and 106 New York State Reporter N. Y. 128, 22 N. E. 572, 5 L. R. A. 541, 15 Am. St. Rep. 494; Petersen v. Bank, 32 N. Y. 21, 88 Am. Dec. 298; In re Butler, 38 N. Y. 397; Wilkins v. Ellett, 108 U. S. 256, 2 Sup. Ct. 641, 27 L. Ed. 718; Wyman v. U. S., 109 U. S. 654, 656, 3 Sup. Ct. 417, 27 L. Ed. 1068), although the foreign representative could not in this state have enforced the claim by action (Chapman v. Fish, 6 Hill, 554; Parsons v. Lyman, 20 N. Y. 103). In Vroom v. Van Horne, 10 Paige, 549, 556, 557, 42 Am. Dec. 94, 98, Chancellor Walworth stated that the results of the cases in this state seem to be that a foreign executor or administrator, appointed by the proper tribunal of the deceased's domicile, was authorized to take charge of the property here, and to receive debts due to the deceased in this state, "where there is no conflicting grant [of letters] here, and when it can be done without suit." See, also, Reynolds v. McMullen, 55 Mich. 568, 22 N. W. 41, 54 Am. Rep. 386. Where, however, at the time of the payment by the debtor, there is a conflicting grant of letters by the courts of this state, the authorities are unanimous that the foreign administrator is superseded, and he has no power to act. Stone v. Scripture, 4 Lans. 186; Society v. Vogel's Ex'x, 76 Ala. 441, 52 Am. Rep. 344; Pond v. Makepeace, 2 Metc. (Mass.) 114. The fact that the foreign administrator had possession of the pass book does not affect the defendant's liability. As the learned trial justice says in his opinion: "It is insisted, however, that the bank had, under the provisions of its by-laws, which had been assented to by the depositor, the right to pay upon production of the pass book, and that it would not be liable to any depositor for frauds committed on it or its officers by producing the pass book and drawing money without the knowledge or consent of the owner.' That this provision of the by-laws was for the bank's protection solely will not be denied. Nor does it excuse the bank from the necessity of using due care in ascertaining if the person demanding payment is the person entitled. This provision may well apply to a payment of a part of the fund, and still not be binding on the depositor when an attempt is made to close the account and draw out the entire fund. In the latter case it would seem that more than ordinary care should be required of the bank. The production of the foreign letters would have been sufficient to put the bank upon its inquiry as to whether there was any officer authorized by the courts of this state to take possession and control of the assets of the decedent, and this it does not appear to have done. Ignorance of the law excuses no one, and the bank had the undoubted right to demand of the foreign administrator the production of some kind of a certificate that there was no one in this state authorized to receive. It would, moreover, have been amply protected in refusing such payment altogether, because the foreign administrator could not maintain an action in this state to recover. And, such being the case, we are forced to the conclusion that due care and diligence were not exercised in this instance." Appleby v. Bank, 62 N. Y. 12; Geitelsohn v. Bank, 17 Misc. Rep. 57, 39 N. Y. Supp. 840; Id., 20 Misc. Rep. 84, 45 N. Y. Supp. 90; Ficken v. Bank, 33 Misc. Rep. 92, 67 N. Y. Supp. 143; Gearns v. Bank, 135 N. Y. 557, 562, 32 N. E. 249. Under the circumstances, it would seem that ordinary care demanded investigation by the debtor as to whether the surrogate's court of New York county (the county in which the defendant carried on business) had granted letters of administration. Such an examination would at once have disclosed the plaintiff's appointment, and given the defendant full notice of his rights. Failure to exercise this precaution was negligence on the part of the defendant sufficient to charge it with all the knowledge or information which such an examination would have afforded. The defendant knew that the intestate had property within the county of New York, and that administration might in consequence be had there as well as at the intestate's place of domicile. This was sufficient to put the defendant upon inquiry, and the rule is that whatever is sufficient to make it the duty of one to inquire as to the rights of others is considered legal notice to such person of those rights which inquiry would disclose. Ellis v. Horrman, 90 N. Y. 466, 474; Peck v. Bank (R. I.) 19 Atl. 369, 7 L. R. A. 826; Bank v. Lee (Ala.) 12 South. 572, 19 L. R. A. 705. Judgment was properly rendered in favor of plaintiff, and it must be affirmed, with costs. Judgment affirmed, with costs. All concur. (36 Misc. Rep. 161.) BUEB v. GERATY et al (Supreme Court, Appellate Term. October, 1901.) CHATTEL MORTGAGE SUBSEQUENT MORTGAGEE IN GOOD FAITH. A firm, to induce plaintiff to become accommodation indorser of its notes, promised to give him a chattel mortgage for his protection should he need it at any time. Thereafter, before the note was due, he demanded and received a chattel mortgage, and on maturity of the note was compelled to pay it. The firm had given a prior chattel mortgage, and defendants claimed the property secured thereby at a foreclosure sale under such other mortgage. Such mortgage, though filed in the county where one partner resided, was never filed in another county, in which the other partner resided. Held, that plaintiff was a subsequent mortgagee in good faith, for a present consideration, within Laws 1833, c. 279, § 1, and was entitled to attack, by replevin of the chattels thereby mortgaged, the validity of the prior chattel mortgage for the failure to file it in the county in which one of the partners resided. Appeal from city court of New York, general term. Action by Otto J. Bueb against Annie M. Geraty and others. From a judgment of the general term affirming a judgment for plaintiff, and from an order denying a new trial, defendants appeal. The mortgagor, George H. Ball, resided in the county of Kings, and the mortgagee, John J. Geraty, resided in the county of New York, at the time of the execution of the chattel mortgages sued on. Affirmed. See 64 N. Y. Supp. 1132, 66 N. Y. Supp. 385. Argued before FREEDMAN, P. J., and MCADAM and GILDERSLEEVE, JJ. Edmund T. Oldham (John F. Couch, of counsel), for appellants. Edwin F. Stern, for respondent. MCADAM, J. The action is in replevin to recover the possession of certain personal property claimed to belong to the plaintiff under a chattel mortgage made to him by the firm of Geraty & Ball, September 16, 1895, and duly filed in both New York and Kings counties. The defendants claimed title by purchase at a sale under a prior mortgage executed by said firm to the defendant Connery, August and 106 New York State Reporter 27, 1895, and filed in New York county on the following day. The cause has already been twice before the appellate term (28 Misc. Rep. 134, 59 N. Y. Supp. 249; 32 Misc. Rep. 720, 66 N. Y. Supp. 385), which, on the first appeal, held that the Connery mortgage was void as against creditors and subsequent mortgagees in good faith, because not filed in Kings county, where one of the members of the firm resided. The court did not sustain the recovery then had, because not satisfied that the plaintiff, though a subsequent mortgagee, was one in good faith, within the meaning of the statute (Laws 1833, C. 279, § 1). The plaintiff claims that he has since abundantly supplied this proof. It appears that the plaintiff, on June 15, 1895, indorsed a note for $1,500 for the accommodation of Geraty & Ball, under the following circumstances: Mr. Ball, with Mr. Geraty, called upon the plaintiff, who testified: "Mr. Geraty had a note ready, and wanted me to indorse it. I would not indorse the note, because I had never drawn or indorsed a note before. They both promised me that if I would indorse the note they would keep me harmless. Then Mr. Ball told me he would assign to me his half interest in the business. I said I didn't want that. Then they said they would give me a chattel mortgage * on the chattels in the prune juice business. Up to that time I had not indorsed the note. They told me not to record it, as it would affect their credit. I told them it would not be any good to me. They both begged me to do it, and Mr. Ball said that, in case something should happen in the business, he would give me a mortgage which I could record; and Mr. Geraty was standing near him when he said it, and Mr. Geraty said the same thing." Mr. Ball testified that he said to the plaintiff: "You indorse this note, let me get the money, and if, at any time, anything should happen, I will give you a mortgage, and record it; give you a mortgage that you can use, so that you are protected. Mr. Geraty was present, and he consented to everything that took place." On these assurances the plaintiff indorsed the note. The mortgage was given September 16, 1895, to secure the payment of said note. The note matured October 18, 1895, was not paid by the makers, and the plaintiff was obliged to pay it. Of course, the plaintiff did not become a creditor within the statute, because not a judgment creditor. Volckers v. Sturke, 18 Misc. Rep. 458, 42 N. Y. Supp. 84; Witherbee v. Taft, 51 App. Div. 87, 64 N. Y. Supp. 347; Karst v. Gane, 136 N. Y. 323, 324, 32 N. E. 1073. The question is whether the plaintiff became a subsequent mortgagee in good faith, within the meaning of the statute. The defendants claim that the plaintiff was a mere holder of an antecedent debt, and that the giving of the mortgage to him, therefore, did not enable him to attack the nonfiling of the Connery mortgage; the rule being that an unfiled. chattel mortgage, valid as between the parties, is good as against a subsequent mortgage, which has been filed, but which was given to secure an antecedent debt. Doig v. Haverly, 92 Hun, 176, 37 N. Y. Supp. 455; Cary v. White, 52 N. Y. 138; Jones v. Graham, 77 N. Y. 628; Button v. Rathbone, Sard & Co., 126 N. Y. 187, 27 N. E. 266. The obligation assumed by the plaintiff by his indorsement was a conditional one. He became liable to pay only in case Geraty & Ball did not. They, to induce such indorsement, agreed to give him a mortgage in case he required one for his protection, and, finding he did need one, gave him the mortgage in suit September 16, 1895; and, Geraty & Ball having failed to pay the note when it matured the month following, the plaintiff's claim then ripened into an enforceable demand, because he was obliged to and did discharge the existing obligation. The objection that the promise to execute the mortgage to the plaintiff was oral, and not enforceable under the statute of frauds, disappeared when the mortgage was actually given, and the consideration was a valuable and a present one. The consideration in an executory agreement may be prior in point of time to fulfillment, but this does not make it an antecedent consideration, within the meaning of the law, since it contemplates the entire transaction as it occurred. The plaintiff herein incurred the obligation and parted. with his money on the faith of the mortgage which he ultimately received. It completed one transaction, of which the indorsement and payment were but part. We hold, therefore, that the plaintiff's debt was not an antecedent one, within the authorities, but that he became a mortgagee in good faith within the statute, and entitled to avail himself of the failure to properly file the prior mortgage to Connery. Harder v. Plass, 57 Hun, 540, 544, II N. Y. Supp. 226, is inapplicable, for it purports to follow Ötis v. Sill, 8 Barb. 102, which holds that at law a mortgage of property, not belonging to the mortgagors, but to be acquired in futuro, is void. That feature does. not exist here. The mortgagee, in Harder v. Plass, advanced $200 before the mortgagor acquired title to the property, and after he got. title executed a chattel mortgage pursuant to a previous promise, not only for the $200, but for $94.25, owing on an old account. In that case both obligations were pre-existing when the mortgagor acquired title, and hence the mortgagee was not one in good faith, within the meaning of the law. On the second appeal (32 Misc. Rep. 720, 66 N. Y. Supp. 385) the appellate term held that the submission of the issues was at variance with the rule laid down on the preceding appeal (28 Misc. Rep. 134, 59 N. Y. Supp. 249); hence the third trial was necessitated. The third trial seems to have been conducted on the lines indicated by the appellate term, and, this being so, the plaintiff, on the facts as they now appear, is entitled to an affirmance of his judgment, with costs. Judgment affirmed, with costs. All concur. (36 Misc. Rep. 119.) In re OPENING OF EDGECOMB ROAD. (Supreme Court, Special Term, New York County. October, 1901.) 1. MUNICIPAL CORPORATIONS-LAYING OUT STREET-DAMAGES. Where a city lays out a street 80 feet wide through a strip of 100 feet, which is subject to right of way in favor of purchasers of lots in an adjoining tract of land, the owners of the remaining outside strips, 10 feet wide, on each side of the street as laid out, are entitled to an award, in view of the interest which they retain to prevent the use of such strips for street railways, telegraph lines, or pipe subways. 72 N.Y.S.-68 2. SAME-AWARD TO CITY. and 106 New York State Reporter Under the consolidation act, and by the charter of Greater New York of 1897 (chapter 378), an award is authorized to the city of New York for property owned by it and taken by it for a street; and that the property was first acquired by the city by condemnation for other purposes is immaterial. 8. SAME ASSESSMENTS. The rule, as laid down by the charter of New York, that assessments shall be based on one-half of the value of the benefited property as found by the commissioners, can be applied to a street opening, where the fixing of the assessment had not been concluded when the charter took efect. In the matter of the opening of Edgecomb Road. Hearing on objection to report of commissioners of estimate and assessment, and on motion to confirm report as to certain awards. Certain awards confirmed, and new assessment ordered as to other awards. John P. Dunn and Thomas C. Blake, for city of New York. James A. Deering, for certain property owners, in support of awards. John C. Shaw and F. A. Thayer, for objecting property owners. BISCHOFF, J. The main dispute relates to the awards of the commissioners designated as damage Nos. 12 to 52, objection to the confirmation of these awards being raised both by the city and by various property owners who are assessed for the improvement. The lots abutting on the street at this point formed a part of what is known as the "Jumel Tract," and the street itself, in width 80 feet, takes its course over a strip 100 feet wide, which was subject to a right of way in favor of purchasers of a great number of lots laid out and described with reference to a certain map made for the purposes of a partition sale in the year 1881; the easement being reserved in each conveyance delivered upon that sale. Subject to this easement, the fee to the center of the strip thus delineated was conveyed to the purchaser of each lot; and the city in this proceeding has acquired the fee for the purposes of an 80-foot street, leaving between the side of the street and the lot itself, in each instance, a strip of some 10 feet still subject to the right of way. The commissioners state in their report that in making awards for these parcels they have followed the rule laid down in Re One Hundred and Seventy-Third Street, 78 Hun, 487, 29 N. Y. Supp. 205, where it was held that the owners of lots under the Jumel sale were entitled to more than a nominal award for the taking of land for street purposes where this right of way existed. The rule thus declared by the court in the case cited proceeded upon the authority of City of Buffalo v. Pratt, 131 N. Y. 293, 30 N. E. 233, 15 L. R. A. 413, 27 Am. St. Rep. 592, but no new principle touching the measure of a substantial award in such a case was laid down. With the fee thus burdened, the right of the owner to prevent the use of the land for street railways, telegraph lines, or the laying of pipes, taken with the right of subsurface occupation, presents some matter of sub |