tiff's opening, the character of the complaint was disclosed and the court at once, upon its own motion, directed the withdrawal of a juror and the transfer of the cause to the Special Term for trial. At the Special Term the case was tried. Neither party objected to the tribunal, and the plaintiff made no demand for a jury to determine any of the issues involved. He neither claimed such a trial as a matter of right, nor invoked the discretion which might have submitted one of the issues to a jury. (Code, § 971.) At the close of the evidence his complaint was dismissed. The General Term affirmed the judgment and the plaintiff appeals to this court. "So far as he complains of the action of the court at the Circuit, founding his argument upon an exception taken at that time, we think he is wrong for two reasons. It was entirely proper to send the action to the Special Term, because the equitable relief sought was an indispensable condition to the existence of the legal right of action. But if this fact had been otherwise, the plaintiff could still have demanded a jury trial of the legal issue, and upon such demand might have obtained it. Proceeding to trial before the court without objection, and making no request for the intervention of a jury, he cannot now complain of the tribunal to whose jurisdiction he submitted. "The remaining question argued is settled by the findings of fact. The third is that the said plaintiff executed the said release freely and willingly, and not by any coercion or fear, and had the benefit and advice of his counsel prior to the execution thereof.' It may be admitted that the circumstances of an arrest and of the prosecutor's threats rendered possible an inference of duress, but the further facts that the release was executed after bail had been given, and against the advice of the party's own counsel, and when a trial was open to the accused and he declared his innocence, tend to the inference that he acted freely and voluntarily, and chose to settle rather than face the litigation. The finding of the court, therefore, has foundation in the facts and must govern our conclusion. Upon that finding the release was valid and effectual, and the complaint was properly dismissed. "The judgment should be affirmed, with costs." A. B. Moore for appellant. Samuel B. Hamburger for respondent. FINCH, J., reads for affirmance. All concur. Judgment affirmed. JULIA A. HURLEY, Appellant, v. GODFREY R. MARTINE et al., Respondents. (Argued October 5, 1891; decided October 13, 1891.) MOTION to dismiss appeal from a judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 31, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit. Louis M. Brown and Robert Imrie for motion. Martin L. Townsend opposed. Agree to dismiss appeal; no opinion. All concur. Appeal dismissed. PEOPLE ex rel. CHARLES H. WILLSON, Appellant, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT VERNON, Respondent. (Submitted October 5, 1891; decided October 20, 1891.) APPEAL from order of the General Term of the Supreme Court in the second judicial department, made the second Monday of February, 1891, which reversed an order of Special Term, granting a motion by the relator for a peremptory writ of mandamus. Close & Robertson for appellant. Norman A. Lawlor for respondent. Agree to affirm; no opinion. All concur. Order affirmed. In the Matter of the Application of ELIZA W. CLARKE, as Administratrix, etc., to Mortgage Real Estate of DAVID CLARKE, Deceased. ›(Argued October 5, 1891; decided October 20, 1891.) APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made April 16, 1891. which reversed an order of Special Term, granting the petition herein. C. M. Williams for appellant. M. T. Dunmore for respondent. Agree to affirm on opinion below. Order affirmed. MARY KIEFER, as Administratrix, etc., Respondent, v. THE GRAND TRUNK RAILWAY COMPANY OF CANADA, Appellant. (Argued October 5, 1891; decided October 20, 1891.) APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made January 6, 1891, which reversed an order of Special Term, directing the payment of certain moneys, staying plaintiff's proceedings, etc. JAMES POWERS, as Administrator, etc., Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent. (Argued October 6, 1891; decided October 20, 1891.) APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 28, 1891, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Circuit. Louis Marshall for appellant. M. M. Waters for respondent. Agree to affirm; no opinion. Judgment affirmed. JOHN J. QUINLAN, Respondent, v. EMILY A. STRATTON et al., Appellants. (Argued October 12, 1891; decided October 20, 1891.) APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 12, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This was an action for the foreclosure of a mortgage. "The plaintiff established his cause of action so far as it asserted a right to judgment of foreclosure. That the defendant Emily A. Stratton borrowed two thousand dollars of her mother, Emily Stratton, and executed the bond and mortgage in controversy as security for the loan; that it was assigned by the mortgagee to Mrs. Currie, who assigned it to the present plaintiff; and that it was due and payable at the date of the commencement of this action; are all facts fully proved and in no respect the subject of doubt or contradiction. So far the right of the plaintiff to a judgment of foreclosure was put beyond dispute. "But he sought additional and further relief, and made the defendant Judson a party for that purpose. There was a prior mortgage on the same premises executed by Emily A. Stratton to one Hicks, by him assigned to Fitch, upon whose death it passed to his wife as executrix; while in her ownership was sued and the action carried to a judgment of foreclosure; by her was assigned to Joseph Fitch, Jr., by whom both were assigned to the defendant Judson. The amount then due upon the judgment, and which Judson paid, was two thousand and fifteen dollars and thirty-three cents. He testified to that fact himself. This prior lien the plaintiff sought to destroy as such and postpone to his own mortgage by proof that the consideration of the latter was advanced to pay off the former under an agreement that pro tanto it should take the place of the prior lien. The proofs indicated that some of the money borrowed of the mother was applied by the daughter upon the Hick's mortgage under an agreement like that alleged, but before the purchase by Judson and without knowledge on his part. The purchase by him was made with his own money and so this effort of the plaintiff failed as against Judson. The court adjudged the validity and priority of his lien; awarded a foreclosure subject to that lien; and gave to the plaintiff a right of subrogation only upon paying it in full. Of this result the plaintiff does not complain and Judson cannot, for he is protected and not harmed by its provisions. The priority of his lien for its full amount is recognized and preserved. The plaintiff's foreclosure and sale can do him no harm, and the result is the same as if he had sold on his own judgment, and the plaintiff as subsequent mortgagee had bid in the property for more than the amount of Judson's lien in order to collect the second mortgage out of the surplus value. Judson has no possible ground of complaint unless he had other liens or rights which the judgment failed to recognize. He claims in his answer to have had them, but gave no proof of them on the trial and the same thing is true of the other appellant, the mortgagor. Each of them attempt to fasten a |