cient sureties for the payment of any amount which the party filing such notice of the pendency of action, or any other party to the action claiming an interest or lien upon such real property may recover in the action, and will pay the judgment sought to be enforced against said real property, in the event that a final judgment shall be recovered therein and conditioned for the performance of such other terms as the court may direct, and that thereupon, and upon such other terms, if any, as the court shall deem equitable, an order be made cancelling such notice of record. The sum required to be paid into court or the amount of the undertaking, shall be at least the amount claimed by the plaintiff or the value of the property affected by the action or the interest of the party filing such notice therein, with interest and costs, and if the court allow an undertaking to be given, a copy thereof with notice of filing of the same, shall be served upon the attorney for the plaintiff and upon such other parties as the court may direct and notice of not less than two days of the justification of the sureties. Upon the deposit of the sum required into court, or if an undertaking is given, upon the approval of such undertaking by the court or a judge thereof and the compliance with such other terms as may have been imposed, the court may direct that the notice of pendency of action be cancelled of record by a particular clerk or by all the clerks with whom it is filed and recorded, which cancellation must be made by a note to that effect, on the margin of the record, referring to the order. Unless the order is entered in the same clerk's office, a certified copy thereof must be filed therein, before the notice is cancelled. After a notice of pendency of action has been cancelled as herein provided, neither the proceedings in the action, nor any judgment which may be rendered therein, shall affect the real property described in any notice of pendency which has been cancelled pursuant to the provisions of this section."

While the letter of the section might possibly suggest that by filing the lis pendens a party might acquire an interest in the property described in the notice superior to the rights of another under an unrecorded deed, nevertheless we do not think such was the purpose or object of the section of the Code in question. The precise question was under consideration, and fully and ably discussed, in the case of Lamont v. Cheshire, 65 N. Y. 30, where under a prior section of the Code, worded substantially like the present section of the Code of Civil Procedure above quoted, it was held the unrecorded deed gave title superior to that acquired by the lis pendens. In that case certain attachments were levied against real property by the filing of lis pendens, but prior to the filing of the notice the defendant had conveyed the property sought to be attached to a third party by deed, which, however, had not been recorded prior to the date of filing of the notice; but the court held that by filing the notice of pendency the attaching creditor did not thereby acquire a lien superior to the interest of the grantee under the unrecorded deed.

In view of this decision, I think the court should not here make any decision which would, in effect, avoid the conveyance from the defendant to Weiler; for he is not a party defendant, and is entitled to his day in court before his rights can be foreclosed and defeated.

[4] This, however, does not defeat the plaintiff's claim; for it is evident, under the circumstances of this case, full justice may be done to all parties. Although it is claimed that the full purchase price of the farm has been paid to the defendant, such, in fact, is not the case, because $2,100 of the purchase price, being the pro

ceeds of the mortgage given Quinlan by Weiler, has never in fact been paid her, so as to give her absolute control of the same, but is the subject of special deposit in the Wyoming Bank, to be held pending the outcome of this litigation. This fund may be proceeded against in lieu and substitution of the real property itself. This is an inherent power which a court of equity may exercise for the protection of the parties in interest.

A decree may be entered, declaring that the conveyance and transfers set forth in the complaint, made by Jeffrey Powers to the defendant herein, are and were fraudulent and void as against the creditors of the said Powers existing at the time of his death; that a receiver be appointed to receive and to hold for distribution, pursuant to the further orders and directions of this court, said fund of $2,100 and any accumulations thereon, deposited in the Wyoming Bank; that the defendant account for and pay over to such receiver the balance of the purchase price of said farm, to wit, the sum of $1,000, and also the value of the personal property transferred to her, which, for the purposes of this action, is stipulated at $125; that a referee be appointed in and by the decree to be entered herein, whose duty it shall be to ascertain and determine the amount and extent of any and all other claims owing to creditors of said decedent, and to that end he advertise for such creditors to appear before him and file proof of their respective claims against said estate; that the representatives of said estate and the defendant herein be at liberty to challenge such claims and litigate the same before such referee, and said defendant may present and have determined by said referee the amount of any claim or claims she may have against said estate. Said referee will also determine the amount of the funeral expenses of said decedent. The amount of the plaintiff's claim herein against said estate is hereby fixed and adjudged to be the sum of $304.50, with interest thereon from April 1, 1911. Said referee shall report to this court his findings and conclusions, to the end that such further judgment and decree may be made as shall be just and proper. Upon the coming in and confirmation of said report, let a further judgment be entered directing, first, the payment of the funeral expenses of said decedent; second, the costs and expenses of this action; and, next, the amount adjudged to be due and owing each creditor of said decedent in full, and, if there should remain insufficient to pay the same in full, then pro rata among the said creditors. The plaintiff is entitled to the costs of this action.

Let findings and judgment be drawn according to the views herein expressed.

In re BENSEL et al. (Catskill Aqueduct, Section No. 16). (Supreme Court, Appellate Division, Second Department. October 18, 1912.)

Appeal from Special Term, Westchester County.

In the matter of the application and petition of John A. Bensel and others to acquire real estate. From an order confirming the report of the commissioners of appraisal, the City of New York appeals. Affirmed.

Argued before HIRSCHBERG, BURR, THOMAS, CARR, and WOODWARD, JJ.

I. J. Beaudrias, of Yonkers, for appellant.

Leo A. Doran, of New York City (Joseph A. Flannery and Benjamin Trapnell, both of New York City, on the brief), for respond

ent.

PER CURIAM. Order affirmed, with $10 costs and disburse

ments.

BURR, J. (dissenting). The amount awarded in this case is so large that I seriously question the correctness of the finding of the commissioners respecting the same upon any theory. But while I might hesitate to vote for reversal upon the ground that the damages appeared too liberal, it seems to me that the result in this case which offends my sense of justice was due to the adoption of an erroneous theory on the part of the commissioners.

Claimant owned a large tract of land, over 90 acres in extent. A portion thereof, containing about 1114 acres, and designated on the damage map as parcel No. 1,136, was taken for the purposes of this improvement. Both actual and consequential damages are claimed; the former measured by the value per acre of the land taken, and the latter by the diminished value per acre of the land remaining by reason of such taking. Thus computed, upon the original hearing one of the experts called for the claimant fixed the damages at $61,248, and the other at $66,990. The experts called in behalf of plaintiff appraised the damages at $32,084 and $34,605, respectively. The award which was made, under the circumstances hereinafter disclosed, was $65,000. After the case had been closed and submitted to the commissioners of appraisal for the purpose of making their award, and before they had filed their report, claimant made application to open the case and submit further evidence. Against plaintiff's objection this application was granted, and claimant then offered testimony to the effect that underlying a portion of parcel No. 1,136 there was valuable sand, that the quantity of such sand was 73,330 cubic yards, and that such sand was worth 50 cents a cubic yard. The testimony of claimant's witnesses as to the quantity of sand was so vague and indefinite that it amounted to little more than pure speculation, and the value of the sand as testified to is in part at least affected by the as

sumption that this sand could be used as a fill for adjoining swale and lowland without any considerable cost of transportation. The extent of this lowland was not proved, but in the opinion of one of claimant's witnesses there was not more than sufficient sand in the strip taken to "bring all the low part up to a fair grade." Another witness called for the claimant testified that, if used only as an ordinary market could be found therefor, "it would take two or three years to take it out." After such testimony claimant's experts as to value were recalled, and each added to his former estimate the sum of $36,665. This difference would be exactly represented by 73,330 cubic yards of sand, valued at 50 cents a yard. Each of the witnesses testified that the only reason which they had for increasing their previous estimates was the evidence just referred to as to the presence of sand on the strip in question and the value thereof. The final estimate of one of claimant's witnesses was therefore $97,913, and of the other $103,665.

Although the items considered by the commissioners in fixing the amount of damage do not appear, in view of the fact that the award (the sum of $65,000) is nearly $4,000 larger than the original estimate of one of claimant's witnesses, and only about $2,000 less than the highest estimate given by any witness in his behalf in the first instance, it is scarcely conceivable that the commissioners did not take into account the evidence subsequently given, which had for its purpose establishing a higher rate of damages by reason of the presence of this sand. If that is so, it seems to me perfectly clear that the commissioners adopted an erroneous rule of damages in this case, and for that reason their report should not have been confirmed. After this additional evidence upon the part of claimant had been received, witnesses were called upon the part of the plaintiff, who testified (and their testimony is uncontradicted) that upon the residue of claimant's land there were also sand deposits nearly twice as great in extent as those estimated to be upon the land taken. If this is so, then the sand upon the land taken had no special value as fill for adjoining lowlands, since claimant could use what still remained to him for that purpose. While the exact amount of lowland is not shown, there is no suggestion that the sand on claimant's remaining land would not be amply sufficient for that purpose. This was followed by evidence that through the ordinary channels in the last 25 years there had been a market in that neighborhood for only about 4,600 yards of sand. Under the circumstances here disclosed, and following the well-established rule, when part only of a tract is taken and both actual and consequential damages are claimed, the commissioners should have limited the proof to the value of the entire tract, taking into consideration, not only the acreage thereof, but the increased value, if any, by reason of a valuable deposit thereon, and then the value of the residue after deducting the strip taken, such value to be computed in the same manner.

Because this rule was not adopted and followed, I think the or

der confirming the commissioners' report should be reversed, and a rehearing ordered before the same or other commissioners to be appointed.

THOMAS, J., concurs.

PEARSON et al. v. LIBERTY AVE. THEATER CO. et al.

(Supreme Court, Appellate Division, Second Department. October 11, 1912.) CORPORATIONS (§ 432*)-PRESIDENT-AUTHORITY.

The president of a theater company is presumed to have been author ized to buy fittings for the theater, where they were placed therein and adapted thereto, and pass to the company's lessee.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.*] ・・

Burr, J., dissenting in part.

Appeal from Trial Term, Kings County.

Action by John F. Pearson and another against the Liberty Avenue Theater Company and others. Judgment dismissing the complaint, and plaintiffs appeal. Affirmed as to defendants A. H. Woods Productions Company and another, and reversed, and new trial granted, as to defendant Liberty Avenue Theater Company. Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ.

Clarence B. Campbell, of New York City, for appellants.
Mortimer Fishel, of New York City, for respondents.

THOMAS, J. The action is for goods and services in installing them in the Liberty Avenue Theater. Woods was president of each of the other defendants, and as president of the Liberty Avenue Theater Company made a parol contract for the goods and confirmed it by letter, and the goods were placed in the theater owned by the Liberty Avenue Theater Company, and the deliveries were substantially completed before the A. H. Woods Productions Company took possession of it by lease, which, as its counsel concedes, was about February 7, 1910. While the counsel for the Liberty Company did not join in the concession, he did not dissent from it; but it is unfortunate that the lease was not produced, as he suggested.

The complaint was as to such defendant dismissed, upon the ground that no authority was given to Woods to make the contract. But he did make it for his principal. The goods were delivered pursuant to his order, and passed to his principal's lessee. If the president of a corporation buys fittings for its place of business, and they are placed therein and adapted thereto, and pass to its lessee, the principal's conduct indicates that its president acted presumptively within the limits of his powers, inasmuch as

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