Misc.] Supreme Court, April, 1908. formity would be but a name and the object of the statute defeated. It was the intention of the Legislature that the increase should, under the schedule, be automatic and take place at the end of each year. According to plaintiff's contention, this increase would occur on May 3, 1900, irrespective of how long his term of service had been, prior to the enactment. Had he been appointed in April, he would still claim a year's increase in May and another year's increase the following October. But for the clause forbidding reduction, his salary would, for the first year, have been fixed at the minimum, $900. Can it be held that, because his salary could not be reduced, he in consequence became entitled to an increase? If the law says salary cannot be reduced, can the prohibitive words be perverted into meaning that the salary must be increased? And to this point plaintiff's reasoning inevitably leads; for it involves the unavoidable conclusion that, because his first year's salary was protected from reduction, he thereby should receive in one year the annual increments allowed for two. I do not believe the Legislature ever intended such a result, and certainly it should not receive judicial sanction. Reliance is placed by plaintiff upon the case of Moore v. Board of Education, 121 App. Div. 862, recently decided by the Appellate Division. It has no application. The question passed upon there was the plaintiff's right to a certain grade. Here there is no such question. Defendant's contention that the plaintiff is estopped from recovery because of having receipted in full for his salary and that he is barred by the Statute of Limitations cannot be upheld. These questions might become important if bearing upon contractual relations, but where rights are fixed by statute they may not prevail. Judgment for defendant is awarded. Judgment for defendant. Supreme Court, April, 1908. [Vol. 59. KATHARINE K. WRIGHT, Plaintiff, v. CHARLES J. DAY (Supreme Court, New York, Special Term, April, 1908.) Cancellation of written instruments Procedure Partiesaids in the fraud; Intermediate owners. Mortgages - Assignment of mortgages — Covenants. - One who One who merely aids in the fraudulent procurement of a deed to a third person is neither a necessary nor a proper party to an action to set the deed aside. In an action to set aside a bond and mortgage on the ground that it was procured by fraud, the original mortgagee, who after its execution assigned the mortgage to a third party who in turn assigned it to the defendant, is not a necessary party. The implied warranty of the mortgagee to the first assignee does not inure to the benefit of the defendant, a subsequent assignee, the latter's claim upon an implied warranty being limited to his immediate assignor. And, where the defendant's immediate assignor was the defendant in an action previously brought by the plaintiff for the purpose of having the bond and mortgage adjudged null and void, in which the plaintiff recovered judgment accordingly, such assignor is estopped by the judgment and is neither a necessary nor a proper party to the present action. ISSUES of law upon demurrer to complaint for defect of parties defendant. Richard B. Kelly, for defendants, and demurrer. Bailey & Sullivan, for plaintiff, opposed. BISCHOFF, J. The action is to rescind and cancel a certain bond and mortgage upon real property, executed by the plaintiff to one James Larkin, and alleged to have been procured by the fraud of James Mendels, acting as Larkin's agent. The complaint alleges that the bond and mortgage were assigned by Larkin to Edward H. M. Rochr and by the latter to Charles J. Day who holds them as collateral security for a loan made to Roehr by the Oriental Bank, and that, in an Misc.] Supreme Court, April, 1908. action by the plaintiff against Roehr, in this court, the same bond and mortgage were adjudged to be null and void. Only Day and the Oriental Bank have been made parties to the present action, and these defendants demur upon the ground of a defect of parties, in that Mendels, Larkin and Roehr have not been joined with them. That one who merely aids in the fraudulent procurement of a deed to a third person is neither a necessary nor a proper party to an action to set the deed aside was decided in Seiferd v. Mulligan, 36 App. Div. 33. Larkin may be answerable to Roehr upon his implied warranty of the bond and mortgage (Ross v. Terry, 63 N. Y. 613); but, having parted with all his interest therein to Roehr, he is not a necessary party. It may be desirable to the demurring defendants that he be joined, to the end that the judgment sought shall be conclusive upon him; but, as between the plaintiff, Roehr and the present defendants, Larkin's presence is not essential. Pom. Code Rem. (3d ed.), § 418; Whitney v. McKinney, 7 Johns Ch. 144; Topping v. Van Pelt, Hoff. Ch. 545. He cannot be said to be connected with the subject matter of this action. It is open to the defendants to ask to have Larkin brought in as a party if they so desire, but that without him the court cannot determine the relative rights of the plaintiff and the present defendants with regard to the bond and mortgage is an untenable position. The present parties and Roehr are the only parties interested in the matter with regard to which the court is asked to pronounce judgment. Larkin's warranty to Roehr does not inure to the benefit of the defendants Day and the Oriental Bank; and, with no demand for judgment against him personally, it may be questioned, whether he would be a proper party defendant. As between the plaintiff and Rochr, the judgment against the latter, alluded to in the complaint, estops him from claiming any further rights under the bond and mortgage. He does not, therefore, appear to be either a necessary or even a proper party to the present action. If joined, the former judgment would be available to him as a plea in bar to this action; and neither he nor the plaintiff can, as between themselves, be compelled to relitigate the matter thus Supreme Court, April, 1908. [Vol. 59. solemnly concluded. Roehr's presence as a party is not essential to any right of the defendants Day and the Oriental Bank. Notice to him of the pendency of this action and a request by the defendants that he assume the defense in their protection will conclude him by any judgment affecting the validity of the bond and mortgage. Washington Gas Light Co. v. District of Columbia, 161 U. S. 316; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 151. The demurrer is overruled, with costs, with leave to the defendants to plead over upon the payment of costs within twenty days. Demurrer overruled, with costs, with leave to defendants to plead over upon payment of costs within twenty days. JOSEPH MOSER, Plaintiff, v. THE PRESS PUBLISHING COMPANY, Defendant. (Supreme Court, Sullivan Trial and Special Term, April, 1908.) Injunction: Who and what may be enjoined - Publications and statutes Publication of portrait: Actions for injunctions Pleading. Pleading law Matters relating to pleadings generally - Conclusions of The provisions of chapter 132 of the Laws of 1903 were not intended by the Legislature to prohibit a newspaper from using or publishing the name or portrait of a person without his consent in a single issue, but rather from the continuous use of a person's portrait as a means of advertising a business and for the purposes of trade; and, in an action brought to restrain the defendant, the publisher of a newspaper, where the complaint contains no allegation that the defendant intends to sell or use any further issues of the publication containing plaintiff's portrait or entertains any intention of republishing the same, a demurrer thereto should be sustained. In the complaint in such an action, an allegation that the publication of the plaintiff's picture is for purposes of trade is a conclusion of law; and, where there are no facts stated to justify such a conclusion, the allegation is insufficient to bring the case within the provisions of said act. Misc.] Supreme Court, April, 1908. DEMURRER to complaint. Frank S. Anderson, for plaintiff. Bowers & Sands (Allan B. A. Bradley, of counsel), for defendant. BETTS, J. The plaintiff alleges in his complaint against the defendant as his cause of action, in substance, that the defendant was, on the 22d day of April, 1907, the owner and publisher of a newspaper publication called The World or New York World and that it published and sold for "purposes of trade," on or subsequently to the 22d day of April, 1907, several hundred thousand copies of said publication called The World or New York World for " purposes of trade" and published, circulated and sold "for purposes of trade" several thousand copies of said publication in and about the town of Fremont, county of Sullivan and State of New York, where the plaintiff then and for some forty years previously had resided and had a large acquaintance; that said publication of that day contained the name, portrait or picture of the plaintiff printed on the eighteenth page thereof in connection with the portrait or picture of another person and of a house, and a long article published concerning the plaintiff and another person, unpleasantly commenting on certain alleged actions of plaintiff; that the use of plaintiff's photograph in the manner indicated was done without the defendant first having obtained the written. consent of the plaintiff, and in violation of chapter 132 of the Laws of 1903 of the State of New York, and without the knowledge or consent of the plaintiff; and that the article so published was wholly false and untrue, and without any foundation in fact whatever; and that the plaintiff has been and is caused great mental distress and anguish and caused to be shunned and ridiculed by his friends and acquaintances to his damage. Plaintiff, therefore, demands that the defendant be forever enjoined and restrained from publishing the plaintiff's picture or photograph, as the same was published for purposes of trade by it on said 22d day of |