text:
    CATHARINE CURRY, Appellant, v. ROBERT CURRY, Respondent. SAME v. JOHN CURRY, Respondent.

      Ante-nuptial agreement •— release of dow&r by wife — consideration required, to sustain it — chap. 375 of 1849.
    An ante-nuptial contract oí a woman that she will not claim her dower in the event of her intended marriage is contrary to public policy, and unless founded upon the consideration of some provision for her in lieu of dower, will be ineffectual both at law and in equity.
    This rule is not changed by .chapter 375 of 1849, providing that all contracts made between persons in contemplation of marriage, shall remain in full force after such marriage takes place.
    Such intended marriage, even though solemnized in reliance upon the agreement, does not of itself furnish a sufficient consideration to support the same.

      Quaere, as to the power of the court to inquire into the adequacy of the provision made for the wife, and as to the extent to which such inquiry can be carried.
    Appeals from judgments iu favor of the defendant in the above entitled actions entered upon the reports of a referee.

      James B. Berhms, for the appellant.

      J. A. Skill, for the respondent.
    The agreement was founded upon, and recited a sufficient consideration, viz.: an intended marriage between the parties, and one dollar. The marriage was a valid and sufficient consideration for the contract. (2 Kent’s Com. [12th ed.], 172, 173; 1 Bishop on Law of Married "Woman, §§ 26, 27, 28, 775, 776, and cases cited; Tyler on Inf. and Cov., 454, § 324; Strong v. Arden, 1 Johns. Oh., 271; 2 Story’s Eq. Jur., § 986.) The fairness and reasonableness of such a contract now furnishes a test by which its validity is sustained in a court of equity. (1 Bishop on Law of Married Women, § 424.) And such an agreement will also be sustained in a court of law. (1 Bishop on Law of Married Women, §§ 424, 427, and cases cited; 1 Bishop on Mar. and Div., §§ 14, 15; Miller v. Qoockum, 8 Cray, 542; Sklley v. Fol/yer, 14 Ohio R., 610; Selleólc v. Selleole, 8 Cowan, 79, 85:
      Charles v. Charles, 8 Gratt., 486; Nemes v. Seott, 9 How. [U. S.], 196; With&rs v. Weam&r, 10 Barr., 391; Vance v. Vcmee, 21 Me., 364; Scribner on Dower, 388.)
   Talcott, J.:

These cases are appeals from judgments rendered for the defendants on the reports of a referee.

The action in each case is ejectment for dower. The answers are the same in each case, the evidence was the same, and the referee’s report the same. The two cases were argued as one.

The plaintiff, as the widow of Robert J. Curry, sues in each case to recover her dower in a farm, situate-in Monroe county. The two farms were, by the deceased Robert J. Curry, devised to his two sons, one to Robert and the other to John. The referee finds in each case that Robert J. Curry was seized of the premises at.his death, but has reported in favor of the defendant in each case, giving effect to an ante-nuptial agreement between the plaintiff and Robert J. Curry, her deceased husband, as an equitable bar to her claim of dower in the two farms. The ante-nuptial agreement relied on, was duly executed and acknowledged between the parties on the day of their marriage, in July, 1864. The agreement is short and in substance recites that the plaintiff (then Catharine Barry), in consideration of a marriage about to be had and solemnized between her and the said Robert J. Curry, and in consideration of the sum of one dollar to her in hand paid, “ doth hereby covenant and agree with the said Robert J. Curry that the said Robert J. Curry, his heirs and assigns, shall and will forever hereafter stand seized of and sole owner to the said two farms, to the use of said Robert J. Curry his-heirs and assigns, -free Rom all claims of dower or interest therein of the said Catharine, both before and after the decease of the said Robert J. Curry.” Aud it is further stated in the said agreement, that it was thereby intended that the said agreement should operate as a release and discharge of all claims for dower which the said Catharine might acquire by virtue of her marriage with the said Robert J., and that the said two farms should be, and the same were thereby discharged of and freed from all claims which the said Catharine might have or acquire by such marriage. And, it was fm-ther provided, that the said agreement was not to affect or impair the claim of the said Catharine by virtue of said marriage in any other real or personal estate of the said Robert J.

The instrument was executed under seal by both parties, Catharine Barry and Robert J. Curry, and was duly acknowledged by them. The marriage referred to in the agreement was duly solemnized within about one hour after the execution of the agreement, and as the referee finds, “ in reliance upon it, and in the belief that by its provisions the two parcels of land there described were free and clear from all claim for dower or other interest therein, to which the plaintiff would otherwise be entitled by said marriage,”

There was no actual consideration paid or given to the plaintiff as the consideration for signing the said agreement.

The parties lived together in .wedlock until in the month of January, 1875, when Robert J. Curry died seized of the two farms in "question, and of several other parcels of real estate, and the owner of a considerable personal property. An ante-nuptial contract of a female that she will not claim her dower in the event of her intended marriage, is contrary to public policy, and unless founded upon the consideration of some provision for her in lieu of dower, will be ineffectual both at law and in equity. (4 Kent Com., 56 [Ed. note, B]); Power v. Shiel, 1 Mallory, 296; Miller v. Folger, 14 Ohio, 610; Gould v. Vomack, 2 Ala., 83.)

At the common law, dower could be barred only by settling for the benefit of the wife, some adequate provision for her during widowhood; whether the court could inquire into the adequacy of the provision, and to what extent, has been the subject of some difference of opinion. .In the case of Andrews v. Andrews (8 Conn., 85), cited by the learned referee, it was held that any provision which an adult' before marriage agrees to accept in lieu of dower, will be a good equitable jointure. In that case, the provision was that the husband would forego his marital rights in reference to the property of the wife, both real and personal, said by the court to have been large, and also, to a certain extent, in the proceeds of her labor; and, as said by the court, except for the agreement, the husband would, by virtue of the marriage, have been entitled, to the personal property and the use of the real estate during their joint lives; and though marriage is said in the opinion to be a valuable consideration, it is not intimatéd that the marriage alone would be a sufficient consideration to sustain such a contract. Tbe contract was upheld on the ground that the intended husband relinquished valuable marital rights, and had performed the agreement on his part. (See McCartee v. Teller, 2 Paige, 511.) But in no case to which we have been referred has it been held - that an agreement made before marriage, and without any consideration except the intended marriage, not to claim dower to which the female would otherwise be entitled, in consequence of the marriage, can be upheld or would be enforced in equity.

The legislation on this subject seems to throw some light upon the views which the legislature has taken in regard to the validity and effect of such a contract.

The Revised Statutes provide (1 R. S., 741, § 9), that “whenever an estate in lands shall be conveyed to a person and his intended wife, or to such intended wife alone, or to any person in trust for such person and his intended wife, or in trust for such wife alone, for the purpose of creating a jointure for such intended wife, and with her assent, such jointure shall be a bar to any right or claim of dower of such wife, in any lands of the husband.” And again, in section 11, that “ any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of dower, shall, if assented to by such intended wife, as above provided, be a bar to any right or ' claim of dower of such wife in all the lands of her husband.”

It is manifest from these statutes that the legislature did not intend that any contract made by an intended wife, or with her assent, which did not contain some provision for her by the settlement of lands or by a pecuniary provision, should operate to bar dower.

It is not necessary in this ease to decide whether, under the statute referred to, the court can inquire into the adequacy of the provision, or whether it is to be confined to a provision taking effect for the benefit of the wife on the death of the husband, or whether such provision as prescribed by the statute being made, it constitutes a legal or only an equitable bar. It is sufficient to say that the legislature understood and recognized the rule of both law and equity, that an ante-nuptial agreement not founded on any consideration save the contemplated marriage would be ineffectual to bar the dower of the female contemplating marriage. In 1849, the legislature enacted as follows: All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.” (Laws of 1849, chap. 375, § 3.)

. This provision of the statute was not intended to change the law requiring a consideration for a contract not to claim dower, but apparently' only to change that rule of law which avoided contracts between parties intending marriage by the marriage itself, so that now an ante-nuptial agreement solely between the parties contemplating marriage could be enforced after • and notwithstanding the marriage. Such construction has recently been given to this section by this General Term in Brown v. Conger, Executor, etc., where it was held that this section did not repeal or alter that portion of the statute of frauds which requires such contracts to be in writing.

The learned referee finds a consideration for the agreement in the marriage itself. It is true that marriage itself is a valuable and sufficient consideration to sustain • many contracts, and may in part sustain an ante-nuptial contract to forego dower, but, as before said, it seems to be settled that it is not of itself a sufficient consideration’ upon which to base an agreement to relinquish one of the most important rights which the law attaches to the marriage itself. The referee also finds a consideration in what he considers the implied covenant of the decedent to do nothing to affect or impair the claim of the plaintiff to dower in all his real estate but the excepted parcels.

The provision alluded to is the closing one., that this “ agreement however not to affect the claim of said Catharine by virtue of such marriage in any other real or personal estate of the said Robert J.” This provision, it seems to us, is mere surplusage. The agreement could not, without it, and did. not purport to, affect her claim to any other property. It would be a novel rule that an agreement requiring a consideration for its support is to be maintained upon the ground that because it was not to affect any other rights than those specified in it, that this circumstance of itself, whether resulting from the construction of the contract, or specially provided for in it, furnished a sufficient consideration. We do not see, although the instrument was executed by Curry, how any covenant could be implied against him, extending beyond the provision itself, to wit, that the agreement should not operate beyond its terms, and such a covenant, even if expressed, would be of no effect.

It is urged that modern legislation, by which many new powers in respect to property, its acquisition and holding by a married woman free from the control of the husband, has removed many of the reasons why dower was so much favored, and that the rules of law, long established for the protection of dower rights, might well be abrogated, or at least much ameliorated. Such considerations are very proper if addressed to the legislature, but courts can scarcely venture in advance of the legislature to undertake to change the settled law upon the subject; What was formerly a good consideration to uphold an ante-nuptial agreement not to claim dower, is now secured by law to married women, and therefore the rule requiring a consideration other than the intended marriage to support such a contract, is no longer just or equitable. So long as the right of dower is maintained, the courts have no power to alter the conditions on which only it can be barred, till the legislature speaks.

The advantages to be obtained by the marriage, as contrasted with the situation of the plaintiff when the ante-nuptial agreement was made, though as suggested by the referee, such, as that “ a judicious friend in view of all circumstances would have advised,” the making of the agreement by her, would probably tend greatly to show that the agreement could not be held void simply as unfair, and the result of fraud or imposition, but they cannot have the effect of abrogating the rule that such an agreement must be founded upon at least some valid consideration besides the marriage and the legal claims of the wife growing out of it. It appears that the husband, by his last will, made a certain provision for the plaintiff in lieu of dower, and it was claimed on the trial that the plaintiff had elected to accept such provisions of the will in lieu of her dower. The referee, however, has found as a matter of fact, that the evidence on that subject was insufficient to sustain the allegation that she had made any such election. We are now asked to sustain the report of the referee, upon the ground that his finding of the fact that the evidence was insufficient to show such an election as would bar the plaintiff, was erroneous. We think this cannot justly be done. The defendant has not appealed from the decision of the referee. The plaintiff was not called upon to insert in the case the evidence bearing upon the question, and we cannot be sure that the case, as presented, sets forth all the evidence which was given, or wbicb. might have been given on tbe subject. Being of tbe opinion that tbe learned referee has fallen into an error as to tbe validity and effect of tbe ante-nuptial agreement, on wbicb alone be has based bis decision that tbe plaintiff’s claim for dower is barred, we are compelled to reverse tbe judgement.

Judgment reversed and new trial ordered, costs to abide tbe event.

Present — Mullen, P. J., Talcott and Smith, JJ.

Judgment reversed in each case and new trial ordered, costs to abide event


source: Caselaw Access Project

author: Talcott, J.:

license: Public Domain

text:
    CHARLES W. MILES, Appellant, v. FRANCIS A. LOOMIS, Executor, and SARAH J. MILES, as Executrix of JAMES M. MILES, Deceased, Respondents.

      IPorgefry — expends — opinion, of, as to signature being simulated — compan'ison of handm'itings.

    Where, in an action upon a promissory note, the defense of forgery is interposed, experts, as to handwriting, may he permitted to give their opinion from a comparison of the disputed signature with other genuine writings in evidence in the case, and to state, from an examination of the genuine writings and the disputed signature, whether the latter appears to he simulated.
    Appeal from a judgment in favor of tbe defendants entered upon the report of a referee.'
    Tbe plaintiff brought bis action on a promissory note of $2,300, claimed by plaintiff to have been made by tbe deceased, James M. Miles.
    Tbe note was put in evidence by plaintiff, and tbe defendants produced and put in evidence a note, made by tbe plaintiff to tbe defendant bearing tbe same date as tbe note sued upon, the body of wbicb was proved to be tbe genuine bandwriting of James M. Miles, deceased; and also tbe last will and testament of said James M. Miles.

      Witnesses were called and sworn on both sides, who bad more or less acquaintance with tbe handwriting of James M. Miles, and testified as to their opinion of tbe genuineness of tbe signature to said note. On the trial the defendants called and had sworn Truesdell, Barnes and Cowie, as experts on the question of the genuineness of the said signature, and before each of them were placed the note in suit, the note put in evidence by defendants aforesaid, the body of which is in the handwriting of James M. Miles, deceased, and the said will and testament of James M. Miles; and each of said experts were told to look at the signature of the note in suit, and then to examine the body of the said note in the handwriting of James M. Miles, and the signature to the said will; and then, assuming the body of said note and the signature to said will to be the genuine handwriting of said James M. Miles, to give their opinion as to the genuineness of the signature to the note in suit!
    The question was duly objected to and the objection overruled, and each witness answered in substance that, in his opinion, it was a forged signature.
    To the ruling of the referee the plaintiff’s counsel excepted.
    One of said experts was asked whether, in his opinion, the signature to the note in suit was a simulated signature; and the others, whether it was a simulated signature or an effort to imitate “the handwriting of some other person, and under the objection of plaintiff’s counsel were allowed to answer that it was, in their opinion, a simulated signature or an attempt at imitation; and plaintiff’s counsel duly excepted to the ruling of said referee and the admission of said evidence.

      W. P. GoodeTle and Fra/nk Hiscock, for the appellant.
    The referee erred in allowing a comparison of handwriting; the opinion of the witnesses was wholly upon such comparison, they having no previous knowledge of the handwriting of James M. Miles. {FlUs v. People, 21 How., 356 ; People v. Spooner, 1 Hen., 343, and authorities there ■cited; Phomix Fvre Ins. Go. v. Philip, 13 Wend., 81; Boyle v. Ooleman, 13 Barb., 42.) The admission of the testimony was usurping the province of the court or jury, to which alone it was competent to submit the signatures for comparison, if they were properly in evidence. (See cases above cited; also, FlUs v. People, 21 How-, 356; Dubois v. Baker, 30 N. Y., 355; Yan Wyek v. McIntosh, 14 id., 439; Johnson v. Hicks, 1 Bans., 150 ; Bcmdolph v. LoughTm, 48 N. Y., 456; Perry v. Hewton, 5 A. & E., 544.) As to tbe opinion of tbe experts that tbe signature to tbe note in suit is a simulated signature, or was an effort to imitate the handwriting of some other person, we submit that the court erred. (Johnson v. Hicks, 1 Lans., 150; People v. Spooner, 1 Den., 343; Kowing v. Manley, 49 N. Y., 192.)

      Wm. G. Ruger, for the respondents.
   Talcott, J.:

This is an appeal from a judgment for the defendant entered on the report of a referee. The action is upon a promissory note, claimed to have been made and delivered by the testator to the plaintiff, and payable at the death of the testator. The plaintiff claims that th.e note was, in fact, made by the testator that it might be used as an offset to a note, which he at the same time executed to the testator, and at his earnest solicitation, for an amount which he did not justly owe, but which the testator desired to get from the plaintiff, in order to satisfy his wife and her father, but which he, the “testator, did not intend should be paid by the plaintiff, but which note had, after the death of the testator, been transferred for a valuable consideration before maturity, so that the plaintiff was liable thereon to a l)ona fide holder. The defense was, forgery of the note in suit.

The referee has found that the note is a forgery, and the only questions presented arises upon the. admission of the testimony of certain witnesses called as experts to establish the forgery.

The note given by the plaintiff to James M. Miles, the deceased, was given in evidence on the trial without objection, and it was properly in evidence in the ease, because it was set up as a counterclaim, and because being dated on the same day as the note in suit, and for nearly the same amount, it was improbable without explanation, at all events, that the note in suit was made by the testator when the note admitted to be genuine was made by the plaintiff to the testator on the same day. The will of the testator was also put in evidence by the defendants, for what particular purpose we cannot see from the ease, since it does not appear that any question arose on any provision of the will which was alleged in the com'plaint and admitted in the answer. At all events, it.was received in evidence without objection, and as the case does not contain the evidence, we must presume the will to have been pertinent for some legitimate purpose, aside from a mere comparison of handwriting. These two papers were afterwards used and referred to by the witnesses who testified as experts in reference to the signature to the note in suit.

The papers being thus in evidence in this ease, presumably for some legitimate purpose, they might undoubtedly be used by the referee, examined, scrutinized, compared and remarked upon by counsel as bearing on the question whether the note in suit was signed by the testator, but the question is, whether witnesses could testify as experts, from a comparison of the several signatures ? On this subject it must be admitted that the reported decisions in this jState do not show the law to be in a very satisfactory and settled condition.

In 1823, the late Chancellor Walworth, then being a Circuit judge, held, at the .Saratoga Oyer and Terminer, on the trial of an indictment for forgery, that the testimony of experts from a comparison of hands, was admissible. (People v. Hewit, 2 Parker, 20.) But, in 1845, in The People v. Spooner (1 Denio, 343), the Supreme Court held it to be well settled that such evidence is not admissible. In the Phenix Fire Insurance Company v. Philip (13 Wend., 81), Savage, O. J., says: “Witnesses skilled in handwriting have been received to prove whether, in their opinion, certain instruments were written in a natural or imitated character, and, of coruse, whether they were genuine or forged. This species of evidence differs very little from comparison of handwriting, which is inadmissible. The comparison of hands which is inadmissible, is that arising from the juxtaposition of two writings in order to ascertain whether both were written by the same person, and this is not admitted.” The thing in that case sought to be established was whether certain accounts of stock, all written by the plaintiff, but purporting to have been written in different years, were, in fact, written at the same time, and such evidence was held to be inadmissible, the corut saying: “ The opinion of the witnesses were worth no more than the individual opinions of the jurors themselves.”

In Ellis v. The People (21 How. Pr., 356), Mr. Justice Allen, delivering the opinion of the New York General Term, held, as we understand it, that the testimony of an expert on this subject is incompetent, saying a witness cannot take the place and usurp the functions of the jui-y.

In Van Wyck v. McIntosh (14 N. Y., 439), where notes were offered in evidence, solely for the purpose of a comparison, it was held that “ our courts have adopted the English rule, which excludes such comparisons by the jury as evidence to prove or disprove the handwriting of a party, and the opinions of witnesses founded thereon.” (See opinions of E. A. Johnson and A. S. Johnson, JJ., in case cited.)

In Dubois v. Baker (30 N. Y., 355), the majority of the court held that “ a comparison of hands of papers introduced and relevant, is permitted.” The question arose, in this case, on the admissibility of the testimony of witnesses examined as experts. In the majority opinion, delivered by Davis, J., he says: “As to the writing upon the erasure, or whether made before or after the body of the note was written, if that rested in opinion, it was a proper inquiry to make of the witness, who was a bank cashier, and therefore qualified to speak as an expert.” And he refers to the case of Doe v. Vewton (5 Adol. & Ellis, 514) as authority for the rule that where instruments are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred from such comparison, and says that rule received the approval of the Court of Appeals, in Van Wyck v. McIntosh (supra).

Mullin, J., in the same case, who delivered the minority opinion for reversing the judgment on another point, substantially agrees with the majority opinion as to the admissibility of the testimony of the expert witnesses, and says: “ It has been held that a witness cannot be permitted to speak of his opinion of handwriting, from comparing that of papers in question in the suit with other papers proved to be genuine, unless the papers with which the comparison is to be made are in evidence in the cause; then the papers thus in evidence may be given to the- jury that they may, by comparison, determine a conflict of evidence in relation to the genuineness of the handwriting in issue.”

So it would seem that both the majority and minority opinions in Dubois v. Baker concur in holding that where a jury may compare other signatures which are legitimately in evidence in the cause for other purposes, with the disputed signature, for the purpose of inferring by means of such comparison the genuineness of the latter, experts may also be called to give their opinions from the same comparison. In Randolph v. Loughlin (48 N. Y., 456) it was held only that notes not in evidence cannot be received .for the mere purpose of comparison.

Greenleaf lays down the rule in accordance, as we think, with that to be derived from the case of Dubois v. Baker: “ When other writings, admitted to be genuine, are already in the case, here the comparison may be made by the jury, with or without the aid of experts.” (1 Greenlf. Ev., § 518.)

The witnesses, whose testimony in this case was objected to, were experts, although it does not appear whether they had any other acquaintance with the handwriting of the testator than by comparing it with the other writings which had been introduced on the trial. Testimony to handwriting is generally a matter of comparison. The witness compares the signature presented to him with other writing of the party alleged to have written the signature which he has seen him write, or has received under such circumstances as that it is presumed to have been genuine. The comparison is made in the mind of the witness, from the recollection he has of the other writing, and it is doubtful whether it can be more satisfactory than the opinion of a witness whose business has led him to a careful scrutiny of handwriting, formed from the mere juxtaposition of the signature in issue, with others of the same person conceded to be genuine. These witnesses were also asked whether the signature to the note in suit appeared to be simulated, and an attempted imitation of the writings conceded to be genuine. In Kowing v. Manly (49 N. Y., 192) it was held that it was not competent, in a civil case, to offer evidence that the signature in question did not appear to be simulated, for the purpose of establishing its genuineness, but the case, we think, impliedly admits, that in order to prove that the signature is not genuine, it may be shown that it appears to be simulated. Ye think, then, that the weight of authority, and the tendency of modern decisions is to establish the rule, that experts may be examined to give their opinion from a comparison of the disputed signature, with other genuine writings in evidence in the cause, and to state, from an examination of the genuine writings and the disputed signature, whether the latter appears to be simulated. Of cotu’se, all these signatures are open to the examination of the referee or the jury, and they are not concluded by the opinions of the experts, but may hear those opinions on the subject, giving them such weight as, in view of all the circumstances, they may deem them entitled to. We think, therefore, no error was committed by the learned' referee in this case, in the admission of the testimony objected to.

The judgment is affirmed.

Present- — -Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


author: Smith, J.:

text:
    JOSEPH BUSHNELL, Appellant, v. THE CHAUTAUQUA COUNTY NATIONAL BANK, Respondent.

      Contract of sale — construction of — Rational bcmlc — contract— ultra vires.

    This action was brought upon a contract for the sale of oil, which was in the following form: “Sold to Mr. T. A. Shaw * * * for account of B., ten thousand (10,000) barrels of crude petroleum * * * oil, to be delivered at buyer’s option, at any time from the 24th day of September, 1874, to the 31st day of December, 1874, * * * to be paid for in cash as delivered, with ten days’ notice from buyer to seller * * * if no notice is given contract to expire on the 31st day of December, 1874.” Reid, that the meaning of the provision, that if no notice was given the contract was to expire December 31, 1874, was that the right to call for the oil on ten days’ notice, and the consequent obligation to deliver it, should end on that day. It was not intended to provide that the obligations of the purchaser should be annulled by a failure to give the notice, and that there should be no remedy thereafter for breaches existing on that day.
    The defendant, a national bank, indorsed upon the back of the contract at the time it was made, that Shaw had on that day deposited in it $2,500, “to be held by us as collateral security for the faithful performance of the within contract.” Reid,

    (1) That it was within the power of the bank to enter into the said contract.
    (2) That, even if the contract were ulfra vires, yet as it was not illegal, the defendant was estopjied from setting up that defense, as it would be a fraud upon the plaintiff to allow it so to do, he having entered into the contract relying thereon.

      Appeal from a judgment entered on tbe decision of tbe Chautauqua Special Term, dismissing a complaint on a demurrer thereto.
    The action is brought to recover the sum of $2,500, which the complaint alleges was deposited by one Shaw, with the defendant, a banking corporation, organized under the act of congress passed 3d June, 1864, and which the defendant agreed to hold as security to the plaintiff, for the faithful performance, by Shaw, of a certain contract made by him with the plaintiff to buy and pay for 10,000 barrels of crude petroleum oñ. The complaint alleges that Shaw refused to accept and pay for the oil, and that the plaintiff sustained damage thereby to the amount of $2,500, being the excess of the contract-price over the market-price of the oil. The contract with Shaw was in these words: “Titusville, Pa., September 24th, 1874. Sold to Mr. T. A. Shaw, Jamestown, N. Y., for account of Mr. Joseph Bushnell, ten thousand (10,000) barrels of crude petroleum, at one dollar and twenty cents per barrel of forty-two (42) gallons in bulk, oil to be delivered at buyer’s option, at any time from the 24th day of September, 1874, to the 31st day of December, 1874, both days inclusive, in United Pipe Line receipts, pipeage paid, and to be paid for in cash, as delivered, with ten days’ notice from buyer to seller within the time before delivery. If no notice is given, contract to expire on the 31st day of December, 1874. Brokerage, two and one-half cents a barrel, by seller paid.” (Signed) “ E. T. Leach, Broker.” “Accepted.” (Signed) “T. A. Shaw.” The agreement of the bank was indorsed thereon, as follows: “Jamestown, Sept. 26, ’74. T. A. Shaw has this day deposited in the Chautauqua County National Bank, of Jamestown, N. Y., twenty-five hundred dollars ($2,500) which is to be held by us as security for the faithful fulfillment of the within • contract.” (Signed) “ D. N. Marvin, Cashier.” The complaint alleges that the bank, at the making of said deposit, caused the indorsement aforesaid to be made and signed on its behalf by said Marvin, its cashier, upon the contract accepted by Shaw, and to be delivered therewith to the plaintiffs. And that thereafter the plaintiff signed his acceptance to a counterpart of said memorandum signed by the broker, and the same was delivered to Shaw.

      E. G- Sprague, for the appellant.

      R. P. Mwrwm, for the respondent.
   Smith, J.:

The contract between the plaintiff and Shaw contains this provision : “ If no notice is given, contract to expire on the 31st day of December, 1874.” The notice referred to is the ten days’ notice which the buyer was to give to the seller before he could require a delivery of the oil. No notice having been given, the respondent’s counsel claims that the contract and all the rights and obligations created by it are at an end. Doubtless that conclusion would be correct if the words “ contract to expire ” were used in their literal sense. But the contract thus interpreted was no contract at all, or rather, was a unilateral engagement, binding on the seller only. It imposed no obligation whatever on Shaw, for he had it in his power, by not calling for a delivery, to relieve himself from liability, and that, I understand, is the construction contended for by the defendant’s counsel. The construction seems unreasonable, and it should not be adopted except upon very clear grounds. That the parties contemplated a mutual obligation can hardly be doubted. The very, first word employed by them, sold,” imports an agreement binding on both parties; an obligation on the part of Bushnell to deliver the property at the price agreed on, and on the part of Shaw to receive and pay for it. And there is nothing in the agreement indicating that either party was to be relieved from the obligation thus assumed by him, unless the words in question have that effect. The agreement imposed on the seller very serious obligations. He was required to keep the oil on hand, or to procure it whenever notified by the buyer. The brokerage was paid by him pursuant to the terms of the contract. If the contract is terminated he has lost what he paid, and also the entire consideration for which he entered into the agreement. That -the parties regarded the contract as binding upon the buyer as well as the seller seems evident from the fact that the buyer deposited $2,500 with the bank, and procured it to become hable to that amount for his performance of the contract, and on the faith of that arrangement the plaintiff entered into the agreement. We incline to the opinion that the true meaning of the clause in question is that the right to call for the oil on ten days’ notice, and the consequent obligation to deliver it should terminate on the thirty-first of December. Like the stipulation for ten days’ notice, it was inserted for the benefit of the seller. It was not intended to provide that the obligation of both parties should absolutely be annulled, or that there should be no remedy thereafter for breaches existing on the thirty-first of December. On that day, as the complaint alleges, the plaintiff tendered the oil to Shaw and demanded pay, and the latter refused, of all which the defendant had notice. That, we think, was a breach of the agreement by Shaw, which, by force of the defendant’s implied undertaking, gave the plaintiff a right of action against the bank.

Another point taken by the respondent’s counsel is, that the contract of the bank was ultra vires. By undertaking to hold the money as security for the fulfillment of Shaw’s contract, -the bank, in our opinion, impliedly promised the plaintiff that, in case Shaw failed to perform, the bank would pay to the plaintiff his damages thereby incurred, not exceeding $2,500. The promise is implied from the terms of the undertaking, and from the fact that the bank caused Shaw’s acceptance, with the indorsement of the bank upon it, to be delivered to the plaintiff before he signed the contract with Shaw. The bank had power to receive the deposit. As an incident to that power, it had authority to assent to any terms or conditions respecting the use or disposal of the money deposited which the depositor saw fit to impose, provided they were not illegal or prohibited by the defendant’s charter. If Shaw had chosen to deposit the money payable absolutely to the plaintiff or his order, the receipt of it by the bank, and the issuing of a certificate in accordance with those terms, would have been strictly within its legitimate and ordinary business. What difference does it make as to the power of the bank to receive and hold the money, that the deposit was payable to the plaintiff upon the happening of a future contingent event, and that the amount to be paid to him was also contingent and uncertain, but was capable of being, definitely ascertained, and was in no event to exceed the amount of -the deposit. It is said that a trust was created. In the same sense there is a trust in the case of every bank deposit by one person to the use or credit of another. It is argued by the respondent’s counsel that the bank became a surety for Shaw. Not at all. Its obligation was that of a principal debtor. It was indebted to Shaw for the money deposited, and it agreed to discharge its indebtedness by paying to the plaintiff. We are not aware of 'any provision of law which incapacitates a national bank from receiving a deposit of money on tbe terms above stated.

But assuming that the undertaking of tbe bank was ultra vires, yet, as it was not illegal, we think tbe defendant is estopped from setting up that defense. As, has been said, tbe legal effect of tbe transaction between tbe bank and tbe plaintiff was, that tbe bank agreed, if be would enter into tbe contract with Shaw, that-be should be compensated out of tbe money deposited from any damage be might sustain from Shaw’s failure to perform. Tbe condition on which Shaw made tbe deposit was that tbe bank should undertake to that effect. Tbe agreement of tbe bank was an appropriation by it of tbe deposit to tbe plaintiff’s use, by tbe direction of tbe depositor. Tbe agreement has been fully executed on the part of tbe plaintiff by bis entering into tbe proposed obligation to Shaw. It would be a fraud upon him to release tbe defendant from its part of tbe agreement, and tbe bank is therefore estopped from setting up a mere want of power. (Whitney Arms Co. v. Barlow, 63 N. Y., 62.)

It was not necessary or proper for tbe plaintiff to set out tbe impbed promise of tbe defendant in tbe complaint. It was enough to allege tbe facts out of which tbe implication arises. (Eno v. Woodworth, 4 Comst., 249; Glenny v. Hitchins, 4 How. Pr., 98; Cropsey v. Sweeney, 27 Barb., 310; Moak’s Van Santvoord’s Pl. [3d ed.], 186, and cases there cited.)

These views, if correct,' dispose of tbe several positions taken by tbe learned counsel for tbe respondent.

Tbe judgment appealed from should be reversed, and judgment ordered for tbe plaintiff on tbe demurrer, with leave to tbe defendant to answer in twenty days, on payment of tbe costs of tbe demurrer and of this appeal.

Mullin, P. J., and Talcott,' J., concurred.

Ordered accordingly.


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    EDWARD L. CLARK, Respondent v. CHARLES W. OPDYKE, Appellant.

      Removal of actions to U. S. Gow'ts under eha/p. 137 of 1875 — merments in petition not binding upon court.

    This action was brought to procure the removal of the three defendants, two of whom resided in New Jersey and one in New York, from their position as trustees under a mortgage given by the New York and Oswego Midland Kailroad Company, and to prevent their acting as trustees pendent Ute, on the ground that they had been guilty of certain fraudulent and collusive acts whereby the security of the bondholders had been impaired.
    The defendant Opdyke, who resided in New Jersey, applied for the removal of the action to the United States Circuit Court, on the ground, among others, that there was a controversy in the suit wholly between the plaintiff and himself, which could be fully determined between them. Held,, that as the defendants were jointly responsible for their acts as trustees, the plaintiff was entitled to prosecute them jointly, and that there was, therefore, no controversy between the plaintiff and the defendant Opdyke which could be wholly determined between them, and that the application was, therefore, properly denied.
    The fact that the suit is brought to enjoin and restrain the defendants, is not a ground of removal under the act of 1875.
    Under the act of Congress of 1875, providing that where there is a controversy, which is wholly between citizens of different States, and which can be fully determined as between them, either one or more of the plaintiffs or defendants may remove the suit to the Circuit Court, the averments contained in a petition for such removal are not conclusive upon the court, but the existence of the requisite facts must be ascertained by the court, and for that purpose the averments of the petition in regard to them may be controverted by the opposite party.
    Appeal from an order of the Special Term held in Oneida by Mr. Justice Noxon, denying the prayer of the appellant, Opdyke, to remove this cause, as to him, into the Circuit Court of the Hnited States for the northern district of New York. The plaintiff is a resident of the State of New York. There are three defendants, Stevens and Opdyke, residents of New Jersey, and Hewitt, who at the time of the commencement of the action resided in New York. This action was commenced on the 6th of May, 1876, by the service of a summons and complaint; the latter prayed for a judgment removing said defendants as trustees and appointing others in their place, and that the defendants be enjoined from acting as trustees pendent Ute, and that special trustees be appointed meanwhile. On the twenty-fifth of May the defendant Opdyke entered his appearance, and at the same time presented his petition at the Oneida Special Term, praying for the removal of the cause. The petition avers, among other things, that the jurisdiction of the Circuit Court of the United States is involved in the suit; that the matter in dispute arises under the Constitution and laws of the United States; that the action is brought, among other things, for the purpose of restraining and' enjoining the defendant Opdyke; and that there is a controversy in the suit wholly between the plaintiff and the defendant Opdyke, which can be fully determined between them. A sufficient bond was presented with the petition, and approved by the judge. The motion for an order of removal was heard upon the petition, on the return of an order to show cause, and upon an opposing affidavit made by one of the attorneys of the plaintiff. The affidavit alleged that this controversy is not wholly between citizens of different States, as alleged in the petition, nor is it a controversy arising under the Constitution and laws of the United States, but as set out in the complaint, is a suit in equity to remove the defendants, as trustees of an express trust created under an instrument executed in this State, on property wholly in this State, and for reasons provided for by the statutes and laws of this State. A copy of the complaint is among the papers siibmitted to the court.

      Alexander <& Oreen, for the appellant.

      Bisley, Stoddard c& Mcotteson, for the respondent.
   Smith, J.:

The questions arising upon this appeal are controlled by the provisions of chapter 137 of the act of congress passed in 1875, so far as those provisions are applicable. That act was intended to determine the jurisdiction of the Circuit Courts of the United States, and to regulate the removal of causes from State courts, and it repealed all acts in conflict with its own provisions. We may, therefore, lay out of view the provisions of all prior acts of congress, whether incorporated in the revision of 1873, or not (R. S. of U. S., p. 113, § 639), so far as they are in conflict with the act of 1875. The second section of the act of 1875 defines the cases in which a suit brought in a State court may be removed into the Circuit Court of the United States. It provides that any suit of a civil nature, at law or in equity, then pending, or thereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arising under the Constitution or laws of the United States, or treaties made under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, either party may remove said suit into the Circuit Court of the United States for the proper district. It further provides that when in any suit mentioned in that section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, either one or nlore of the plaintiffs or defendants actually interested in such controversy may remove said suit, etc. The section creates two distinct classes of cases, so far as the matter of citizenship is concerned: one, in which the difference of citizenship exists between all the plaintiffs, on the one hand, and all the defendants, on the other; and a second class, in which less than the whole number of plaintiffs or defendants, by reason of a diversity of residence between themselves and the party opposed to them in a controversy in the suit which can be fully determined as between them, may apply to remove the entire cause. This construction was given to the second section, soon after the passage of the act, by the United States Circuit Court for the northern district of Illinois (Drummond and Blodgett, JJ., in the case of Osgood v. Chicago, Danville and Vincennes R. R. Co. et al., 14 Am. Law Reg. [N. S.], 506), and the decision in that case was recently reaffirmed in the Circuit Court for the northern district of New York (Johnson, J., in Patterson v. Chapman et al. and Bronson et al. v. The Same, MS. opinion). Obviously the present case is not within the first class. Is it in the second ? It is not, unless the suit involves a controversy between the plaintiff and the petitioning defendant, Opdyke, which can be fully determined between them. The act of 1866 (chap. 173) first gave to one of several defendants the right of removal. But under that act only the particular controversy which concerned him could be removed, without the consent of the plaintiff. Under the act of 1875 the granting of the application of one of several parties will remove the whole suit. What, then, is the nature of the controversy in the present action? The counsel for the appellant insists that the averment in the petition on that subject is conclusive, and that the State court cannot inquire into its truth. That, it is said, is for the United States courts alone. The act of 1833 (4 U. S. Stat. at L., 638), and the'act of July 27, 1868, provided that certain matters should be stated in the petition. Under those acts, it was held that when the petition complied with the statute in that respect, the matters so stated could not be controverted on the hearing of the application to remove the cause. (Dennistoun v. Draper, 5 Blatch., 338; Heath v. Austin, 12 id., 320; Fisk v. Union Pacific R. R. Co., 10 Abb. [N. S.], 457.) The act of 1875 does not prescribe what the petition shall contain, but it provides that when certain facts specified in the act exist, a petition may be made and filed-for .the removal of the suit. The existence of the requisite facts must be ascertained by the court, and to that end the averments of the petitioner in regard to them may be controverted by the opposite party. Under the act of 1789, which was like that of 1875, in this particular, affidavits or other proofs were frequently received to controvert the petition. (Anderson v. Manurfacturers Bank, 14 Abb. R., 436; Fisk v. The Chicago, Rock Island and Pacific B. B.. Co., 3 Abb. [N. S.], 453; Smith v. Butler, 38 How. Pr., 192; New York Piano Co. v. New Haven Steamboat Có., 2 Abb. [N. S.], 357.)

We are, then, to determine, from the papers before us, whether there is in the suit a controversy between the plaintiff and the defendant Opdyke, which can be fully determined as between them. For that purpose we may look into the complaint, which is referred to in the affidavit read on the part of the plaintiff in opposition to the motion, and is submitted to us with the other appeal papers. The case made by the complaint is, in brief, that the defendants are the trustees in and under a certain trust deed or mortgage executed by the New York and Oswego Midland Railroad Company, a corporation organized under the laws of the State of New York, to construct and operate a railroad in said State, by which mortgage said company created a first Ken upon its railroad to secure the payment of certain coupon bonds payable in gold, issued by said company, one of which, for the payment of $1,000, with interest, is owned by the plaintiff; that the defendants, as such trustees, by means of certain fraudulent and collusive acts 'set out in the complaint, in violation of their duty, have wasted the property of said company, and impaired the security of the bondholders, and that the plaintiff brings the action in behalf, of himself and all the other bondholders under said mortgage who may join as plaintiffs in the action. The complaint prays for a judgment removing said defendants as trustees, and appointing others in their place, and that the defendants be enjoined from acting as trustees pendente Ute, and that special trustees be appointed meanwhile. It appears that the original trustees named in the mortgage resided in the State of New York. The mortgage provides that in case of a vacancy in the trusteeship, by resignation or otherwise, the railroad company of .the one part, and the surviving trustees of the other, shall select a new trustee to fill the vacancy, and in ease of a disagreement, the holder of not less than twenty per cent of the bonds secured by said mortgage may apply to the Supreme Court of the State of New York to appoint a new trustee to fill the vacancy. The complaint avers that the defendants Opdyke and Stevens were residents of New Jersey when they were appointed trustees to fill vacancies, and that they were fraudulently and collusively appointed, with the design of placing the management of the said mortgage beyond the reach and control of the bondholders and of the Supreme Court of the State of New York.

* It seems very clear, upon the case presented by the complaint, that the plaintiff has a right to prosecute the defendants jointly, and that there is no controversy between him and the defendant Opdyke, that can be wholly determined as between them. The trustees have a community of interest and of responsibility. It is the duty of each one to protect the trust property from the acts of his colleagues. For a neglect of that duty, whereby any one or more of several co-trustees have been enabled to misappropriate, or otherwise occasion any loss to the trust estate, the others, as a general rule, wñl be personaKy answerable. (Hill on Trustees, 309.) The authorities are not entirely in accord as to whether, in a cp.se where there are several trustees who are all implicated in a common breach of trust, the cestm que trust, on seeking relief in equity, must bring his suit, against all of them, or may sne one of them separately, at his election. In Walker v. Symonds (3 Swanst. R., 15), Lord Eldon said, that in such case, he may proceed against one, or all, at his election. But in Munch v. Cockerell (8 Sim. R., 219) Yice-Chancellor Shadwell held that the suit must be against all the trustees then living. In a careful opinion he reviewed the case of Walker v. Symonds, and remarked that it was doubtful whether Lord Eldon, in saying that the cestm que trust “ may proceed ” against one or all, meant any thing more than that he may proceed after decree against all. Perhaps, however, the better opinion is that in such a case the tort may, by analogy to the law, be treated as several, as well as joint, at the election of the plaintiff. (Story’s Eq. PL, 213, and cases there cited in note 4.) But either rule is fatal to the claim of the appellant. Whether the plaintiff is compelled to sue all jointly, or may do so, at his option, he has sued all jointly in this action. He has elected to treat the liability of the defendants as joint, and against them, jointly, he seeks relief. There is not, therefore, a separate controversy between him and the defendant Opdyke, and the case is not within either of the classes of cases provided for by the act of 1815, in respect to diversity of citizenship.

The petitioner also claims the right of removal on the ground that the matter in dispute arises under the Constitution and laws of the United States. The averment in the' petition in that regard is controverted, and there is nothing in the complaint to warrant the claim. The only circumstance that can be laid hold of to countenance it is, that the trustees are charged, among other allegations of fraud, with having caused certain suits to be instituted in the Oircuit Court of the United States for the southern district of New York, against the said railroad company and others, and with having procured, in that court, one or more of said trustees to be appointed receivers of the property of the company, in collusion with the officers of the company, in derogation of their duties as trustees, and in defiance of the rights and interests of the bondholders, and that the same proceedings were void for want of jurisdiction. The bare statement of the allegations show, that they involve no matter in dispute arising under the federal Constitution or laws. If the defendants have nsed the orders or decrees of the Circuit Court as a means of perpetrating fraud, at the expense of the plaintiff, the State courts, nevertheless, have jurisdiction of the matter.

The only other ground on which the appellant claims the right of removal is that the action is brought to enjoin and restrain the defendants. That was a ground of removal under the act of 1866 and the Revised Statutes (p. 113, § 639), but it is not so under the act of 18J5.

The order of the Special Term denying the application is affirmed, with costs and disbursements.

Mullin, P. J., and Talcott, J., concurred.

Order of Special Term affirmed, with ten dollars costs and disbursements.

Note. — We are informed by a note appended to tbe points of tbe respondent’s counsel that since tbis appeal was taken a motion was made by tbe plaintiff to tbe United States Circuit Court to remand tbe cause to tbe State court, against tbe defendant Stevens, wbo bad obtained an ex parte order removing tbis action from tbe State court to tbe Circuit Court. Tbe Circuit Court remanded tbe action, and beld that it was not a case to be removed, and that that court bad no jurisdiction of tbe action under tbe principle laid down in tbe opinion of Johnson, J., above referred to.


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    JOHN AUGSBURY, Respondent, v. CHARLES CROSSMAN, Appellant.

      Bankruptcy act of 1867 — when State insolvent Mo suspended by — Petition for dis- • elmrge under State lom — relinquislvmemt by petitioning judgment creditor, of the security f 'or his debt — form of.

    Tbe bankruptcy act of March 2, 1867, did not take effect so as to suspend tbe operation of tbe insolvent law of tbis State until June 1, 1867.
    A petition, for tbe discharge of a debtor under tbe State insolvent law, was signed by a judgment creditor, wbo indorsed thereon: “For value received I hereby release to tbe assignee to be appointed, all claims on tbe estate of Charles Cross-man, that I bave by reason of tbe judgment against him assigned to me.” Beld, that tbis was a sufficient compliance with tbe provision of 2 Bevised Statutes, 86, section 11, requiring any secured creditor, wbo signs tbe application, to add to bis signature a declaration in writing relinquishing bis security for tbe benefit of all tbe creditors of tbe debtor.

      Appeal from a judgment in favor of defendant entered on a verdict rendered by direction of the court, and also from an order denying a motion for a new trial on the minutes.
    The action was brought against the defendants, as copartners under the firm name of Crossman, Reynolds & Co., on a promissory note made in the firm name. The defendant Crossman, alone, was served with the summons and complaint. He answered, denying the copartnership and the making of the note by the firm; and setting up a discharge from his debts, under the insolvent law of the State of New York. (2 R. S., 16, et seq.) The plaintiff replied, alleging, among other things, that the discharge was void, because the State law, by virtue of which it was granted, was not in force, but had been suspended by the act of congress in relation to bankruptcies, passed in 1867. The bankrupt act was approved on the second day of March. By its fiftieth section it provided as follows: “ This act -shall commence and take effect as to the appointment of officers created hereby, and the promulgation of rules and general orders, from and after the date of its approval, provided that no petition or other proceeding under this act shall be filed, received or commenced, before the 1st day of June, a. d. 1867.” The insolvent’s petition was presented to Mr. Justice Mullin, on the 27th day of February, 1867; on the same day, an order "was made by him, requiring the creditors to show cause against a discharge on the 25th of May, 1867, and directing the mode of its service and publication, and on the day specified in the order, the petitioner executed an assignment of all his property, pursuant to the provisions of the act, and the discharge was granted. At the trial, the court directed a verdict for the plaintiff, for the amount of the note,

      L. H. Brown, for the appellant.
    The court erred in holding that the fiftieth section of the bankrupt law, approved March 2, 1867, superseded the State insolvent law so as to invalidate the discharge granted under it May 25th, 1867, as it declares in the opinion it did hold. So long as both statutes can stand together a repeal or suspension by implication will not be- held intended. (55 N. Y., 616, 617 and case cited; Damies v. Fcw/rburn, 3 How. [U. S.], 636-6M.) As a general rule, a statute will not be so con- • strued as to allow it to have a retrospective effect beyond or before the time of its commencement or becoming operative. (5 Hill, 354, 355, and cases cited ; Mames v. Davis, 32 Barb., 468; Jarvis v. Jarvis, 3 Edw. Ch., 462.) Congress conld not, by direct or indirect declaration, effect a repeal or suspension; nor in any manner, except by an exercise of its power in establishing an operative active system of bankruptcy. This was not accomplished till June 1st, 1867. (3 Bank. Reg., 110; Reed v. Taylor, 7 American R. [32 Iowa, 209], 180; Day v. Bardwell, 97 Mass., 246; S. 0., 3 Bank. Reg., 115; Meekin et al. v. Their Creditors, 19 La. An., 497; 3 Bank. Reg., 511; Martin v. Berry, 37 Cal., 208; Matter of Reynolds, 5 Am. R. [8 R. I., 485], 615 ; Griswold v. Pratt, 9 Mete. Pr., 16; Betts v. Bagley, 12 Pick., 570, 579; Maltbie v. Hotchkiss, 38 Conn., 80; S. O., 5 Bank. Reg., 485, 487; In re Reynolds, 9 id., 50; Van Hostrand v. Carr, 30 Md., 128; S. C., 2 Bank. Reg., 485 ; Bump’s L. & P. of Bankruptcy [8th ed.], 293, 295, and cases cited.) Under the bankrupt law of 1841 the following are in point: 9 Rhode Island, 218 ; 2 Iredell (N. O.), 463. The following were cases where proceedings under the State laws had been commenced as above: Judd v. Ives (4 Mete., 401); 97 Massachusetts, 252; 51 New Hampshire, 336 ; 37 California, 208. See, also, Chamberlañn v. Perkins (51 N. H., 336); Barber v. Rodgers (71 Pa. St., 362); 100 Massachusetts, 287; In re Winternitz (18 Pitts. L. J.-, 61); Commonwealth v. O’Hara (3 Pitts., 70); 10 Bankrupt Register, 236. Several of the cases hold that proceedings commenced before the bankrupt law took effect, under State law are not affected by that law. (19 La. An., 497; 5 Rob. [La.], 27; 8 id., 123.)

      Lansing <& Sherman, for the respondent.
    The bankrupt act approved March 2, 1867, suspended the operation of the insolvent laws of the State from the time the act went into force. (,Sturges v. CrowninsMeld, 4 Wheaton, 122; Ogden v. Saunders, 12 id., 213; Griswold v. Pratt, 9 Mete., 16.) The bankrupt act was passed or approved by the-president, on the 2d day of March, 1867, and became operative on that day as a law for every purpose, except that by the proviso in the fiftieth section, no petition or other ■proceeding under the act could be filed or commenced untii the 1st day of June, 1867. Unless some other time is specified in the act itself, an act of congress takes effect from the time it is approved by tbe president. (Potter’s Dwarris on Statutes, 100; U. S. Const., art. 1, sec. Y; Matthew v. Zones, Y Wheaton, 164; Walter v. Richardson, 2 Story O. O., 5Y1.) The language used by congress in the different sections of the act shows conclusively that the intention of congress was that the act should take effect immediately on its passage. (Traders' Bonk v. Campbell, 14 Wall., 8Y; N. Y. Superior Court, Shears v. Lollwnger, 10 Abb. R. [N. S.], 28Y; U. S. District Court, Ohio, Perry v. Langley, Y Am. Law Reg., [N. S.], 429-435; Corner v. Mallory, 31 Md., 468; 1 k. S. Dig. [N. S.], Ill; 1 National Bank. Reg., 98; Y Blatch., 262-2Y4; Bump on Bankruptcy [5th ed.], 520-522; 6 National Bank. Reg., 43; id., 169-260.)
   Smith, J.:

The only branch of this case which need be considered is that pertaining to the insolvent discharge. The principal question is whether the bankrupt act of 2d of March, 186Y, took effect on the day it was approved, so far as to suspend the insolvent law of 'the State and invalidate all proceedings under it had after that date, or whether its operation in that respect was postponed by the proviso in the fiftieth section, to the 1st day of June, 186Y.

The argument on the part of the respondent is, that it being the well-known rule that a statute takes effect from the time of its passage, unless some other time is specified in the act itself, the presumption of law is, that it does so take effect, and the burden is on the defendant in this case to show, by the provisions of the act, that such was not the intention of congress ; that the only intent of the proviso, in the fiftieth section, was to delay the commencement of proceedings under the act till the first of June, in order to give time to the court to make rules and appoint officers, and thus provide the machinery without which no proceedings could be had; that the act contains several provisions which show that the act was intended to take effect from the time offits passage, as, for instance, the language in the twenty-ninth section: “ if, since the passage of tMs act, he has destroyed, mutilated,” etc.; and again, in the same section, “ if, being a merchant or tradesman, he has not, subsequently to the passage of this act, kept proper books of account; ” and in the thirty-ninth section, that any. person residing and owing debts as aforesaid, who, after the passage of this aet, shall depart,” etc., and in section 44, “ that from and after the passage of this aet, if any debtor,” etc.; and finally, that the construction contended for by the respondent’s counsel, has been given to the proviso by the Supreme Court of the United States, in the case of Traders' Bank v. Campbell (14 Wall., 87).

The answer to the argument of. the respondent’s counsel is, that the burden resting on the appellant is limited to showing that congress did not intend to invalidate bona fide proceedings had under State insolvent laws, prior to the time fixed for the commencement of proceedings under the bankrupt act; that the absence of such intention is not disproved by the prohibition of acts on the part of debtors in fraud of the provisions of the bankrupt act, intermediate the date of its passage and the time fixed for the commencement of proceedings under it; and that all that is decided in Traders' Bank v. Campbell (supra), is that the provisions of the act designed to prevent frauds upon it on the part of debtors and others, took effect at the time of its passage, notwithstanding the proviso in the fiftieth section. That the decision went no farther, appears from the report of the case. It was an appeal from a decree of the Circuit Court for the northern district of Illinois, in which that court held that a judgment in a State court against the bankrupt taken by confession when both parties knew of his insolvency, though taken before the 1st day of June, 1867, was an unlawful preference under the thirty-fifth section of the bankrupt act, it being taken after the enactment of that law. On the argument before the Supreme Court, the counsel for the appellants took the position, preliminarily, that under the proviso in the fiftieth section, the bill below did not lie, because all the acts complained of took place before the first of June, 1867, prior to which day the proviso declares that no petition or proceeding shall be begun. Mr. Justice Miller, who delivered the opinion of the court, disposed of the objection in a few words, holding that any act done after the approval of the statute, in fraud of its provisions, was within its prohibitions.

Let us see, then, what is the true construction of the proviso, upon the point in question. The power of congress, on ’ the subject of bankruptcies, is not exclusive of the States. When it is unexecuted by congress, the States are at liberty to exercise the power in its full extent, unless so far as they are controlled by other constitutional provisions; yet, when congress has acted upon the subject, the power of the States is limited and controlled to the extent of the national legislation. (Sturges v. Crowninshield, 4 Wheat., 122; Ogden v. Saunders, 12 id., 273.) But the bankrupt act does not affect cases under the insolvent law of a State, pending at the time, of its going into force. (Judd v. Ives, 4 Metc., 401; Taylor v. Carryl, 20 How. [U. S.], 583, and cases there cited; Agppleton v. Bowles, 2 N. Y. S. C. [T. & C.], 569.) In view of these general principles, it seems evident that by the proviso deferring the commencement of proceedings under the act till the first of June, congress intended that up to that time the insolvent laws of the State should continue in full operation, the same as if the act had not been passed. The only alternative is to conclude that congress intended to prevent access either to the State or federal courts, in cases of insolvency or bankruptcy, from and after the date of the passage of the act, till the time fixed for the commencement of proceedings under it. That intention should not be imputed to the legislature, except upon the clearest language. Indeed it may well be questioned, whether an act intended to have that effect would not transcend the constitutional power of congress. A law prohibiting access to both the federal and the State courts, for the purpose of obtaining an equitable disposition of the estates of.bankrupt and insolvent persons, would be a clear perversion and abuse of the power to pass uniform laws on the subject of bankruptcies.

The construction of the proviso in question has been the subject of adjudication in the courts of some of the other States, and in some of the district courts of the United States. A few months after the bankruptcy act went into operation, the Supreme Court of Massachusetts held, in Day v. Bardwell and others (97 Mass., 246), that the act did not suspend the insolvent laws of that State, until the 1st day of June, 1867. Gray, J., delivered the opinion of the court, and discussed the question very thoroughly. In March, 1868, Leavitt, J., sitting in the United States District Court, Ohio, decided the question the other way, in Perry v. Langley (7 Am. Law Reg., 429). There, a debtor made an assignment under the insolvent law of Ohio, on the 25th of May, 1867, and under it a State court took cognizance of the matter. On July seventeenth, a petition in bankruptcy was filed by a creditor. Tfie court field tfiat, as to tfiat matter, tfie bankrupt act was in force on May twenty-fifth, and tfie United States court could rightfully take jurisdiction of tfie whole matter under tfie petition filed in July. Tfie views of the court were stated in a carefully prepared opinion, which seems to have omitted no argument tfiat could be advanced in support of tfie decision, and in which tfie judge intimates tfiat tfie ruling is contrary to fiis first impression. He does not refer to tfie case of Day v. Bardwell, and probably fiis attention was not called to it. In April, 1869, tfie same question came before tfie Supreme Court of California, in tfie case of Martin, v. Berry (37 Cal., 208). Sanderson, J., in delivering tfie opinion of tfie court, reviewed at length tfie opinion of Leavitt, J., in Perry v. Langley (supra), and dissented from its reasoning and conclusions. His examination of tfie question is exhaustive, and to my mind is convincing. In accordance with it, tfie court field tfiat tfie insolvent law of California was not suspended by tfie bankrupt act till tfie first day of June. In December, 1871, tfie Supreme Court of New Hampshire decided tfie question tfie same way, in Chamberlain v. Perkins (51 N. H., 336). Tfie opinion cites and follows Day v. Bardwell, and disapproves of Perry v. Langley. Tfie only case in this State to which I have been referred, . is Shears v. Solhinger (10 Abb. [N. S.], 287), cited by tfie respondent’s counsel. It throws no light upon tfie question. For aught tfiat appears tfie insolvent proceedings, referred to in tfiat case, were commenced after tfie 1st of June, 1867. All tfiat is said in tfie report, on tfiat point, is tfiat they were commenced “ since tfie bankrupt act went into operation.” I entertain tfie opinion, very confidently, tfiat tfie insolvent law of this State was not suspended until tfie 1st day of June, 1867,'and tfiat tfie discharge,, granted on tfie twenty-fifth of May, was not invalidated by tfie provisions of tfie bankrupt act.

Tfie respondent’s counsel also insists that tfie discharge was void, under tfie State law, by reason of certain jurisdictional defects.

It is said tfiat tfie petition was not signed by creditors representing two-tfiirds of tfie debts of tfie insolvent'. Tfie statute requires tfiat tfie petition shall be signed by tfie insolvent debtor and by so many of fiis creditors residing within tfie United States, as have debts in good faith owing to them by such debtor, then dne or thereafter to become due, aud amounting to at least two-thirds of all tbe debts owing by bim to creditors residing within the United States.” (2 R. S., 16, § 2.) It also provides that “whenever a petitioning creditor shall have * * * any mortgage, judgment, or other security, for securing the payment of any sum of money, upon any real or personal estate of the debtor, * * * he shall not become a petitioner in respect to the debt so secured, unless he shall add to his signature to the petition a declaration in writing that he relin-' quishes to the assignees * * * every such * * * security, for the benefit of all the creditors of such debtor; which declaration shall operate as an assignment of such * * * security to the assignees, * * * and vest in them all the rights and interest of such petitioning creditor therein.” (Id., 36, § 11.) The whole amount of debts appearing by the inventory in evidence in this case is $10,118.74; two-thirds of which is $6,745.82. The debts owing to the petitioning creditors amount to $8,726.43. Of those, debts to the amount of $3,436.51 were secured by judgment, to wit: Bagley, $108.50; Leepy, $741.63; Ross, $850; Clark, $1,736. Each of those judgment creditors added to his signature to the petition a declaration purporting to be a relinquishment of his judgment, but the respondent’s counsel claims that such declaration is insufficient in each case. That claim presents the only question involved in the-point now under consideration. The declarations attached to the signatures of Bagley, Leepy and Ross, respectively, are substantially alike. That of Bagley is in these words : “ Eor value received, I hereby release to the assignee, to be appointed, all claims on the estate of Charles Crossman, that I have by reason of the judgment against him assigned to me.” It is true, this does not follow the words of the statute, but the statute does not prescribe the form. It is a substantial compliance. A release of all claims on the estate of the judgment debtor, by reason of the judgment against him, amounts to a relinquishment of the judgment; and a release to the assignee, is necessarily a release to him for the benefit of all the creditors of the debtor, as it is the duty of the assignee to appropriate to their benefit all the rights and property of the debtor thus released to him. The debts owing to Bagley, Leepy and Ross, and seemed by judgment, therefore go to make up the two-thirds. The declaration, signed by Clark, seems to be imperfect. There was, evidently, an omission to fill a blank left in drawing it, so that it makes no reference to the judgment held by bim; But there are two-thirds without counting his judgment debt.

I have examined all the other objections taken to the sufficiency of the papers, and the jurisdiction of the judge, and think them devoid of merit. This is so apparent that it is hardly necessary to state them, or the reasons for so holding.

As the discharge is regarded as valid, it follows that the judgment should be reversed and a new trial had, costs to abide event.

Mullin, P. J., and Talcott, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event.


author: Smtth, J.:

text:
    CORNELIA VAN ALLEN, Respondent, v. FARMERS’ JOINT-STOCK INSURANCE COMPANY, Appellant.

      Agent of inswrance company — powers of— when company bound by acts of — waiver of condition of policy.

    An agent of an insurance company was authorized by his certificate of appointment to make surveys and receive applications for insurance and premiums upon the same, according to the regulations and by-laws of the company. It appeared that, in addition to the acts authorized by the certificate of appointment, he also received and forwarded notices of loss to the company, which were acted upon by it; that he generally informed persons taking out policies to notify him in case of loss; that several persons did so, and the company, upon being notified by him, sent on their general agent and adjuster, who settled the claims without any proofs of loss. Held, that the company held the agent out, as authorized by it, to receive notices of loss, and that he therefore had apparent authority to extend the time for serving them or to waive them altogether.
    Defendant’s agent, having been notified by the plaintiff of a loss sustained by her, informed the company thereof, and received from it a letter stating that its general agent would be on in a few days and attend to the matter. Subsequently, and before the expiration of twenty days from the loss, plaintiff made • due proofs of loss and presented them to the agent, who told her that he had notified the company; that its general agent would be on to settle the loss in a few days, and that she might go home and rest easy until he came. After the twenty days had expired the general agent came, and gave plaintiff to understand that if he should find the fire was not fraudulent there was no obstacle in the way of adjusting her loss; thereafter the plaintiff sent due proofs of loss, which were returned by the company on the ground that they were not furnished in time.
    The policy contained a condition requiring proof of loss to be furnished within twenty days after the loss, and provided that no condition or restriction of the-policy should be waived except by an express agreement in writing signed by an officer of the company.
    In an action to reéover upon the policy, the company set up a failure to furnish proofs of loss as a defense. EM, that the acts of the agent constituted a waiver of the conditions of the policy, and that the company could not avail itself of a breach thereof as a defense to the action.
    Motion by defendant for a new trial on exceptions ordered to be beard at tbe General Term, in tbe first instance.
    Tbe action was brought upon a policy of insurance against loss by fire. Certain conditions were annexed to tbe policy and made a part of tbe contract, one of wbicb was in tbe following words: “ All persons insured by tbis company and sustaining loss or damage by fire, sball forthwith give tbe company notice thereof in writing, and within twenty days after tbe loss, sball deliver a particular account of such loss, signed and'sworn to by them,” etc. Tbe policy contained tbis provision: “ Tbe use of general terms, or any thing less than a distinct, specific agreement, clearly expressed in writing, and signed by an officer of tbe company, sball not be construed as a waiver of any written or printed condition or restriction of tbis policy.”
    A part of tbe insured property was' destroyed by fire on the 2d February, 1872. Tbe next day tbe plaintiff notified tbe local agent of tbe defendant, through whom tbe insurance was effected, of such loss, and tbe agent gave notice to tbe defendant by letter. Tbe defendant’s secretary wrote tbe agent that their adjuster was away, but would attend to tbe matter as soon as be returned and that be would notify tbe agent. Subsequently, tbe plaintiff prepared a particular account of her loss, and not having beard from tbe agent, she called on him, and stated that tbe policy required her to furnish a statement of loss within twenty days, and that she bad her papers made out. Tbe twenty days bad not then elapsed. Tbe agent replied that be bad notified tbe company and they bad written him that Peak, their general agent and adjuster, would be on and settle tbe loss, and told her to go borne and rest easy till Peak came. Shortly after the expiration of the twenty days, Peak visited the place, saw the plaintiff, and told her the company paid very promptly, but there had been so much said about the fire he would investigate the matter, and let her know. Plaintiff waited, but Peak did not again see her or commuicate with her. On the twenty-fifth of April she mailed an account of loss to the defendant. It was returned immediately, on the ground that it was not furnished within the time prescribed by the policy. The plaintiff then commenced this action. At the trial, the judge ordered a verdict for the plaintiff, holding that the conditions respecting notice and proofs of loss were waived.

      D. Pratt, for the defendant.

      M. Hopfoms, for the plaintiff.
   Smtth, J.:

The policy required written notice of the loss to be given forthwith, but it is 'evident from the testimony of Willetts, the agent of the company, and of Lawrence, the secretary, that the verbal notice of loss given by the plaintiff to Willetts the day after the fire, and by him communicated to the home office, was treated by the company as a sufficient compliance with that requirement of the policy.

A graver, and really the only, question in the case is, whether the defendant waived the condition requiring proofs of loss to be furnished within twenty days. But I am inclined to think that question also was properly disposed of at the Circuit.

It has been held, repeatedly, in this State that a condition may be waived by parol, notwithstanding a provision in the policy that nothing but a written agreement signed by an officer of the company shall have that effect. The provision requiring a waiver to be in writing may itself be waived. (Ames v. N. Y. Union Ins. Co., 14 N. Y., 253; Goit v. National Protection Ins. Co., 25 Barb., 189; Carroll v. Charter Oak Ins. Co., 38 id., 402; Pitney v. Glen's Falls Ins. Co., 61 id., 335 ; Whitwell v. Putnam Ins. Co., 6 Lans., 166 ; Parker v. Arctic Fire Ins. Co., 1 N. Y. S. C. [T. & C.], 397; Van Allen v. Farmers' Joint-Stock Ins. Co., 6 id., 593.)

It is also well settled that, while a party bound to perform has still time and opportunity for so doing, if something be said or done by the other party, by which the former is induced to believe that the condition is waived, or that strict compliance will not be insisted on, the latter is estopped from claiming non-performance of the condition. (Bumstead v. The Dividend Mutual Ins. Co., 12 N. Y., 81, and cases there cited by Allen, J., page 91; Ames v. The N. Y. Union Ins. Co., 14 N. Y., 253, 263; O'Niel v. Buffalo Mutual Ins. Co., 3 Comst., 122; Post v. Ætna Ins. Co., 43 Barb, 351.)

It appeared at the trial that proofs of loss were not furnished until some ten weehs after the fire. But the plaintiff testified, in substance, that her omission to serve them within the time limited by the policy was in consequence of a statement made to her by Willetts, the local agent of the defendant, that she need not do any thing beyond giving notice of the loss till the adjuster of the company had called on her. Her testimony on that point is corroborated, in the main, by Willetts. He does not deny that he made the statement which she testified to. The only part of his testimony that can be regarded as not entirely in accordance with hers, is his impression that he told her “ she must go by the policy.” It is insisted by the defendant’s counsel that this conflicts with the plaintiff’s testimony, and that the question should have been submitted to the jury. The point is not now available to the defendant, in view' of the manner in which the case was disposed of at the Circuit. At the close of the testimony the defendant’s counsel moved for a nonsuit, and the motion having been denied, he did not ash to have any question of fact submitted to the jury, but contented himself with excepting to the direction of a verdict for the plaintiff. The case was treated on all hands as one in which there was no conflict of testimony, and which'presented questions of law only. The defendant is to be regarded, therefore, as having waived the point that the testimony was conflicting in the particular referred to, or as having consented that the question of fact, if one existed, should be decided by the court instead of the jury. (Barnes v. Perine, 12 N. Y., 18; Winchell v. Hicks, 18 id, 558; O'Neill v. James, 43 id, 84; Stone v. Flower, 47 id, 566; Collins v. Burns, 63 id., 1.)

Passing that point, it is apparent that, if Willetts had authority to waive the furnishing of proofs within the time specified by the policy, his statement to the plaintiff, testified to by her, was enough to constitute such waiver. The question is not merely what his real authority was, as between him and the company, but how was he held out by the company; had the plaintiff reason to infer from the acts of the company that he possessed authority to waive compliance with the provision in question ? His actual authority, as expressed in his certificate of appointment, was merely to make surveys and receive applications for insurance, and premiums on the same, according to the regulations and by-laws of the company. What the regulations and by-laws on the subject were does not appear. But the evidence is, that he not only received applications for insurance and collected premiums, but he also, in excess of the power conferred by his certificate of appointment, received notices of loss, and sent them to the secretary, and the company acted upon them as valid notices. That was done in this case. Grenerally, when he procured policies he told the applicants to notify him in case of loss, and in several instances the parties did so, and the company, on being informed by him of such notice, sent on their general agent and adjusted the claim without any proofs of loss being furnished. And in all the dealing between the plaintiff and the company, the latter was represented by Willetts, except that the policy was mailed to the plaintiff directly from the home office, indorsed with the name of Willetts as agent.

It is very clear, therefore, that the company held Willetts out as authorized by them to receive notices of loss, upon policies issued on applications made to him. The requirement respecting proofs of loss, and notice of loss, is in one and the same clause of the policy. It does not specify to whom, or at what place, proofs shall be furnished. Merely, that they shall be furnished within twenty days. Within that time, the plaintiff went to Willetts for the purpose of complying with that condition, ready and offering to do so. He told her she need do nothing then; to rest easy till Peak came, and he would adjust the loss. He told her, also, that the secretary of the company had written in answer to the notice of loss, that Peak would come and attend to the matter as soon as he returned home, and would notify Willetts of his coming; and in fact the secretary had so written.

If the opinion already expressed is correct, that Willetts had apparent authority to receive proofs of loss, it follows that he had apparent authority, also, to extend the time for serving them, or to waive them altogether. And the conclusion is fully warranted that the company held him out as competent to give the direction which he did give to the plaintiff, and she having relied and acted upon it, the company is estopped from disputing the agent’s authority.

It is said, however, that this very question was decided otherwise by the Court of Appeals, on the review of a former trial of this case, in which that court reversed a verdict in favor of the plaintiff. It appears from the manuscript opinion of the court with which we are favored, that the reversal was upon the ground that the judge erred in charging the jury that Willetts had a right to waive the provision in the policy requiting the plaintiff to furnish the proofs of loss. In so charging, the judge took the question of waiver from the jury. But upon the trial now under review, the counsel for the respective parties, as we have seen, treated the case as involving questions of law only, or consented that the questions of fact, if any, should be decided by the court instead of the jury, and as the evidence warranted the conclusion of the judge, the error pointed out by the Court of Appeals is eliminated from the case.

There is another view of the case, in which the defendant must be deemed to have waived the condition respecting proofs of loss, or to have consented to the delay. Peak, the general agent and adjuster, undoubtedly had authority to waive a compliance with the condition, since it distinctly appears that he had power to settle and pay losses, at his discretion, with or without proofs of loss. He called on the plaintiff after the expiration of the twenty days, talked with her about the fire, told'her he had learned some circumstances indicating fraud, and he would investigate the matter and would take further time for that purpose. The plaintiff testified that he said he would come again at the end of thirty days, and let her know. That he denies, but it is not very material. Whether he used those words or not, she had the right to infer from what he did say, that she needed to do nothing further till she learned the result of his investigation. He did not call on her again, and she, after waiting till she was convinced that he did not intend to come, sent her proofs of loss to the office of the company. Why were not the words and acts of Peak a waiver ? The defendant’s counsel say they were not, for two reasons, first, because the time to furnish proofs of loss had expired before Peak saw the plaintiff; and secondly, because Peak did not know at the time that they had not been f'urnished. The answer to the first position is that the letter of the secretary, in view of the circumstances, is to be regarded as an extension of the time to furnish proofs of loss, till Peak should call on the plaintiff. The circumstances referred to are those above detailed attending the writing of the letter, and the communicating of its contents to the plaintiff; the practice pursued by the company of dispensing with proofs of loss in other instances, and the fact that Peak had general authority to pay or reject claims, with or without proofs of loss being furnished. As to the second position, it is not material whether Peak knew or did not know that proofs had not been served at the time of his interview with the plaintiff. The company knew that none had been received at the home office, and the knowledge of the principal was enough. It was the fault of the principal if the knowledge which the home office had on the subject was not communicated to the agent. But let us look at the extent of Peak’s knowledge on the subject. He testified that his practice was, when informed of a loss, to inquire for the proofs of loss at 'the home office, unless they were handed to' him by the secretary. He did not say that the usual practice was departed from in this instance. The inference is well warranted that when he left the office of the company to adjust the plaintiff’s loss, he knew that the proofs of loss had not then been received. And when he testified that, at the time of his interview with the plaintiff,, he did not know whether proofs of loss had been served or not, his statement amounted to nothing more than saying that he did not know whether proofs of loss had been served at the office of the company subsequently to the time when he left it. It is apparent that, in his interview with the plaintiff, he did not think it material to know whether she had served proofs of loss since he was at the office. If he had thought it of any importance, he could have learned how the fact was by inquiring of the plaintiff or of Willetts, but he did not inquire.

The time to serve proofs of loss having been extended by the secretary of the company till the arrival of Peak, and Peak having given the plaintiff to understand that there was no obstacle in the way of adjusting her claim, if he should find on investigation that the fire was not fraudulent, the waiver was complete, and the defendant is estopped from setting up the delay in the service of the proofs of loss to defeat the claim.

In the recent case of The Home Insurance Company of New York v. The Baltimore Warehouse Company (16 Am. Law. Reg., 162, 168) the Supreme Court of the United States held that when it was testified, on the trial, that the agent of the insurance company, who was authorized to settle losses without interference from the parent office, after the time for presenting preliminary proofs had gone by, acted and spoke as if they had been presented in season, and while resisting the claim, placed his objections on other grounds, and never alluded to any failure to present preliminary proofs until those objections had been swept away ; and after paying for a loss of twenty-four bales of cotton, and receiving notice that the policy would be retained to assert other claims under it, expressly waived another condition for the purpose of giving the insured a continuing right to bring a suit, the jury may well infer that the condition of giving notice of loss and making preliminary proof was waived. It seems, from the note of the case, that the conduct and language of the agent respecting the proofs of loss were treated as a clear act of waiver, proper to be considered by the jury, and, of course, sufficient of themselves, if the jury should so regard them, to warrant a finding of waivei’, and that, too, although the time for presenting the proofs had elapsed. The present case is stronger for the plaintiff, as the extended time for serving proofs had not expired when the acts of waiver occurred.

The motion for a new. trial should be denied, and judgment ordered for the plaintiff on the verdict.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.