Second Department, October, 1911. [Vol. 146. to walk across the street diagonally facing the car; that the car came forward running at about eight miles an hour, sounding no warnings, and that the child had stepped over the first rail when she was hit by the fender, and that the car, then one hundred feet from Twentieth street, did not stop until it had reached the latter street, and then only because the trolley pole had in some manner been removed from the wire. It is undoubtedly true, as suggested, that in the case of adults there is no obligation on the part of the motorman to slacken his speed or sound an alarm until the danger of a collision is apparent (Jackson v. Union R. Co., 77 App. Div. 161; Kappus v. Metropolitan St. R. Co., 82 id. 13; Barney v. Met. St. R. Co., 94 id. 388), but it cannot be that this is the rule to be applied in the case of an infant of five years of age, who is upon the street alone, and who is in a position to be seen by the motorman, no vehicles obstructing the way. Children of this tender age are not, as a matter of law, to be charged with that degree of judgment and care which would be required of men and women of mature years, and it cannot be said, as a matter of law, that a motorman is justified in refraining from reducing the speed of his car or giving warning until the collision is imminent. It is the duty of the motorman to operate his car with ordinary care, having reference to the dangers to be apprehended, and every man of ordinary intelligence knows that children of tender years may reasonably be expected to do many things which would not be regarded as prudent on the part of older people, and the jury might have found, in this case, that the defendant's motorman owed the duty of giving warning and of stopping his car to avoid the accident. Nor do I think it could be said as a matter of law that the parents of this child, or those charged with her care, were guilty of contributory negligence. The evidence discloses that the family lived in a flat, one floor above the street; that the mother was ill and the children were in the immediate charge of the mother's sister, who appears to have been of sufficient age to do the work of the household, and that the sister left the children in the kitchen of the home, telling them that she was going to a store to get food for the evening meal, and directing them to stay there and play until she returned home. App. Div.] Second Department, October, 1911. Just how the child got out and away from the other children does not appear, but the case is certainly not devoid of competent evidence of some degree of care, and the question was one for the jury, not for the court. The judgment appealed from should be reversed and a new trial granted. HIRSCHBERG, J., concurred; JENKS, P. J., concurred in result on the ground that point I of respondent's points, now relied upon, was not presented in the motion to dismiss; BURR and RICH, JJ., dissented. Judgment reversed and new trial granted, costs to abide the event. JOSIAH B. TISDALE, Respondent, v. WILLIAM J. MOORE and SARAH B. MOORE, Appellants. Second Department, October 6, 1911. decision — pleading - amendment by order of court – service. No appeal lies from the "decision" of a court; the appeal must be from a judgment or order. Where an amendment of a complaint is made by order of the court the order should direct that the proposed pleading be served, or stand as the new pleading in the case, and the party will be confined to the pleading proposed by his motion papers. Compliance with the rule requiring a copy of the proposed pleading to be served with the motion papers, supplemented by the order that the proposed amended complaint supersede the original complaint, is sufficient service upon the defendant. APPEAL by the defendants, William J. Moore and another, from a decision of Justice MCLAUGHLIN of the Municipal Court, first district of the borough of Queens, rendered on the 21st day of July, 1910. Anthony Darmstadt, for the appellants. WOODWARD, J.: Second Department, October, 1911. [Vol. 146. The notice of appeal in this case is "that the defendants herein, hereby appeal to the Appellate Division of the Supreme Court, in and for the Second Judicial Department from the decision of Mr. Justice McLAUGHLIN, dated July 21st, 1910, denying the motion of the defendants to open the default on the judgment entered herein in favor of the plaintiff and against the defendants for the sum of four hundred seventy-nine and 5 ($479.65) dollars, and the defendants appeal from each and every part of said decision." 65 * * * We know of no provision of law which justifies an appeal from a decision of the Municipal or any other court; an appeal must be from a judgment or order. Even the undertaking on appeal recites that "Whereas, on the Twenty-first day of July, 1910, a decision was made and entered in the above-entitled action denying a motion of the defendants to open the default on the judgment heretofore entered and the said defendants feeling aggrieved thereby, and having appealed therefrom," etc. The reasoning of the court in Starr v. Silverman (25 Misc. Rep. 784) is applicable to the present situation, and justifies a dismissal of the appeal. * * * Upon the merits we are of the opinion that the defendants. have failed to show any substantial reason for opening the default. The plaintiff appears to have been entirely reasonable in granting extensions of time; the amended complaint, a copy of which must have been served with the moving papers (Stern v. Knapp, 52 N. Y. Super. Ct. 14), was regularly in the hands of the defendants, for the order provided that "said motion be granted and that the proposed amended complaint, filed herein, supersede the complaint already filed in this action," so that the suggestion of the defendants that they have never been served with the complaint in this action is untenable. The rule is, where the amendment of a complaint is made by order of the court, that the order should direct that the proposed pleading should be served, or should stand as the new pleading in the case, and the party will be confined to the pleading proposed by his motion papers. (1 Rumsey Pr. [1st ed.] 367, and authority there cited.) The rule requiring a copy of the proposed pleadings to be served with the motion App. Div.] Second Department, October, 1911. papers, supplemented by the order that the proposed amended complaint supersede the original complaint, is certainly sufficient service, and the defendants not having shown any sufficient reason for granting a motion to open a default the decision of the court below is proper. The appeal should be dismissed, with costs. JENKS, P. J., THOMAS, CARR and RICH, JJ., concurred. Appeal dismissed, with costs. JACOB ABRAHAMS, Respondent, v. DAVIS BERKOWITZ and Others, Respondents. In the Matter of the Application of BUILDERS' MORTGAGE COMPANY, Appellant, for an Order Directing the Receiver to Pay over the Rents of the Mortgaged Premises. Second Department, October 13, 1911. Mortgage receiver appointed at instance of junior mortgagee - lien on rents collected superior to that of senior mortgage. The appointment of a receiver at the instance and for the benefit of a junior mortgagee operates to create a specific lien upon the rents collected by the receiver and to give him to that extent a preference over a senior mortgagee who subsequently brings a suit of foreclosure. This is true although the prior mortgage contains a clause that on default of the mortgagor the mortgagee may enter and take possession of the premises, let the same, receive the rents and profits to apply upon the debt and that the rents and profits are in such event assigned to the mortgagee. Such assignment of rents relates only to those accruing after the mortgagee makes entry and takes possession of the premises. APPEAL by the petitioner, the Builders' Mortgage Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of January, 1911, denying the petitioner's motion to compel Francis E. Carberry, receiver of the rents and profits of the mortgaged premises, to pay over to the petitioner moneys collected by him as such receiver. Henry Escher, Jr. [Lyttleton Fox with him on the brief], for the appellant. Second Department, October, 1911. Franklin Taylor, for the plaintiff, respondent. [Vol. 146. Herman M. Schaap, for the judgment creditor, Michae Cohen & Co. Charles J. Belfer, for the judgment creditor, Gustave Rader. HIRSCHBERG, J.: The question presented by this appeal is whether the holder of a first mortgage upon real estate may compel a receiver, appointed in an action brought to foreclose a subsequent mortgage, to pay over rents collected by him under such appointment to the first mortgagee. The action is brought for the foreclosure of the subsequent mortgage, and the petitioner, the first mortgagee, is not a party to the suit. Its bond and mortgage were executed on June 29, 1907, and the mortgage recorded July 1, 1907. The plaintiff's, the second, bond and mortgage were executed July 17, 1907, and the mortgage was recorded that day. On February 24, 1908, suit was brought to foreclose the first mortgage, and on March 24, 1909, while such suit was pending, the present action was brought for the foreclosure of the second mortgage. In this action Francis E. Carberry was duly appointed receiver of the rents, issues and profits of the mortgaged premises, he having been previously appointed receiver of certain judgment creditors of the mortgagor. The receiver having collected certain rents, the appellant, as first mortgagee, applied for an order compelling him to pay over to the appellant the amount of the rents so collected; and the appeal is from an order denying the motion. The sole question considered by the court at Special Term (70 Misc. Rep. 319), and the only question which will be considered on this appeal, is as to the right of the appellant to the relief sought, the respective claims of the judgment creditors and of the second mortgagee being reserved at the Special Term for future consideration. It seems to me quite clear that the order should be affirmed. It has been the settled law in this State that the appointment of a receiver at the instance and for the benefit of the junior incumbrancer operates to create a specific lien upon the rents and to give him to that extent a preference over the first gen |