mise. They require proof. No presumption exists that the treasurer of the Jeavons Company was empowered to indorse notes payable to it. Jacobus v. Jamestown Mantel Co., 211 Ν. Υ. 154, 161, 105 N. E. 210. A swindler might use the name of the richest and most solid railroad or industrial corporation in the country as payee for the purpose of accomplishing fraud, but an unindorsed note payable to its order would vest a purchaser with no better title than that of a thief. Assuming that the rubber stamp on the back of defendant's note is proved to be that of the Jeavons Company, and the signature purporting to be that of J. H. Huston, its treasurer, is proved to have been physically affixed by him, the proof of indorsement by the payee is deficient until evidence is produced which shows that the treasurer was authorized by the corporation to indorse.

The judgments should be reversed, and a new trial granted, with costs to abide the event.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, and KELLOGG, JJ.,

concur.

Judgments reversed, etc.

(248 Ν. Υ. 145)

ANSORGE v. BELFER et al.

Court of Appeals of New York. May 1, 1928. 1. Boundaries 20 (4) Deed describing lands by lines of street did not include street, thereby precluding objection by purchaser based on rights in street.

Deed of conveyance, describing land by lines of street as "beginning at a point on easterly side of Beach 140th street," and as "running along easterly side of Beach 140th street," did not include street so that objection by purchaser to marketability of title on ground that it was subject to right of way granted to telephone company to maintain lines in streets was not well taken.

2. Evidence 5 (2)-Court cannot take judicial notice that mortgage, with unusual accelerative clauses, tendered by vendor, was standard one.

In action for specific performance of contract to purchase land, court cannot take judicial notice that mortgage, having unusual accelerative clauses, tendered by vendor, was standard one employed by title companies and conveyancers generally in city of New York, and that parties must have had this form in mind when contract was executed.

3. Estoppel 52-"Waiver" is voluntary relinquishment of known right.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Waiver.] 4. Vendor and purchaser 143-Purchaser's refusal to consent to adjournment to close title, where vendor's wife had not signed, was not waiver of right to object to title.

Where vendor and purchaser met at appointed time, and purchaser was ready to close title, but vendor's deed lacked his wife's signature, and purchaser refused to grant vendor's request to adjournment to evening or following morning, and rejected title, purchaser did not waive her rights to object to title by not raising objections on closing day, since discour

tesies and undue insistence on rights do not amount to waiver.

5. Vendor and purchaser 143-Where vendor, failing to obtain postponement of time for closing title so that wife could sign, tendered deed and demanded money that evening, and began action following day, purchaser could raise objections to title by answer.

Where vendor whose wife had not signed deed at time appointed for closing title, on failing to obtain postponement of time for closing,

did not notify purchaser that he would be ready

on following day to close title, so that purchaser would have had opportunity to object to title tendered, and vendor would have opportunity to cure objections, but instead tendered deed and demanded his money in evening on street, and began action for specific performance on following day, purchaser was put in position to raise her objections to title by answer, and compel vendor to meet them on trial.

6. Vendor and purchaser 134(2) -Vendor in specific performance suit could not compel purchaser to take land subject to mortgage with unusual accelerative clauses (Real Property Law, § 254, and § 258, Schedule M).

Vendor in specific performance suit could not compel purchaser to take real estate subject to mortgage tendered having unusual accelerative clauses, including clause known as Brundage clause, giving mortgagee right to declare mortgage due, if any change was made in Tax Law of state in law for taxation of mortgages, and other clauses, instead of statutory short form of mortgages under Real Property Law (Consol. Laws, c. 50), § 258, Schedule M, construed by section 254.

Appeal from Supreme Court, Appellate Division, Second Department.

Action for specific performance of contract to purchase real estate by M. Morton Ansorge against Elizabeth Belfer and another. Judgment of Special Term directing specific performance by defendant was modified, and, as modified, affirmed by Appellate Division (220 App. Div. 731, 221 N. Y. S. 786), and plaintiff and defendant named appeal. Judgment of Appellate Division reversed, and complaint

in accordance with opinion.

Julius Weiss and Herbert Pels, both of New York City, for plaintiff, appellant, and re spondent.

Charles J. Belfer and Julius S. Belfer, both of Brooklyn, for defendant, respondent, and appellant.

POUND, J. The action is for specific performance. Plaintiff agreed to sell, and defendant agreed to buy, lots in the borough of Queens known as lots 49 to 51 on Beach 140th street in block 61, according to a map of the property of the West Rockaway Land Company. The premises had a frontage of 60 feet and a depth of 100 feet. The purchase price was $10,000, payable $750 on the signing of the contract; $2,000 by a check left in escrow with the Bank of the Manhattan Company, "to be delivered at the closing of the title pursuant to the terms of the contract, if seller can deliver good and marketable title"; $2,250 in cash or certified check at the closing of the title: $3,750 by taking the premises subject to first mortgage for that amount at 6 per cent. per annum, and to have three years to run; the balance in a purchase-money mortgage. The date of the contract was August 7, 1925. The deed was to be delivered upon receipt of the payments, etc., at the of fice of J. P. O'Bierne, 132 Nassau street, New York City, at 2 p. m. on September 2, 1925. The check for $2,000 was left with the defendant the Bank of the Manhattan Company, which holds it subject to the direction of the court, and is not otherwise concerned with the merits of the litigation. The plaintiff was not the owner of the property at the time of making the contract, but was under contract to purchase it from McCoy, the record owner. Title was to be closed concurrently on both deals. On September 2, 1925, the parties met in O'Bierne's office. McCoy had then transferred title to plaintiff. Defendant was ready on her part to close title, but plaintiff's deed lacked his wife's signature. He suggested that all matters in connection with the title be passed upon, and that the signature of his wife could be obtained later in the day. Defendant rejected title, refused to grant plaintiff's request for an adjournment to the evening or the following morning, and left the office without further examining the title tendered by plaintiff. Plaintiff obtained his wife's signature to the deed, tendered it to defendant at Belle Harbor, where she lived, in the evening of the same day, and demanded his money. He did not tender evidence of title nor the purchasemoney mortgage. Defendant rejected the tender, suggesting that the matter be taken up with the lawyers in a businesslike way. On the following day plaintiff began this action.

one

The answer set up the defense that the title was defective, in that it was subject to a right of way granted by the West Rockaway Land Company to the New York & New Jersey Telephone Company to maintain its lines in the streets laid out on the map above referred to; also that the purchase-money mortgage executed by plaintiff to his grantor McCoy was not payable in three years, but was subject to certain unusual accelerative clauses; clause, known as the Brundage clause, which gave the mortgagee the right to declare the mortgage due, if any change was made in the Tax Law (Consol. Laws, c. 60) of the state in the law for the taxation of mortgages; another clause which permits the mortgagee to declare the whole principal sum due after default for 60 days after notice and demand in the payment of any assessment for local improvements payable in annual installments, notwithstanding such installment is not due and payable at the time of such notice and demand; another clause which provides that the whole principal sum shall become due at the option of the mortgagee, for failure of the owner to comply with the requirements of any department of the state or city of New York within 3 months after an order making such requirement has been issued by any state or city department; another clause which permits the mortgagee to declare the whole amount due, if the mortgagor shall assign the rents of the mortgaged premises without first obtaining the written consent of the mortgagee to such assignment, or upon the actual or threatened demolition, or removal of any building erected, or to be erected, on the premises; and another clause which permits the mortgagee to declare the whole amount due, if two fire insurance companies refuse to insure the property. Defendant demanded judgment for the return of $750 paid on the contract, with interest thereon and a vendee's lien therefor, with $250 counsel fee, and expenses of examination of title, and for judgment directing the defendant Bank of Manhattan Company to turn over the certified check for $2,000. The trial court granted judgment of specific performance as of the closing day. It held that the defendant, by not raising objections to the title on the closing day, had waived such objections. The Appellate Division unanimously affirmed, except that it eliminated from the judgment a provision for sale and deficiency judgment, and provided a time for compliance with the terms of the judgment. The trial court made a finding that the item for counsel fee and examination of title should be $195 instead of $250 as demanded. Both parties appealed to this court.

[1] The objection to the marketability of the title is not well taken. The deed of conveyance describes the lands by the lines of the street as "beginning at a point on the easterly side of Beach 140th street," and as "running along the easterly side of Beach 140th street," and does not include the street. It was held in Fossume v. Requa, 218 N. Y. 339, 342, 113 N. E. 330, that a telegraph or telephone franchise over land agreed to be conveyed free from incumbrances is an incumbrance of which the buyer may complain. But the easement in question does not affect the land to be conveyed. The street was necessarily excluded from the description. Van Winkle v. Van Winkle, 184 N. Y. 193, 203, 77 N. E. 33. It was not an incumbrance, and should have been disregarded.

[2] The acceleration clauses in the mortgage present another question. In Oppenheim v. McGovern, 115 App. Div. 135, 100 N. Y. S. 712; affd., 189 N. Y. 572, 82 Ν. Ε. 1130, the court held in a case involving the so-called Brundage clause that the defendant was entirely justified in refusing to take the property subject to the mortgage tendered. When the mortgage is not recorded, not even in existence at the time the contract was made, so that the purchaser then had no notice of its terms, he may refuse to accept a deed and take title to property subject thereto when he has contracted for a mortgage running absolutely for the period of 3 years, and when under the mortgage submitted the term thereof might be cut down to 3 months, 60 days, or 30 days by unusual clauses therein. The statutory short form of mortgages (Real Property Law [Consol. Laws, c. 50], § 258, Schedule M, construed by Real Property Law, § 254) contains usual covenants to accelerate the due date for default in the payment of installments of principal or interest, taxes or insurance. Such covenants are well understood, and may be implied as a part of the mortgage called for by the contract. The covenants in question are not included in the statute, and may not be implied, in the absence of proof of the intention of the parties. It is said that the mortgage tendered is a standard one employed by title companies and conveyancers generally in the city of New York, and that the parties must have had this form in mind when the contract was executed, but no evidence is offered to sustain this contention, and we cannot take judicial notice of it.

[3-5] We fail to see wherein the plaintiff has established any waiver of objections to the terms of the mortgage. Waiver has often been defined as the voluntary relinquishment of a known right. Clark v. West, 193 N. Y. 349, 360, 86 N. E. 1. Defendant's right at the time of closing was to have a deed executed by plaintiff and his wife conveying good marketable title to the property, subject to a mortgage for 3 years. She should have con

sented, when requested to a short postponement, even though the plaintiff was not instantly ready with complete performance on his part, but her refusal to consent was an assertion, not a waiver, of her rights. Discourtesies and undue insistence on rights do not amount to a waiver. Failing to obtain such postponement, the plaintiff should have proceeded in an orderly way and notified the defendant that he would be ready on the following day to close title. The defendant would then have had an opportunity to object to the title tendered, and the plaintiff would have had an opportunity to cure such objections. Harris v. Shorall, 230 N. Y. 343, 347, 130 Ν. Ε. 572. Instead, plaintiff chose to tender his deed and demand his money in the evening on the street, and to begin his action on the following day. Defendant was thus put in a position to raise her objections by answer, and compel plaintiff to meet them on the trial.

[6] Plaintiff is in no position to obtain equitable relief. He pleads performance, and he has not performed. The court has found waiver, and waiver is neither pleaded nor proved. Defendant by her answer made a good objection to the terms of the mortgage as above indicated. Plaintiff made no effort to meet the objection. He has had ample opportunity to cure the defect, if it is curable, and has failed.

The judgment of the Appellate Division should be reversed, with costs in all courts against plaintiff and in favor of defendant Belfer. Complaint dismissed, and judgment granted to appellant Belfer in accordance with opinion.

CARDOZO, C. J., and ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. CRANE, J., not voting.

Judgment accordingly.

(248 Ν. Υ. 152)

FIRMES v. MT. HOPE CEMETERY
ASS'N et al.

Court of Appeals of New York. May 1, 1928. 1. Cemeteries 5-"Proportional part of the surplus" relative to dividend payments in cemetery association means such part of total dividend as stockholder's shares bear to total shares issued (Laws 1879, с. 107).

In the provision in Laws 1879, c. 107, relative to interest to be paid on certificates of stock of cemetery association that holders of stock shall be entitled to claim and receive semiannually a dividend for their proportional part of the surplus or net receipts of the cemetery over and above current expenses, the expression "proportional part of the surplus" means such part of the total dividend as each stockholder's shares bear to the total shares issued.

2. Cemeteries 5-Trustees need not declare semiannual dividend on stock in cemetery association of whole sum divisible; dividend beIng discretionary (Laws 1879, c. 107).

Under Laws 1879, c. 107, the trustees need not declare a semiannual dividend to cemetery stockholders of the whole sum divisible, whatever it may be; the matter of such declaration being within the discretion of the cemetery trustees.

3. Cemeteries 5-Stockholders in cemetery association may claim dividends if, after deducting current expenses from total receipts, surplus remains (Laws 1879, c. 107; Laws 1894, с. 267).

Under Laws 1879, c. 107, stockholders in cemetery association may, in view of Laws 1894, c. 267, in lieu of interest, claim dividends if, after deducting all current expenses incurred by the trustees from the total receipts from all sources of the cemetery, there shall remain a surplus.

4. Cemeteries 5-On cemetery stock issued in 1888, trustees could declare dividends payable from receipts from lot sale if payment were from surplus or net receipts above "current expenses" (Laws 1879, c. 107; Laws 1894, с. 267).

Cemetery trustees could, under Laws 1879, c. 107, and Laws 1894, c. 267, and in view of Laws 1847, c. 133, Laws 1853, c. 122, and Laws 1860, с. 163, declare dividends on cemetery stock issued in 1888, such dividends to be paid from moneys received from sale of lots, if distribution of dividends from such sale was to be from entire surplus or net receipts of the corporation over and above current expenses, the term "current expenses" including those reasonably necessary for the improvement, embellishment, and preservation of the cemetery. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Current Expenses.]

294, 155 N. E. 580, a series of statutes relating to rural cemetery associations. We must endeavor to give a reasonable construction to somewhat conflicting provisions. The precise question before us is whether upon stock issued in 1888 the trustees may declare dividends to be paid from moneys received from the sale of lots.

Under chapter 133 of the Laws of 1847 and chapter 122 of the Laws of 1853, rural cemetery associations might acquire the land needed for their purposes in two ways. They might agree with the vendors that one-half or more of the proceeds of all sales of lots should be appropriated to the payment of the purchase price until all is paid. Any balance, received before or after such payment, is to be used solely to improve the cemetery and for incidental expenses. Obviously the agreement with the vendors is to be shown by some written document. Obviously, too, before a lot is or can be sold, some indebtedness must be incurred also for improvements, or such indebtedness may arise thereafter, and be similarly evidenced. But apparently these classes of indebtedness are to be paid from the balance remaining after the portion applicable to the payment of the purchase price has been met. It is said in chapter 163 of the Laws of 1860 that the evidence of any such indebtedness may take the form of certificates. But these certificates, representing, as they may, two classes of debts, payable from different funds, are to be kept in separate accounts and they are to be redeemed, the ones from the agreed half or more received from the sale of lots and the others from the balance.

The second method of purchasing land gives the vendor a speculative interest in the success of the association. The agreement may be that he is to receive in perpetuity a specific share, not exceeding half, of the gross

ance is to be used for improving the cemetery and for incidental expenses. However such an agreement is evidenced, it is not by such a certificate of indebtedness as is referred to in the act of 1860. So the act of 1853 is of no immediate concern.

In the case before us all certificates, if such existed, for the payment of the land purchased, have been paid and redeemed. There remained certificates for debts incurred in the administration of the cemetery. Their form does not appear. We may assume that they bore interest. Probably they provided for payment of the principal at some future time. Whether they did or not the defendant could not obligate itself to make payment at a fixed date. The only remedy of the certificate holder was an action in equity for an accounting and for the application to the payment thereof of the proceeds derived from the sale of lots. And not all the proceeds. Lot owners are also entitled to protection. The statute contemplates that such proceeds, so far as reasonably and currently necessary, shall first be applied "to the improvement, embellishment and preservation of such cemetery and for incidental expenses," and only any balance to the payment of certificates. True it says that all receipts shall be applied to the purposes quoted "and to no other purpose or object." But the Legislature, recognizing the existence of certificates of indebtedness, recognizes that in some way they are to be paid. This is made clear by chapter 108 of the Laws of 1879, which adds to this phrase the words "unless expressly authorized by law."

The certificate holders, therefore, held an obligation of the defendant enforceable in equity. They were entitled to resort for payment to a certain fund. In this condition of affairs came chapter 107 of the Laws of 1879. It permitted the certificates to be changed into certificates of stock. The certificates were to be canceled. No interest was thereafter to be paid, "but in lieu of interest the holders of said stock shall be entitled to claim and receive semiannually a dividend for their proportional part of the surplus or net receipts of the said cemetery, over and above current expenses."

[1, 2] The expression "proportional part of the surplus" should be fairly interpreted to mean such part of the total dividend as each stockholder's shares bear to the total shares issued. We can find no other reasonable meaning for it. But in spite of the words "claim and receive" the trustees need not declare a dividend semiannually of the whole sum divisible, whatever that sum may be. We refer to the general power of directors over the subject of dividends and say they have discretion in the matter.

[3] Then what of the expression "surplus or net receipts of the said cemetery, over and above current expenses"? The Legislature in a much later act (Laws 1894, c. 267) explains its meaning. Stockholders in lieu of interest, it says, may claim dividends "if, after de ducting all current expenses incurred by said trustees from the total receipts from all sources of said cemetery, there shall remain a surplus." This act speaks of a dividend agreed upon when the stock was issued. Perhaps such an agreement may be necessary thereafter. It was not required when the stock we have to consider was issued.

"surplus" is stated to be those receipts less current expenses. We define "current expenses" as including those reasonably necessary for the improvement, embellishment, and preservation of the cemetery.

If this is so, the decision reached below was right. It is admitted that the directors intend to distribute as dividends "the entire surplus or net receipts of the corporation, over and above current expenses." They may do so if they define "current expenses" as we have done. The answer, whose truth is admitted, says they do.

The judgment appealed from should be affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, KELLOGG, and O'BRIEN, JJ.,

concur.

Judgment affirmed.

(248 Ν. Υ. 157)

PEOPLE v. SAMPSELL.

Court of Appeals of New York. May 1, 1928. Municipal corporations 592 (2) -Ordinance prohibiting blocking of street railroad crossing by trains for more than three minutes held valid (Penal Law, § 1985).

Municipal ordinance prohibiting blocking of street railroad crossing by trains for more than three minutes held valid without regard to Penal Law (Consol. Laws, c. 40), § 1985, making it a misdemeanor for any officer or employer in charge of locomotive, train, or car to willfully obstruct in any form highway crossing for a longer period than five consecutive minutes.

Appeal from Chautauqua County Court. Roy O. Sampsell was convicted for violating section 3 of chapter 5 of the Dunkirk City Ordinances which prohibits the blocking of railroad crossing by trains for more than three minutes, and, from the judgment reversing the judgment of conviction in the Municipal Court of the city of Dunkirk, the State appeals by permission. Affirmed.

Glenn W. Woodin, Dist. Atty., of Dunkirk, for the People.

Edmund S. Brown and Harold J. Adams, both of Buffalo, for respondent.

PER CURIAM. We hold that the ordinance of the city of Dunkirk (Dunkirk City Ordinances, c. 5, § 3) is valid, and is not rendered unlawful by Penal Law (Consol. Laws, c. 40), § 1985.