U. S. 437, 12 Sup. Ct. 239, 35 L. Ed. 1063. [4] There is the further fact, which appears in the papers, that the mortgagor, Sigourney, was surety only for the payment of the note dated August 20, 1912, and that that note was renewed until some time in the year 1914. It is not alleged in the foreclosure proceedings that Signourney consented to the renewals of the note which constituted an extension of time for payment. The failure of Sigourney to defend the foreclosure action upon such ground constitutes evidence that the transaction between James C. Wheeler and Sigourney was that of a mortgage by Wheeler and power to mortgage did not exist in the power of attorney which he held. "The power [to sell] is not to be extended by construction. The principal determines for himself what authority he will confer upon his agent, and there can be no implication from his authorizing a sale of his lands that he intends that his agent may at discretion charge him with the responsibilities and duties of a mortgagor." Jeffrey v. Hursh, 49 Mich. 32, 12 N. W. 898. We think that the transaction resulting in the making of the note and the taking of the mortgage upon the part of Mager fails to substantiate his claim under all the circumstances to be a bona fide purchaser. There should be judgment for the plaintiff, setting aside and canceling the deed to Sigourney, the mortgage to Mager, and the judgment of foreclosure thereon, and the deed, if any, thereupon made. Judgment accordingly. EDWARD DAVIS, Inc., v. ADLER et al. (Supreme Court, Appellate Term, First Department. March 28, 1917.) 1. EVIDENCE 370(3)—CORPORATE MINUTES-AUTHENTICATION. Minutes of a corporate meeting, if written out, may be proved by any witness who can testify to their correctness, whether or not he was the secretary de jure. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1562.] 2. CORPORATIONS 361-MEETINGS-PROOF OF TRANSACTIONS. The transactions at a corporate meeting, if no minutes were preserved, may be proved by any one who was present and can recall them from memory, or by aid of notes taken by him at the time. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1506.] Appeal from City Court of New York, Trial Term. Action by Edward Davis, Incorporated, against Felix Adler and others. From a judgment dismissing the complaint at the close of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 164 N.Y.S.-5 plaintiff's case, plaintiff appeals; defendant Al Jolson being sole respondent. Reversed, and new trial ordered. Argued March term, 1917, before BIJUR, HENDRICK, and WEEKS, JJ. Olcott, Gruber, Bonynge & McManus, of New York City (Irving L. Ernst, of New York City, of counsel), for appellant. William Klein, of New York City (David L. Podell, of New York City, of counsel), for respondent. HENDRICK, J. In this action to hold a director liable for the debts of a membership corporation, the answer admits the allegation that the corporation was duly organized under the Membership Corporations Law and denies all other allegations of the complaint. Those allegations are (a) that plaintiff is a domestic corporation; (b) that plaintiff sold and delivered to the membership corporation meats and other provisions of the agreed value of $3,012.95; (c) that the corporation drew a check on its bank for $1,500 and delivered it to plaintiff on account; (d) that the check was not paid; (e) that within one year suit was brought on the check; (f) that judgment was entered for the amount in plaintiff's favor; (g) that execution was issued and returned unsatisfied; (h) that defendant-respondent was a director; and (i) that the action was brought within one year after the return of execution. I think these allegations constitute a cause of action. Plaintiff began his proof with (h), on page 16 of the printed case, and continued to page 88, when he gave it up, and his complaint was dismissed. First, he asked a witness, who testified that he was a member of the corporation, and its secretary, when he became secretary. He was not allowed to answer that, nor that he acted as secretary. He then testified that the book shown him was the corporate minutes between October and December. The answer as to the time covered was stricken out. The next question was whether the minutes were kept by him. He was not permitted to answer that, nor whether any of the "minutes" were signed by him, although the contents on many pages bore his signature. He was not permitted to say what those contents were, and his answer that they were signed "Francis Morey, Secretary,” was stricken out. After saying that they were signed at the offices of the club, which occupied an entire building, partly sublet, his answer that the business was to furnish lodging and meals to members was stricken out. An inquiry whether the corporation bought merchandise for such business was ruled out as to the purposes of the purchases. Then the witness testified that the corporation had a constitution and by-laws, which were printed; but he was not permitted to identify the booklet, nor to say whether the constitution and by-laws were correctly set forth therein, nor whether it was printed under the direction of the officers and board of control, nor whether the corporate affairs were administered by officers and directors, nor whether he was one of them. He testified that records of the meetings of the board of control were kept, but was not permitted to say |