Smith on Receivers, page 588, says:

"The receiver is entitled to compensation in priority to receiver's certificates."

Kerr, on Receivers (6th Ed.) page 250, citing several cases, says:

"The payment of the costs, charges, and expenses, including his remuneration, of a receiver, is not dependent on the sufficiency of the estate to bear all the costs. He is entitled to be paid without regard to the sufficiency of the estate to meet the claims upon it. Thus a receiver appointed over the assets of the company is entitled to be paid next after payment of the costs of realization, and even in priority to persons advancing money under an order of the court on the terms that repayment is to be made a first charge on the assets."

Many text-writers and many courts have said and held the same thing.

I think this motion should be denied, and that the receiver should be authorized to receive the moneys due from the city of New York, and deposit them under the order of the court in some bank or trust company where they will draw interest, and he should be authorized to pay therefrom the amounts that he was required to borrow for the completion of the contract and other administration expenses, and for such additional administration expenses as may be necessary to complete the contract, and perfect and collect the receivers' claims against the city for extra work, and that the balance should be held until the final accounting of the receiver.

Settle order upon notice.

ISRAELSON v. WILLIAMS.

(Supreme Court, Appellate Division, Second Department. February 11, 1915.) 1. INSURANCE (§ 103*)-INSURANCE BROKERS-LIABILITY.

A person who employed an insurance broker to procure a policy of insurance, and told him that there was other insurance on the property, had a right to rely on the broker's presumed obedience to his instructions, and was not negligent in failing to examine the policy when delivered, so as to discover that it prohibited other insurance.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.*]

2. INSURANCE (§ 103*)-INSURANCE BROKERS-LIABILITY.

A person who employed an insurance broker to procure a policy of insurance did not, by retaining the policy without complaint, waive his rights against the broker for his negligence in procuring a policy, which provided that it would be void if there was any other insurance on the property, where insured did not know that the policy contained such provision, as a claim of waiver must rest upon knowledge on the part of the person claimed to have waived.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.*]

3. INSURANCE (§ 103*)-INSURANCE BROKERS-LIABILITY,

Where an insurance broker, employed to procure a policy of insurance, and told that there was other insurance on the property, negligently procured a policy with a provision against other insurance, an action against the insurance company on the policy, and a discontinuance thereof For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

upon payment of a small amount to buy peace and without any recognition of liability, did not inure to the benefit of the broker, or relieve him of liability; he not having been the agent of the company, but of insured.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.*]

Appeal from Trial Term, Queens County.

Action by Isaac S. Israelson against Harry Pushae Williams. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

Frederick W. Ritter, of Long Island City (Emile E. Rathgeber, of Long Island City, on the brief), for appellant.

Adolph Feldblum, of Brooklyn, for respondent.

PER CURIAM. The defendant appeals from a judgment rendered against him in an action tried in Queens county. The trial came on before a jury. At the close of the plaintiff's case, both sides rested, and both made motions for a direction of a verdict, which was directed subject to the opinion of the court in favor of the plaintiff. Before a judgment was entered the case was reopened and further testimony taken, and the trial was continued before the court alone, which made findings and directed judgment for the plaintiff. Exceptions thereto were filed by the defendant.

The theory of the plaintiff's action is to recover damages for a breach of duty on the part of the defendant. The defendant was an insurance broker. The plaintiff's assignor, Wilson, owned a house at Eastport, Long Island. Wilson made application to Williams to negotiate a policy of fire insurance on the Eastport property, and instructed him that there was already insurance on the property. Williams, the defendant, procured a policy from the Concordia Fire Insurance Company, and delivered it to Wilson. This policy, however, contained a clause that it should be void if there was any other insurance on the property at the time it was issued, unless such additional insurance was permitted expressly. Wilson claims he did not know of this clause until after a fire took place and his house was destroyed. The plaintiff claims that the defendant became liable for the amount of the fire loss within the limits of the Concordia Insurance Company's policy, because Williams, the defendant, with full knowledge of the facts, negligently performed his duties as Wilson's agent in negotiating that policy. Williams, the defendant, was called as a witness by the plaintiff. Wilson's testimony is as to the application to Williams for a policy and what he directed him to do.

It appeared that Wilson brought suit on the policy against the Concordia Company, and that after some delay he discontinued this action, and his attorneys received $250 from that company for the discontinuance of the action. The questions then before the court were: (a) Whether Wilson had given the information as to other insurance to Williams; (b) whether Wilson had waived his rights against Wil

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

liams by failing to examine the policy delivered by Williams; (c) whether Wilson's action against the Concordia Insurance Company and its discontinuance on terms did not exonerate Williams from any liability to Wilson. The court decided against Williams as to the first two questions, and reopened the case as to the third. It made a memorandum explaining its views on the entire case, especially the third question. After the additional testimony was taken, it appeared that Williams was not the agent of the Concordia Company; that the Concordia Company had resisted liability; that the money paid for a discontinuance was not paid in recognition of any liability and no release was taken, but was paid to "buy peace," and, as the Concordia Company's counsel termed it on the witness stand, as "blood money," simply to cut off the expenses of numerous trips to Riverhead and the hiring of local counsel there. The court allowed a reduction of plaintiff's claim to the extent of the $250 received from the Concordia Company.

The defendant's contentions on this appeal are: (1) Wilson should have examined the policy when Williams gave it to him, and discovered the defect, and that his failure to do so was negligence per se, and exonerated Williams, his agent. (2) Wilson, having kept the policy without complaining of it or rejecting it, waived his rights against the defendant. There are other points raised, which are simply reiterations of these two in other forms of statement. Likewise it is urged that the judgment is against the evidence.

[1, 2] The appellant cites many cases where, in actions between the insured and the insurer, it was held that an acceptance of an insurance policy by the insured, without mutual mistake or fraud, bound the insured. Doubtless this contention is correct, if applicable to the case at bar. Here, however, the action is not between the insured and the insurer, but between the insured and his own agent for a breach of duty to fulfill instructions. The respondent cites a number of authorities to the effect that Wilson had the right to rely upon a presumed obedience to his instructions on the part of his skilled agent, and was not negligent in taking steps to investigate the matter. think the respondent is right on this point. Nor, as we think, do the facts show any waiver on the part of Wilson, for a claim of waiver must rest upon knowledge on the part of the person said to have waived, and that element is absent here.

We

[3] As to the weight of evidence, it is plain that the trial court gave great care to this case. The transaction between Wilson and the Concordia Company did not inure to the benefit of Williams. He was not the agent of that company, but Wilson's agent. The money was not paid in recognition of any liability.

Judgment affirmed, with costs.

O'BRIEN v. GILL et al.

(Supreme Court, Appellate Division, Second Department. February 5, 1915.) 1. QUIETING TITLE (§ 52*)-JUDGMENT-CONFORMITY TO PLEADINGS.

That the complaint in a statutory action under Code Civ. Proc. §§ 16381650, for the determination of claims to real property, contains allegations not necessary to such an action, and prays for relief in part inap propriate, does not prevent the court from awarding a judgment determining such claims, if the facts warrant it.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 99, 102, 103; Dec. Dig. § 52.*]

2. QUIETING TITLE (§ 23*)-POSSESSION OF PLAINTIFF ADVERSE POSSESSIONNECESSITY.

Under Code Civ. Proc. § 1638, providing that where a person has been for one year in possession of real property, claiming it in fee, for life, or for a term of years not less than 10, he may maintain an action against any other person to compel the determination of any claim adverse to that of plaintiff which the defendant makes, such action could not be maintained where plaintiff was in possession as a tenant under defendants, as, the action being statutory, all the conditions prescribed in the statute must be fulfilled, and plaintiff must have possession under a claim or color of title hostile to that of defendants.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 55, 56; Dec. Dig. § 23.*]

3. TRUSTS (§ 81*)-RESULTING TRUSTS-PAYMENT OF CONSIDERATION FOR CONVEYANCE TO ANOTHER.

Under 1 Rev. St. (1st Ed.) pt. 2, c. 1, tit. 2, § 51, providing that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no trust shall result in favor of the person by whom such payment shall be made, but that the title shall vest in the person named as the alienee in such conveyance, and section 53, providing that the provisions of section 51 shall not extend to cases where the alienee named in the conveyance shall have taken it as an absolute conveyance in his own name without the consent or knowledge of the person paying the consideration, where the purchasers of land were illiterate, and when they went to the office of the vendor's attorney for the purpose of procuring a deed were accompanied by their daughter, and for some reason her name was inserted as grantee without their knowledge or consent, a trust resulted in their favor.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 115-118; Dec. Dig. § 81.*]

4. APPEAL AND ERROR (§ 1175*)-REVERSAL-NECESSITY OF NEW TRIAL.

In an action for the determination of claims to real property, though the undisputed evidence showed that while the legal title was in plaintiff a trust had resulted in favor of defendants, judgment for defendants would not be directed, where it was possible that plaintiff was induced by the remarks of the trial justice to refrain from offering evidence to contradict that for defendants, especially where the facts upon which a judgment for defendant must be founded were not expressly designated as a counterclaim, and it was doubtful whether the counterclaim existed in favor of all of the defendants.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 45734587; Dec. Dig. § 1175.*]

Appeal from Special Term, Kings County.

Action by Catharine O'Brien against Ann Gill and others. From a judgment in favor of plaintiff, certain defendants appeal. Reversed, and new trial granted.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before JENKS, P. J., and BURR, THOMAS, RICH, and PUTNAM, JJ.

Eli J. Blair, of New York City, for appellants.

Cyrus V. Washburn, of New York City (John E. Ruston and Robert H. Koehler, both of New York City, on the brief), for respondent.

BURR, J. Plaintiff brings this action against Ann Gill and Daniel Gill, her parents, and Daniel Gill, Jr., her brother. The complaint alleges a conveyance to her in the latter part of the year 1890, by Mary A. Timony and Thomas K. Timony, of certain lands on the north side of Carroll street in the borough of Brooklyn; that in November, 1900, a deed was recorded in the Kings county register's office, purporting to have been executed by her, which conveyed said property to Ann Gill and Daniel Gill, and which deed was a forgery; that in March, 1913, Ann Gill and Daniel Gill, by a deed then executed, but not recorded, purported to convey said premises to Daniel Gill, Jr.; that the latter deed was without consideration; that plaintiff is in possession of said premises; and that such possession as defendants have is subject to plaintiff's superior right. The prayer for relief is that the alleged forged deed be canceled of record, that the deed to Daniel Gill, Jr., be declared null and void and canceled, and that

"the said defendants Ann Gill, Daniel Gill, her husband, and Daniel Gill, Jr., may be forever enjoined and restrained from asserting and claiming any right, title, lien, or easement in said premises or any part thereof by virtue or reason of the aforesaid deeds or any or either of them, that the plaintiff may be adjudged to be in lawful possession of said premises and be put în full possession thereof, and that the plaintiff may recover her costs."

Upon the trial of the action, plaintiff proved the execution of the deed to her by the former owners of the land, and defendants admitted that she was in possession, as a tenant, of a portion of a threefamily house which had been erected thereon. Plaintiff then rested. It subsequently appeared from defendants' evidence, which was uncontradicted, that plaintiff's possession was that of a tenant under defendants Ann Gill and Daniel Gill; that as such tenant she occupied the top floor of the building under an agreement to pay rent to them therefor; and that she had paid such rent in part. After trial of the issues, the learned court at Special Term made findings and gave judgment to the effect that plaintiff was the owner of and is seised in fee simple of said premises, that the defendants have no rights or interest therein, that the deeds referred to be canceled and annulled, and that said defendants be forever enjoined and restrained from asserting any right, title, lien, or easement in or to said premises, or any part thereof, by virtue or reason of the aforesaid deeds or any or either of them, that the plaintiff is in lawful possession of said premises, and is entitled to the possession of said premises as against all of the defendants herein.

[1, 2] At the threshold of the case, we are called upon to determine the nature of the action. The learned counsel for the respondent contends that it is brought simply to annul and cancel the forged deed. and the deed subsequently delivered by the grantees mentioned there