[225 N. Y.] Opinion, per POUND, J. [Feb., 1919.] they showed their erring partner, but thereby they subjected themselves to a serious risk. Their confidence was not justified. They may be charitably regarded as unfortunate rather than morally delinquent, but Carver's acts were not abnormal, as they very well knew, and their trust in him was the final decisive cause of their loss. The special verdict separates the damages so as to state the amount of Carver's embezzlements from each of a number of clients, but this action is not brought to trace trust funds and the judgment cannot be sustained on any such theory. It follows that the judgment appealed from must be reversed and the judgment of nonsuit be affirmed, with costs in this court and in the Appellate Division. HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, MCLAUGHLIN and ANDREWS, JJ., concur. Judgment reversed, etc. MEMORANDA OF DECISIONS RENDERED DURING THE PERIOD EMBRACED IN THIS VOLUME. FREDERICK KROENKE, an Infant, by HENRY F. KROENKE, His Guardian ad Litem, Appellant, v. JOSEPH JOHNSON, Respondent. Kroenke v. Johnson, 171 App. Div. 935, reversed. (Submitted November 20, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while riding on Bedford avenue in the borough of Brooklyn was run down and injured by an automobile owned by the city of New York, and operated by the fire department of the city of New York. The defendant, then fire commissioner of the city of New York, was using the car to go from fire headquarters in New York to inspect new fire houses in Brooklyn, and returning therefrom to attend a presentation of medals. The car was being driven at the time by a subordinate of the defendant, a uniformed member of the fire department, subject to the orders and control of the defendant. The complaint was dismissed on the theory that because the relation between the defendant and the driver was not that of master and servant, no speed, however excessive, could tend to fasten upon the defendant a liability for the injury. Herbert C. Smyth, James B. Mackie and Julius M. Lowenstein for appellants. William P. Burr, Corporation Counsel (Terence Farley of counsel), for respondent. Judgment reversed and new trial granted, costs to abide event, on authority of Dowler v. Johnson (225 N. Y. 39.) Concur: Hiscock, Ch. J., COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWS, JJ. HAMILTON TRUST COMPANY, Respondent, v. WILLIAM K. DICKERSON et al., Defendants, and LEANDER B. FABER, as Receiver in Supplementary Proceedings of PATRICK H. FLYNN, Appellant. Hamilton Trust Co. v. Dickerson, 173 App. Div. 900, affirmed. (Submitted November 13, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 9, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mortgage on real property. The mortgaged property was conveyed to the defendant Dickerson, the mortgagor, by Joseph F. McClean, as sole acting executor of the will of Sara McCarty, deceased. Sara McCarty acquired title to the property from her brother John McCarty. Foreclosure search disclosed an uncanceled lis pendens against the property in an action in the Supreme Court, Kings county, by one J. K. O. Sherwood on behalf of himself and all other creditors of John McCarty, deceased, against McClean, as executor of Sara McCarty, and others, to set aside as fraudulent the conveyance to Sara McCarty. Because the defendant Flynn was made a defendant in that action as a creditor of John McCarty, Flynn and Faber, the appellant herein as receiver, together with the other creditors of John McCarty, were made defendants in this action. The Sherwood suit was tried and disposed of and the us pendens was canceled and this action was discontinued as against all of the creditors of John McCarty, deceased, except Faber, as receiver, who in his answer alleged that the acts and transactions of Joseph F. McClean, as sole executor of Sara A. McCarty, deceased, with respect to said real property, were in contravention of the provisions of the will of Sara A. McCarty, deceased, and invalid. Charles L. Craig for appellant. Judgment affirmed, with costs; no opinion. Concur: HISCOсK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN and MCLAUGHLIN, JJ. Not sitting: CRANE, J. THE A. E. MCBEE COMPANY, INCORPORATED, Respondent, v. ROOT KNIGHT COMPANY, INCORPORATED, et al., Defendants, and ROBERT E. SHOEMAKER, Appellant. McBee Co., Inc., v. Shoemaker, 174 App. Div. 291, affirmed. (Submitted November 20, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1916, affirming a judgment in favor of plaintiff entered upon a verdict in an action upon a promissory note. Defendant, appellant, alleged that he was an indorser upon a note of the Root Knight Company held by the Harriman National Bank and in order that the same might be renewed in his absence, he indorsed a new note of that company for $2,500 and left the same with the president of the company for the purpose of renewing the note which was about to fall due at the Harriman National Bank; that instead of using the new note for the purpose intended and for which the defendant's indorsement was obtained, it was turned over without defendant's knowledge or consent to the Street Railways Advertising Company who paid therefor the sum of $500 and applied the balance, $2,000, upon an antecedent debt of another company in which the defendant had no interest whatever; that defendant has since been compelled to pay the note held by the bank, which was allowed to go to protest. Frank E. Loughran for appellant. John J. Quencer for respondent. Judgment affirmed, with costs; no opinion. Concur: HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWS, JJ. ALBERT G. WHEELER, JR., Appellant, v. CLAUDIA T. Wheeler v. Wheeler, 172 App. Div. 955, affirmed. (Argued November 20, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1916, modifying and affirming as modified a judgment in favor of defendant entered upon a verdict in an action of replevin. Plaintiff and defendant were husband and wife and had separated. The husband sought to obtain possession of household furniture and effects. The wife pleaded title. Eli J. Blair and Frank H. Platt for appellant. Charles B. Templeton, Jonah J. Goldstein and Joseph Hirschman for respondent. Judgment affirmed, with costs; no opinion. Concur: HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWS, JJ. JACOB GLOCKNER et al., Doing Business as J. GLOCKNER & Co., Respondents, v. GREAT EASTERN CASUALTY COMPANY, Appellant. Glockner v. Great Eastern Casualty Co., 174 App. Div. 873, affirmed. (Argued November 20, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, |