Appeal from trial term. Action by Henry M. Whitbeck against the Atlantic-Avenue Railroad Company, for injuries sustained by plaintiff while a passenger on defendant's car. The question at folio 31, referred to in the opinion, was as follows: A witness, having been asked if the car on which plaintiff was riding was striving with another car, as to which should pass a crossing first, was asked whether he had ever seen races of that kind. An objection to the question was sustained. Judgment for defendant, and plaintiff appeals. Argued before CLEMENT, C. J., and VAN WYCK, J. J. W. Sanderson, for appellant. B. F. Tracy, for respondent. PER CURIAM. We have examined the record in this case, and find no error. The question of contributory negligence of the plaintiff, and negligence of the employes of the defendant, were properly submitted to the jury, and no exception was taken by the appellant. The objection to the question at folio 31 was properly sustained. What took place on other occasions was immaterial to the issue in this case. The judgment and order denying new trial must be affirmed, with costs. BROWN et al. v. RECKNAGEL et al. (Superior Court of New York City, General Term. January 7, 1889.) 1. PRINCIPAL AND AGENT-PAYMENT TO AGENT-BOOK ENTRIES. In an action for services performed by plaintiffs' decedent, the question was as to whether various sums of money paid by defendants to one M. were paid to him, as contended by defendants, as decedent's agent, to be deducted from the amount due decedent for his services, or whether such sums were paid to M. on his individual responsibility. Held, that entries made in the books of defendants, charging the sums paid to M. to decedent, and which were brought out on cross-examination of M. by plaintiffs, were not conclusive in favor of defendants. 2. SAME-Verdict. In such case, where the sums paid by defendants were about equal to the amount of plaintiffs' claim, a verdict for about one-half that amount will not be regarded as inconsistent and illogical where such verdict is rendered under an instruction, not excepted to, to the effect that if the jury should find that any one of the various payments was meant to be on account of the decedent, and others were made specially to M. himself, then they should find accordingly. Appeal from jury term. Action by Robert Brown and Phoebe A. Grapel, as administrators of Gerhard Henry Koop, against Carl L. Recknagel and Rudolph Pagenstecher. On the trial it was developed on the cross-examination by plaintiffs of one Manning that certain sums of money paid to Manning by the defendants, and which the latter claimed to have made on account of Koop, were charged on defendants' books to Koop. Judgment was given for plaintiffs, and defendants appeal. Argued before SEDGWICK, C. J., and FREEDMAN and INGRAHAM, JJ. Seward, Da Costa & Guthrie, for appellants. Henry G. Atwater, for respondents. FREEDMAN, J. This action was brought by the plaintiffs to recover $831.67 for commissions earned by their intestate, Gerhard Henry Koop, under a certain contract with the defendants for the prosecution and collection of certain claims of the defendants. The defendants, at the trial, insisted that Koop had done a large part of the work necessary to be done through an attorney, Jerome F. Manning; that Koop had authorized Manning to collect from the defendants money to be used in the prosecution of the claims under an agreement that the amounts so advanced should be deducted from the amount of the commissions to be earned by Koop; and that pursuant to such authority Manning had made such an agreement with the defendants, and upon the faith of such agreement the defendants had paid to Manning various sums of money, amounting in the aggregate to about $750. The substantial controversy at the trial was as to whether the defendants had paid these sums on Koop's account or on the individual responsibility of Manning. The only direct evidence adduced on this point by the defense was the testimony of Manning. He was not only impeached, but the force of his testimony was weakened by the fact, among other things, that at one time he had given to the defendants his individual note for one of the sums so obtained, and that none of the moneys had been paid over to Koop. The entries on the books of the defendants, which got into the case on the cross-examination of Manning, were not conclusive. The issue was submitted to the jury, who found a verdict for the plaintiffs for $400. The defendants now claim that this verdict is inconsistent and illogical, and therefore contrary to the evidence. In submitting the issue above referred to to the jury, the trial judge, among other things, charged as follows, viz.: "If you find that there is any reasonable distinction which ought to be applied between these various payments, that is to say, that there is evidence before you that one was meant to be a payment on account of Mr. Koop, and another made specially to Mr. Manning himself, you will treat the account accordingly as you, as merchants, understand. On the other hand, if you think that they were all covered by the same general idea, you will find accordingly." To this part of the charge no exception was taken, although the defendants did except to a prior part of the charge, which left it for the jury to say whether the money was advanced to Manning on his own individual responsibility. Under this instruction the jury discriminated, and the result of their discrimination is not to be set aside solely for the reason that it is not apparent how they arrived at the result. Suffice it to say that under the whole charge and upon the whole case no sufficient reason appears why the verdict should be set aside. There was no error calling for reversal in the admission or rejection of evidence, or in the charge as delivered, and none of the exceptions taken are tenable. The judgment and order should be affirmed, with costs. All concur. PEOPLE ex rel. ULRICH v. BOARD OF EDUCATION et al. 1. SCHOOLS AND SCHOOL-DISTRICTS-ADMISSION OF PUPIL-MANDAMUS. Before mandamus will lie to compel the admission of relator's child to a ward school in New York city, his exclusion having been caused, as alleged, by a violation of a rule of the board of education by the principal, relator must appeal from the principal's decision to the board of trustees of the ward, and thence to the board of education. 2. SAME-READMISSION AFTER GRADUATION. It appearing that the child had been graduated from the primary department; that he had ceased to be a member thereof, and that there is no room to seat him, -his readmission to that department will not be compelled. At chambers. On application for mandamus. Application by the people ex rel. Charles Ulrich for mandamus against the board of education of the city of New York, the school trustees of the TwentySecond ward, Matthew J. Elgas, and Julia M. Elliott, to compel the readmission of relator's son to the primary department of school No. 69, of which defendant Elliott was principal. Defendant Elgas was principal of the grammar department of said school, and refused to admit the boy into that department, on the ground that he was not qualified. He then went back to the primary department, and was refused admission on the ground that he had gone through that department and been dismissed to make room for others. H. T. Marston, for relator. Henry Parsons, for defendant Elliott. FREEDMAN, J. The relator did not exhaust his remedy before applying for a writ of mandamus. If, as he claims, the principal of the grammar school was guilty of a violation of a rule of the board of education, the relator should have appealed from the principal's decision to the board of trustees, and from that board to the board of education. In People ex rel. Margaret McKenna v. Adeline G. Kelly, which involved the same point, Judge BOOKSTAVER came to the same conclusion, and I entirely agree with him upon this point. The relator also failed to make out a case to compel his readmission into the primary department, for the uncontroverted facts show that he graduated out of it; that he ceased to be a member; and that there is at present no room to seat him. The foregoing views render it unnecessary to pass upon the further objection that the present application is not made by a guardian ad litem. Application denied. IRVING V. CAMPBELL. (Superior Court of New York City, General Term. October 25, 1888.) 1. DEED-PROOF-CERTIFICATE-RESIDENCE OF WITNESSES. 1 Rev. St. N. Y. p. 758, § 12, requires that when a deed is proved by a subscribing witness, he shall state his own place of residence, and that he knew the person who executed the conveyance; and section 15 provides that the officer taking the acknowledgment shall indorse on the conveyance a certificate, signed by himself, setting forth the names of the witnesses, and their places of residence. Held, that the omission to state the residence of the witness in the officer's certificate was unsubstantial, the substantial thing being that the officer shall be satisfied that the execution of the deed is the act of the person described in and who executed it; and, in order to be satisfied of the identity of the subscribing witness, it is not absolutely necessary that the officer should know his residence. 2. SAME-TECHNICAL OBJECTIONS-RECORD OF FORMER DEED. The subscribing witness had formerly owned the property named in the deed, and had conveyed it to the grantor in the deed sought to be proved, by a deed of record in which he was described as of the city and county of New York, and his acknowledgment of that deed was taken by the same officer before whom he afterwards appeared to testify to the execution of the deed involved. Held that, as these facts appeared of record in the register's office, the objection to the title for failure to certify the subscribing witness' place of residence must be regarded as technical, and of no effect. 3. SAME-LOST DEED-SPECIFIC PERFORMANCE. In a suit for specific performance, plaintiff's title was objected to on the ground that a deed which was lost had not been properly proved for record by the subscribing witness. The evidence showed that the vendor in the lost deed had a good title, and had delivered possession to his vendee, which possession has since continued undisturbed; that the title has never been questioned by anybody; and the attesting witness of the lost deed testified to its execution. Held, that the existence and quality of the lost deed, though unrecorded, could be proved by parol, and the evidence showed that plaintiff's title was good. 4. EQUITY-REFORMATION OF DEED-PARTIES-HEIRS OF REMAINDER-MAN. A deed of trust granted the premises to M., as trustee to receive the rents for the use of E. for life, and after her death to convey to I., subject to a power in the trustee to sell the premises when requested by E., for the purpose of converting them into money; the proceeds to be held in trust as a substitute trust fund, and the income therefrom to be applied to the use of E. for life, with remainder to I. Held, that the heirs of I., if they took at all, would not take as purchasers, but by descent, and an action to reform the trust deed could be brought without joining them as parties. 5. DOWER-CONVEYANCE BY WIFE-NON-JOINDER OF HUSBAND. A wife may, for a valuable consideration, convey to her husband's grantee her right of dower in premises which her husband, J., had formerly conveyed, without her husband joining in the deed. Appeal from judgment on report of referee. Action by Mary Irving, trustee, against James J. Campbell, to compel the specific performance by the defendant, as vendee, of a contract for the sale of certain land in New York city. August 17, 1861, John Wharton and wife conveyed the property in question to John R. Anderton, by deed duly acknowledged and recorded, and set out in plaintiff's complaint. John R. Anderton conveyed to Gideon J. Tucker, surrogate of the city of New York, March 22, 1869. June 22, 1870, Gideon J. Tucker conveyed to Thomas Lawrence, but his wife did not join in the deed. July 5, 1870, however, she conveyed her right to Thomas Lawrence, Tucker's grantee, by a separate instrument, duly acknowledged and recorded. Thomas Lawrence, unmarried, conveyed to Eliza Irving, November 23, 1871, by a deed executed in the presence of Gideon J. Tucker, who, as subscribing witness, proved the deed in the following form: "State of New York, City and County of New York-ss.: On the 23d day of November, in the year one thousand eight hundred and seventyone, before me personally came Gideon J. Tucker, to me personally known, the subscribing witness to the foregoing instrument, who, being by me duly sworn, did depose and say that he knew Thomas Lawrence, in the city of New York, to be the individual described in and who executed the foregoing instrument, and who acknowledged that he executed the same to the said Tucker; that he saw said Thomas Lawrence execute and deliver the same, and that thereupon he, the said Tucker, became a subscribing witness thereto. ARNOLD A. RENSON, Notary Public, C. & C. of N. Y." It was recorded in the office of the register of the city and county of New York on the same day, as appears by the following certificate attached to tlie deed: "“OFFICE OF THE REGISTER OF DEEDS, ETC., CITY AND COUNTY OF NEW YORK. I have compared the annexed copy with an instrument recorded in this office on the 23d day of November, A. D. 1871, at 3 o'clock 15 minutes P. M., in Liber 1,306 of Conveyances, page 66, and certify the same to be a correct transcript therefrom, and of the whole of said instrument. In testimony whereof I have hereunto subscribed my name and affixed my official seal this 18th day of August, 1875. [L. S.] PATRICK H. JONES, Register." Eliza Irving married George W. Jonas. In 1875 she and her husband executed a deed of trust of the property to Mary Irving, as trustee to receive the rents and profits, and to apply the same to the use of Eliza Jonas for her life, and to convey the premises after her death in fee to Irving Emmons, subject to a power in trust to be vested in said trustee to sell and convey the said real estate, or any part thereof, absolute in fee, whenever thereto requested in writing by the said Eliza Jonas, for the purpose of converting the same into money or its equivalent, and thereafter the said trustee to hold in trust the net proceeds of said sales as a substitute trust fund, in lieu of the said real estate so sold, and to invest the same, and to receive the income therefrom, and apply the same to the use of Eliza Jonas for her life, with remainder to said Irving Emmons; the said Eliza Jonas to have the privilege to personally occupy said real estate until sold. There being some doubt as to the trustee's right to sell under the trust deed, an action was brought by George W. Jonas, Eliza Jonas, and Irving Emmons, as plaintiffs, against Mary Irving, as trustee, defendant, in the New York superior court, in which there was a judgment reforming the deed, and giving the trustee full power of sale. All the parties interested in the trust deed were present, and they were all of age. April 21, 1885, the deed was reformed by order of court, and the property conveyed to the trustee, Mary Irving, with power to sell. April 18, 1887, the plaintiff, as trustee, contracted with defendant, James J. Campbell, for the sale of the property; and on May 20, 1887, in pursuance of the contract, plaintiff tendered the defendant a deed duly executed. Defendant made no objection to the form or execution thereof, but objected to the title as tendered, on the three following grounds: (1) That there is no legal evidence of the transfer of the title from Thomas Lawrence, through whom plaintiff claims. This objection was the only one specifically raised when the title was closed. (2) That plaintiff has no power to convey under the trust created in the deed from whence her authority as trustee proceeds. This objection did not appear in the pleadings, and was not raised when the title was offered, but was urged on the trial for the first time. (3) That plaintiff's title is defective, in that Gideon J. Tucker did not join with his wife in the transfer. This objection was taken at the close of the trial, after Tucker had testified as one of plaintiff's witnesses. The opinion of the referee was as follows: "H. C. VAN VORST, Referee. This is an action by the vendor to compel the specific performance by the defendant of a contract for the sale and purchase of land. The objections to the plaintiff's title interposed by the defendant necessitate an examination of the recording acts. The statute declares that an unrecorded deed shall be void, as against any subsequent purchaser in good faith, and for a valuable consideration,' of the same real estate. 1 Rev. St. p. 756, § 1. To entitle a conveyance of land to be recorded, the statute prescribes and limits the proof needed to establish its execution. The execution of the conveyance may be acknowledged by the person executing the same before an appropriate officer, or it shall be proved by a subscribing witness thereto. When proved by a subscribing witness, which is the case under consideration, the witness shall state his own place of residence, and that he knew the person described in and who executed such conveyance.' 1 Rev. St. p. 758, § 12. It is further provided that the officer taking the acknowledgment shall indorse on the conveyance a certificate signed by himself, setting forth, among other things, the names of the witnesses examined before him, and their place of residence. 1 Rev. St. p. 759, § 15. In the case under consideration, the deed itself, the execution of which is claimed to have been proven by Gideon J. Tucker, a subscribing witness thereto, is lost, and a certified copy of the same taken from the record thereof in the register's office has been received in evidence. The sufficiency of this record as evidence is objected to by the defendant's counsel, upon the ground that the residence of the subscribing witness is not stated in the copy certificate written on the certified deed. "There is a want of harmony in the decisions in respect to the effect of a record of a conveyance, the official proof of the execution of which, to entitle it to be recorded, is not a substantial compliance with the provisions of law directing the record of deeds. In 2 Pom. Eq. Jur. § 600, it is said that the irregular, defective, or improper recording of an instrument, although clearly not a constructive notice under the statute, may be sufficient to put a purchaser upon inquiry, and so constitute an actual notice.' Upon an examination of the cases, that learned author says that there is upon that point a conflict of judicial opinion.' But in this state it is held that a deed or other instrument unduly registered, either from want of a valid acknowledgment or otherwise, is not notice to subsequent purchasers or mortgagees. Peck v. Mallams, 10 N. Y. 509; 4 Kent, Comm. 174. But that the official certificate does not follow the precise words of the statute does not show a failure of a substantial compliance with its provisions, or that the real object and purpose of the statute has not been reached in what was actually done. Clerical errors, changes in phraseology, or omission of words, clearly not of the substance of the statute, may be disregarded. Iron Co. v. Reymert, 45 N. Y. 703. In Jackson v. Gumaer, 2 Cow. 552, 556, the officer taking the acknowledgment of the execution of the instrument certified that before me came De Witt C. Rose, to me known, and acknowledged,' etc. The words to be the person described in and who executed the deed,' required by the statute to be stated in the certificate, were omitted. It was urged that this omission was fatal. The court, per SAVAGE, C. J., held the objection to be technical,' and it was disregarded. Jackson v. Osborn, 2 Wend. 555. "The value and importance of the particular words omitted from the certificate in the case under consideration, under the recording acts, has not been the subject of judicial decision. It is a new objection; but without violating the principle which has been heretofore applied in determining what was a substantial and proper compliance with the terms of the statute, and what omissions in the form of a certificate might be regarded as unsubstantial, it may be properly held that the above decisions cover the case in question. Such certificates should be liberally construed, and clearly, with reference to |