Supreme Court, January, 1915. or [Vol. 88. ment is, however, free to propose the salary which, taking into consideration the condition of the office and the qualifications of a particular employee, he deems to be just. It is not claimed in the case at bar, for instance, that the borough president could not have proposed in his budget for the year 1914 that the applicant receive for that year a salary of $1,800 $1,900 or $2,000, and the precise question now before the court is whether the president of the borough had the power, similarly, to make reduction during the fiscal year. In challenging such power the burden is upon the applicant to point to some inhibition which has been disregarded; an inhibition, it must be remembered, which would derogate the common-law right to contract freely. Only upon establishing a clear legal right can he expect a writ of mandamus. People ex rel. Ajas v. Board of Education, 104 App. Div. 162. If the method provided in the charter for adjusting salaries has thus far been correctly interpreted by the court, the applicant cannot claim that the successive official acts which resulted in regulating the salary of his grade at $2,100 for the year 1904 entitled him to receive, or forced the head of department to allow, that amount. Such official action determined only that the applicant could be paid as much as $2,100. Neither the board of estimate nor the board of aldermen did more by their action than authorize the head of department to pay to the applicant $2,100 as a maximum salary. Even after the return of the budget, duly approved, the head of the department was still at liberty to give the applicant a lower salary. If, between maximum and minimum, the head of department could, at the commencement of the fiscal year, in his discretion, have chosen the amount he would allow for the year, why, during the year, could he not, in his discretion, acting Misc.] Supreme Court, January, 1915. bona fide, reduce the amount? This question addresses itself not to the court, but to the applicant, and his answer must cite some direct or implied statutory prohibition. No such prohibition has been indicated. He has not been removed nor has his office been abolished; therefore, although he is a veteran fireman, he may not invoke section 21 of the Civil Service Law. He is not an honorably discharged soldier, sailor or marine. If there be in "the whole broad scope," which his counsel emphasizes, " of the Civil Service Law" any provision intended to protect the applicant, he has not pointed it out. Respecting the issue to be decided here, to wit, the power to reduce a salary pending the year, he has shown no privilege, exception or exemption. In Davison v. Williams, N. Y. L. J., Dec. 1, 1914, where a veteran fireman sought a preference, Cardozo, J., writing for the court, says: "To make out the right to such a preference an employee must be able to put his finger upon the precise provision of the statute which secures it to him. This the relator cannot do." Here the same requirement confronts the applicant. In the absence of any suggestion upon the record that the reduction of the applicant's salary was prompted by improper motive, or was contrived to trick him or to circumvent the law, the court will not interfere with the fair exercise of an unimpeached power. The application for a peremptory writ of mandamus is denied, with costs. Application denied, with costs. Supreme Court, January, 1915. [Vol. 88. LUKE ELDERT, Plaintiff, v. CROSS COUNTRY RAILROAD COMPANY et al., Defendants. (Supreme Court, Kings Special Term, January, 1915.) Jurisdiction appeal when waived. Real Property Law-object of Torrens land title registration law — action to register title- who named as party defendants - defective examiner's certificate - when motion to vacate summons granted. Jurisdiction as affecting the subject matter of an action may be inquired into at any stage of the proceeding, and an objection that defendants by appearing and demurring to the complaint have waived the question of jurisdiction is untenable. Where on appeal from an order disposing of a demurrer to the complaint the question of the jurisdiction of the court below over the subject matter of the action was not before the appellate court, its judgment passing upon the sufficiency of the complaint is not a bar to a motion which raises the question of jurisdiction. The object of the Torrens land title registration law (Real Property Law, art. XII, as amended in 1910) is to register good titles and not to cure bad ones, and in an action brought under said statute to register a title the court is not justified on relying on the conclusions of the official examiner but is bound to carefully and critically examine his certificate, the abstract and the accompanying affidavits and determine not only that the plaintiff appears to have a title free from reasonable doubt but that every person who might have any right or interest in the premises or lien thereon is specifically named as a party defendant. Where the official examiner's certificate is so defective and questionable as to cast doubt and suspicion on the title of plaintiff in that though it appeared thereby that there were no conveyances passing the interest of persons once owners of the land it did not appear from said certificate that in a partition suit infant parties defendant had been duly served, the court is without jurisdiction to register the title, and a motion to vacate the original order and to set aside the summons, notice of object of action and all subsequent proceedings will be granted. Misc.] Supreme Court, January, 1915. MOTION to vacate original order and motion to set aside summons, notice of object of action and all subsequent proceedings. Gilbert Ray Hawes, for plaintiff. White & Wait, for defendants. MANNING, J. This action is brought by the plaintiff to register a title to real estate under the provisions of what is known as the Torrens land title registration law, article XII of the Real Property Law, as amended by chapter 627 of the Laws of 1910. The suit was commenced in August, 1913, and is still untried; in fact owing to various motions concerning the sufficiency of the pleadings the issue is not yet joined. The defendants Meeker and Streeter, as executors of the last will and testament of Peter Wyckoff, deceased, whose time to answer the second amended complaint has not yet expired, now move the court to vacate the original order directing that the action be commenced and in the same motion seek to set aside the summons, notice of object of action, and all subsequent proceedings herein, upon the ground that the court at Special Term never acquired jurisdiction to order said action to be commenced, and that such order, summons, and all subsequent proceedings are void. The jurisdictional question is raised by the alleged insufficiency of the official examiner's certificate of title and the other papers before the court at the time the order for the commencement of the action was signed. Jurisdiction as affecting the subject matter of an action may be inquired into at any stage of the proceeding, and hence, the objection made by the plaintiff that the defendants by appearing and demur Supreme Court, January, 1915. [Vol. 88. ring to the complaint have waived the jurisdictional question is untenable, so the present motion is properly before the court, and the defendants are entitled to a ruling thereon. The plaintiff further contends that the Appellate Division in disposing of a demurrer, heretofore interposed by the defendants, passed upon the sufficiency of the complaint as a whole and that therefore this motion should not be entertained. As to this objection it appears from the record that the questions raised by the present motion were not before the appellate court upon the argument of the demurrer and consequently the decision is not a bar to the present proceeding. In the present motion lack of jurisdiction is asserted owing to certain defects and infirmities alleged to exist in the official examiner's certificate of title and other papers before the court at the time the original order was made, and the defendant contends that so far as the law of the case is concerned the facts are almost identical with those determined in the case of Partenfelder v. People, 157 App. Div. 462; affd., 211 N. Y. 355. In that case the principle was laid down that at the commencement of an action for the registration of a title to real property the court is not justified in relying upon the conclusions of the official examiner but is bound to carefully and critically examine the certificate, the abstract and the accompanying affidavits and to see that, assuming all the facts therein stated (as distinguished from mere conclusions, inferences and opinions) to be true, not only does the applicant appear to have a title free from reasonable doubt, but that every person who might have any right or interest thereon, or lien thereon, is specifically named as a party defendant, if such name is known or can be |