text:
    Edward H. Harriman, App’lt, v. Albert G. Howe et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Highways — Prescription.
    A road over uninclosed woodland is not established to be a highway by proof of user during the prescriptive period, in the absence of evidence that the public authorities, at some time during such period, worked or repaired it.

      Appeal from a judgment dismissing the complaint

      Fullerton & Scharps (W D. Guthrie, S. W. Fullerton, M. H. Hirschberg, and G. G. Austin, of counsel), for app’lt; William, D. Dickey (William F. O'Neill, of counsel), for resp’ts.
   Dykman, J.

This is an appeal from a judgment dismissing the complaint of the plaintiff after a trial at the special term of this court. The action was brought to determine the character of the roadway described in the complaint, and to procure a judgment which should declare it to be a*private, and not a public, way, and to perpetually restrain • the defendants, as commissioners of highways, from working or repairing the road, or interfering with it in any manner as a public highway. The complaint alleged that the way in question was, and continues to be, a private roadway, and has at all times been used as such by the owners of the property through which it passes. This way runs through a vast tract of mountainous woodland of over 8,000 acres, over which there are about 50 miles of the same sort of mountain roads. There is not upon it a single human habitation. There is neither roadbed nor anything to distinguish it from the other paths which cross the mountain. There is no record of the laying out of this road, or the creation thereof as a highway by virtue of any statutory proceedings, and the road never was ascertained, described, or entered of record in the office of the town clerk prior to April, 1898. The public authorities at no time worked or repaired the road prior to this controversy with the plaintiff. The defendants do not claim that the road in question was ever .laid out under the statute, but they have now caused the same to be ascertained and entered of record as a road which has been used as a highway"for over twenty years. That record was made after the commencement of this action, and confines the defendants to the contention that the road is a highwayby prescription. The question for our determination, therefore, is whether the road has become a public highway by prescription, and that question is not answered in the affirmative by the mere proof of user for the prescriptive period, as user alone is insufficient to constitute a public highway. It must be associated with some act showing such use to be claimed as a right hostile to and independent of the will of the owner, such as reparation, or assuming the control of the road in some ostensible manner. The presumption of a,grant of the right of way springs from the lapse of twenty years in connection with the adverse use by the public. City of Cohoes v. President, etc., Delaware & H. Canal Co , 134 N. Y. 402; 47 St. Rep. 612. So far as presumptions can be indulged, they favor the position of the plaintiff, for this reason. By the highway law of 1813 it was made the duty of commissioners of highways in the several towns of this state to cause such of the roads as were not already described and recorded to be ascertained, described, and entered of record in the town clerk's office. By the Revised Statutes, highway commissioners were directed to cause such roads as have been used for twenty years, but not recorded, to be ascertained, described, and entered oí record in the town clerk’s office. 1 Rev. Stat 501, § 1, subd. 3. No such record was ever made in relation to this road, and, as the law constantly presumes that public officers have performed their official duty, the presumption is, in the absence of explanation, that the facts required to be recorded never existed. Such presumption is sufficient proof of their non-existence until it is overcome. The record showing the division of the road into districts, even if admissible, does not answer the requirement of the statute, and is not evidence of the existence of a public highway. Property owners cannot be deprived of their land in that manner. For the long period of eighty years no effort was made to record this road. Peter P. Parrott was in possession of this land from 1838, "always used the road for private purposes, and never knew the public authorities claimed it was a public highway. No assessment for labor on it was ever made, and no official authority over the road was ever exercised. Would the town of Woodbury be liable to persons traveling over this road for injuries resulting from its founderous condition ? That is a sure test of its character. and yet such result follows if the contention of the defendants is to be upheld. If such liability attaches in respect to this road, why may it not be inferred in relation to all the other roads over these mountains ? for it is safe to assume that all persons who desire to travel over those roads do so at their pleasure. Such use of this road by the public as the proof shows is entirely insufficient to create a highway by prescription. It passes through a vast tract of uninclosed forest. It is a mountain wood road of the same character as all the wood roads through this forest, being a single way, sufficiently wide fór a lumber wagon. The whole tract has for half a century been used in connection with the Greenwood Iron Works, to furnish cordwood and charcoal for those works, and all the wood roads have been used for drawing the products of these lands to the furnace. The presumption is natural that all the wood roads originally came into use in that way, and for that purpose. For what other purpose could this 50 miles of mountain road have come into use, and what reason is there for presuming that this particular road had an origin differing from that of the others ? It is true there are entries in certain old records pertaining to this road, but they fail to show its origin, or that it ever took on any public character. If the commissioners of highways can now declare this road to be a public highway, and constitute it such by their simple declaration that it has been used for 20 years as such by the public, what prevents the same declaration and result in relation to the other 50 miles of roads over these mountains? It cannot be that the land of the plaintiff is subject to confiscation in that way, for it would be nothing less than that. A portion of the language of the opinion of the court of appeals in the case of Speir v. Town of New Utrecht, 121 N. Y. 420; 31 St. Rep. 414, is entirely applicable to this case and it is this :

“All we have here is that the road was used by the public generally. But the mere fact that & portion of the public travel over a road for twenty years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be 'imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but must be kept in repair, or taken in charge and adopted by the public authorities. We think all this is implied in the words ‘ used as public highways.’ * * * A private way opened by the owners of land through which it passes for their own use does not become a public highway merely because the public are also permitted for many years to travel over it.

Judge Pratt, in delivering the opinion in the same case when it was in our court, said : ' ,

“ It is elementary law that to establish an easement in lands by use or prescription the occupation and use of the land must be plainly for the purpose in view under an equivocal claim, and, if not actually adverse, at least under circumstances leaving the owner at all times free to resist the invasion. The coincidental use by the public of a private way which the owners maintain primarily for their own convenience is permissive or by license, and lacks the essential characteristics of the use required to work a presumption of grant or title in the public for a public highway. The authorities in support of these propositions are too 'numerous for citation.”

In the case of Lewis v. N. Y., L. E. & W. Railroad Co., 123 N.Y. 496, 503; 34 St. Rep. 373, the court of appeals unanimously affirmed the same doctrine, and in respect to it used the following language:

“We have recently determined what facts constitute a public highway, within the meaning of the statute relating to user. Speir v. New Utrecht, 121 N. Y. 420; 21 St. Rep. 414. We there held that it must have been traveled by the public for 20 years, and either kept in repair by, or taken in charge by, the public authorities.”

Moreover, the character of the land over which the way in question passes forbids the indulgence of any presumption of a right by prescription, and prevents the acquisition of any right by the public by mere use of the road. In Angel on Highways (section 151) it is laid down as elementary law that where the road, which1 had been in existence for more than 50 years, had originally passed through woodland, the mere use would be insufficient to constitute it a public road. The ground for the distinction is that, where the land is inclosed and cultivated, the mere use is an invasion and a trespass; but where it is woodland those who travel it commit no trespass until after notice to-desist, and subject the owner to no loss or inconvenience. To prohibit such use would be considered churlish, and would be ineffective unless constant watch were kept of the premises. In the case Hutto v. Tindall, 6 Rich. Law, 396, the doctrine was laid down by the court of appeals of the state of South Carolina, as follows:

‘As the presumption of a grant of way by the owner of the land arises from the exercise of a privilege adverse to his right of property, and from his acquiescence in the exercise .of the privilege, the presumption will hot be supported if the use of the way does not infringe on his rights, nor conflict with his enjoyment of his property. A distinction must therefore be observed between the claims of a way through inclosed and cultivated land and way over uninclosed woodland. * * * Merely passing over uncultivated and uninclosed forests, which is common to every one, cannot, by any lapse of time, give a right to any individual. The presumption of a grant of way should be restrained by r.ules of evidence which may prevent its insidious operation.”

The facts of this case bring it fairly within the law so announced. Such is the well-established doctrine, and a full and careful examination of this case conducts us to the conclusion that the road in question never was a public highway, that the judgment should be reversed, and a new trial granted, with costs to abide the event


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Frederick Hoch, App’lt, v. James R. Cocks, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Specific performance—When denied.
    Specific performance will be denied where it will be inequitable and unjust.
    Appeal from a judgment dismissing the complaint on its merits.

      George Finch, for app’lt; John P. Kirby, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on a report of a referee dismissing a complaint upon the merits. The relief prayed for was a specific performance of an alleged contract for the sale of real estate. It is conceded by both parties that the defendant cannot give title, as he is not the owner in fee, but only oyvns an undivided one-half interest in the property. Whether specific performance shall be decreed is largely a matter of discretion with the court, and the rule is to deny it where such a course will be inequitable and unjust. In this case it is admitted that the land is worth $2,500, and the claim of the plaintiff is to have it decreed to him for only $500. I have thus far assumed that there was a valid legal contract proved for the sale, as claimed by the plaintiff. The referee, however, has found upon conflicting testimony that no such contract was entered into, and we think this conclusion is supported by the evidence. The vital point is that the minds of the parties never met upon quantity and description of the land in questi in. This is evident from the price fixed upon, and the testimony of the parties. The land was unfenced. Ho survey was made, and no fixed boundary agreed upon. The decree below allowed the plaintiff to recover the money he had paid, which was all he could justly do under the facts disclosed. Margraf v. Muir, 57 N. Y. 155. Judgment affirmed, with costs.

All concur.


author: Dykman, J.

text:
    Joseph Husson, App’lt, v. Albert I. Sire, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Assumpsit—When lies.
    Where, upon the sale of real estate, part of the purchase money was retained by the vendee, at the suggestion of his attorney, for the purpose of satisfying certain incumbrances, the vendor cannot maintain an action against such attorney for the portion of such deposit remaining after the removal of such liens.
    Appeal from a judgment in favor of the defendant.

      Jos. Husson, in pro. per. (Dennis McMahon, of counsel), for app’lt; Albert I. Sire (William L. Stone, Jr., of counsel), for resp’ts.
   Dykman, J.

This is an action for the recovery of money, and the claim of the plaintiff arises out of the following facts: In the month of April,. 1886, the plaintiff and the defendant Oppenheirner made an agreement for the exchange of real property. The plaintiff agreed to transfer certain real property in the city of Brooklyn to the defendant Oppenheirner; and the latter agreed; in consideration thereof, to transfer Certain property in the city of New 'York to the plaintiff. The defendant Sire is a lawyer, and was the attorney for Oppenheirner in this transaction. The parties met at the office of Sire in May, 1886, to deliver the deeds and close the'transaction, when Sire stated that a search against the property of Husson revealed the fact that the same had been sold for water taxes in the city of Brooklyn. Husson insisted that the sales were not incumbrances, but he agreed to leave $450 of the money coming to him under the transaction as a security against any liability which might attach to the property by reason of such sales. Husson, in his testimony, says this: “ There was coming to me on the transaction $3,594.45. They took out $450. That left $3,144.45. And there was an item of $55.85. That left $3,088.60, which was paid,—$844.45 in a check, and the balance of $2,244.15, "in cash.”

It=thus appears that Husson paid no money to any one, and the legal effect of the transaction was to leave $450 in the hands of the defendant Oppenheirner, to secure him against any liability which might arise under or by reason of the sales for water taxes. No money was paid for the cancellation of the sales, but there was $148 paid in settlement of a suit against Oppenheirner. Upon the trial the complaint was dismissed, as against the defendant Sire, and the jury rendered a verdict in favor of the plaintiff against the defendant Oppenheirner. The plaintiff has appealed from the judgment of dismissal, and so the only question presented here is whether the defendant Sirq is liable to the plaintiff for the money so retained when the transaction was closed. It must be borne in mind that Sire received no money, and entered into no "agreement in respect to its retention by Oppenheirner. As he did not receive the money, the law imposed no liability upon him for its payment.' The only legal obligation for its payment rested upon Oppenheimer. He had retained so much of the purchase money, or, rather, money due upon the exchange of the property. Under the agreement with the plaintiff, he was authorized to use it all, or so much as was necessary, to discharge the incumbrance. If he did not so use it, he was under obligation to pay it to the plaintiff. Such was the decision and ruling of the trial judge, and the jury gave the plaintiff a verdict against Oppenheimer. There is no legal principle that will impose liability upon the defendant Sire, under the facts of this case; and the judgment must he affirmed, with costs.

All concur.


text:
    Daniel S. Jones, Resp’t, v. Edward J. Newell, as Administrator, etc., et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    'Trusts—Abolition.
    A provision, in a trust, that the trustee-may apply as much of the trust fund to his personal use as he may find necessary, does not abolish the trust.
    Appeal from a judgment dismissing the claim against the estate.

      John M. Zurn, for app’lts; Olcott & Olcotl (W. M. K. Olcoit, of counsel), for resp’t.
   Pratt, J.

The appellants contend, upon the authority of Floyd v. Fitcher, 38 Barb. 409, and other cases, that the bequest of personal property to Callahan, with a limitation over to his daughter, vested in him the whole estate, and that the limitation over was void for repugnancy. However this may have been had the bequest been to him primarily for his own benefit, and without the suggestion of a trust, it is not necessary to determine, for the bequest is made to Callahan, “in trust, however, and for the benefit” of the daughter. Appellant’s counsel argue with great ingenuity that the permission given the trustee to apply such portion of the trust fund to his personal use as he might find necessary, without accountability, was equivalent to an abolition of the trust We do not think this can be held. The testator cannot be supposed to have contemplated that the confidence would be abased, and, if not abused, the trust was not endangered, as the result well illustrates. On the whole case we are of opinion that the judgment must be affirmed, but without costs.


text:
    Anthony Klemm, as Administrator, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Pleading—Amendment.
    An amendment, which neither introduces a new cause of action, no® changes the old one, is properly allowed upon the trial.
    '3. Damages—Excessive.
    A verdict for $5,000 was held, in this case, to he excessive.

      Appeal from a judgment entered on a verdict in favor of plaintiff.

      Aslibel Oreen (A. S. Gassedy, of counsel), for app’lt; William D. Dickey, for. resp’t.
   Dykman, J.

But two questions are presented to the court by this appeal. The first relates to the amendment of the complaint during the trial, and the other- to the amount of damages.

Upon the trial the complaint was amended, by the permission of the court, by the insertion of these words; “And that her husband and son sustained pecuniary damages, by reason of her death-, in the sum of $5,000.” The amendment neither introduced any new cause of action, nor changed the old one. It was, therefore, such a one as might be made upon the trial; and, although the counsel for the defendant expressed surprise, yet no delay was requested, and we find.no error in the allowance of the amendment.

The verdict was for $5,000, in favor of the plaintiff,; and upon its rendition the counsel for the defendant moved to set it aside, as excessive. That motion was denied, and there was an exception, and that presents a very serious and embarrassing question. There is no standard, and no measure, for the verdict, in this class of cases. There is a limitation of its size, but the only guide for the jury in making it, in case of death, is the provision of the statute which authorizes the action, that the damages to be recovered shall be “ a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” Code Civ. Proc. § 1904. What is a just and fair compensation for the pecuniary injury in a given case can be determined by no rule, because each case presents a different state of facts, either in the character, capacity, and condition of the deceased, or in the age, sex, circumstances, and condition of the next of kin, and all those elements are to be considered as a basis for the allowance of damages. Lockwood v. N. Y. L. E. & W. Railroad Co., 98 N. Y., 526. Appellate courts usually hesitate about interfering with verdicts of juries, and failure to interfere is doubtless many times the product of such hesitation. In this class of cases, as we have already seen, the elements furnished to the jurors enable them to do no more than make an estimate of the damages; and such estimates are problematical, at best. It was the design of the legislature, in the enactment of this law, to furnish a remedy unknown to the common or civil law. The theory of the statute is that the next of kin have a pecuniary interest in the life of the person killed, and the value of that interest is the amount of the pecuniary injury for which the statute provides compensation. It treats human life in a pecuniary aspect, and permits compensation for the same at its pecuniary value. It presupposes a pecuniary loss in the deprivation of a valuable life. It accomplishes its most useful purpose when it is utilized for the recovery of damages resulting from the death of a man who has a wife and children dependent upon him for their support. Indeed, when the statute was made, in 1847, and even when first amended, in 1849 (Laws 1847, p. 575; Laws 1849, p. 388), the recovery was for the benefit of the widow and next of kin; and the husband was not named as one of the beneficiaries until the law was amended in 1870 (Laws 1870, p. 215), thus showing that the widow and children were the first objects of the solicitude and care of the legislature. They were generally left in a helpless condition, and their loss of a husband and father, upon whom they were dependent, would be greater to them than the loss of a mother and a wife to a son and husband able to care for themselves. Protection against excessive or insufficient damages can only be afforded by the courts. They are a portion of the machinery employed in the administration of the statuté, and they cannot abdicate their functions. In this case the husband has been a soldier in the army of the United States, but is now out of the service, and is in Germany. He is about sixty-five" years of age, and his deceased wife was about fifty-four. They had but one son. He is a physician, about thirty-five years of age, and living away from his father’s bouse. The deceased was a vigorous, healthy woman, a good worker, and did her own housework. Such are the elements furnished for the estimate of the pecuniary injury resulting from the death of the deceased, and it is evident at once that there is nothing to show that the son has sustained any pecuniary injury by the death of his mother. It does not appear that he received any pecuniary aid from her, and no inference of that kind can be drawn from the. testimony in the case. The pecuniary injury of the husband consists in the loss of a wife, who was his housekeeper; and the elements of this damage are the loss of his wife’s services, the expenses incident to and resulting from the injury, and the loss of her society. Cregin v. Brooklyn Crosstown Railroad Co., 83 N. Y. 599. In view of all the circumstances, we think the verdict is excessive, and that the facts will not justify a verdict beyond $2,500. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates to reduce 'the verdict to $2,500, in which event the judgment will be affirmed for that amount, without costs.


author: Brown, P. J.

text:
    John Lynch, App’lt, v. Village of New Rochelle, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Negligence—Street—Driver.
    The fact that the driver sat upon the left hand side of the wagon-seat, opposite the hole which occasioned the injury, is not necessarily evidence of negligence.
    2. Same—Grossing railroad track. *
    It is not negligence in law to attempt to cross a railroad track in a diagonal direction instead of at right .angles.
    . 3. Same—Contributory—Question of fact.
    When the contributory negligence of the person injured in street should be submitted to the jury.

      Appeal from a judgment entered on an order dismissing the complaint.

      Isaac K Mills, for app’lt; Calvin Frost, for resp’t.
   Brown, P. J.

This action was to recover for personal injuries received in being thrown from a wagon while driving in the defendant village, and which were alleged to be due to a defective highway. The complaint was dismissed, on the ground of the plaintiff’s negligence. The condition of the highway was not contested, and there was ample evidence from which the jury might have found that its defective condition was due to the-defendant’s neglect. I am of the opinion that the case was, in all its aspects, one for the jury, and that the court erred in dismissing the complaint.

The accident occurred on Washington street. There was a railroad track through the street, and upon the north side, for 100 feet from Webster avenue, there was a covered drain, having its eastern end open for the water to enter it. The road descended towards the mouth of this drain, and near to it the water which flowed down the street in large quantities had washed out a large part of the street between the track and the north sidewalk, making a deep hole. The plaintiff was in a one-horse buggy, in company with a lady, who was driving. They were upon the north side of the street until they reached a point near the washout, when they attempted to cross the track in a diagonal direction. The left front wheel slid along the track, and the wagon went into the hole, upsetting it, and throwing the plaintiff and his companion out, and inflicting injuries which were the subject of this action. Theu horse at the time of the accident was upon a walk, and I fail to see how, under the circumstances, any lack of care is imputable to the driver. There is nothing to indicate that she was not a competent person. The plaintiff said she had horses of her own, and was accustomed to and knew how to drive. The fact that she sat upon the left hand side, opposite to the hole, is not necessarily evidence of negligence. Under the rule requiring travelers meeting on a highway to turn to the right, that is regarded by many persons as the proper side for the driver to sit upon.

It cannot be held to have been negligence in law to have attempted to cross the track in a diagonal direction instead of at right angles. That was a question of fact which the jury should have been permitted to pass upon.

The judgment should be reversed, and a hewv trial granted, with costs to abide the event.


text:
    In the Matter of the Application for Probate of the Will of Magdalena Brommer, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Will—Probate.
    Probate will not be refused, where the testatrix was a fairly intelligent person and gave instructions intelligently^ to her counsel, who read the will to her, explaining each clause, and receiving intelligent and consistent answers from her, though it appears that she was somewhat deaf and not very familiar with the English language.
    Appeal from a decree admitting the will to probate.

      Miller & Miller (Jacob F. Miller, of counsel), for app’lts; George F. Martens, for resp’ts John Brommer and Frederick Brommer, Thomas J. Farrell, for resp't Helena Hoffman; Henry D. Van Or-den, for resp’ts Rebecca Ridderhoff and others.
   Pratt, J.

I have been much entertained with the ingenious and admirable presentation of this case by the appellant, but, upon careful reflection, it seems to me that the reason assigned by the learned surrogate for his conclusion to admit this will to probate are entirely satisfactory. The will is dated and was executed May 8, 1879,—18 years before the death of the testatrix. The proofs show that the draughtsman had been counsel for the husband of the testatrix, and drew his will. He bad been counsel for her husband’s executors. His professional relations with the family had been continued. It was therefore natural that she should send for this lawyer when she determined to make a will herself. True, he had not seen much of testatrix, herself, after her husband's death; but there is no evidence that she bad any occasion to confer with counsel in the mean time, or that she ever saw any other counsel for any purpose. It is therefore apparent that no inference of fraud or undue influence should be drawn from the fact that this lawyer was selected. The choice of counsel seems to have been her own. She evidently'determined for herself to make a will When the counsel came to her, she stated the business on hand herself, and gave her own instructions to him. After receiving the same, he made an appointment to call at her house to execute the document, and instructed her that she must provide witnesses for that purpose. When the draughtsman came with the draught, he found that two witnesses were present, evidently chosen and invited by her. It does not appear that she personally requested the attendance of the two witnesses, but one of them (Mr. Bremer) testified that when he arrived the testatrix herself told him “to come as a witness.” The other witness (Mr. Ring, since deceased) was present when Mr. Bremen arrived. He was about 62 years of age, and was in good health. Mr. Bremer had formerly lived in the family with testatrix and her husband, and had been a clerk for her husband in his grocery business. After the paper was executed, it was delivered to the draughtman, who took and kept it for her. She subsequently spoke to others of the fact that she had made a will, evidently referring to this occasion and this paper. It is therefore plain that she began and carried out this business understandingly,—so far at least, as the matter of making a testamentary disposition of her property was concerned, and selecting natural agencies to carry out her purposes. It also appears that the will was executed with all due formality. She thereafter lived for some thirteen years, conscious of the fact that she had made a will; and none of the contestants seem, to have raised any question of her capacity,' although some of them knew that she had made a will.

The next question relates to her' knowledge of the contents of the document. On this point there was rather more than the ordinary amount of proof. The paper was read over to her by the draughtsman, who was one of the witnesses, in the presence of the other two witnesses, whom she had herself selected for that purpose,—Mr. Bremer and Mr. Eing. There is not the slightest suggestion that the document was not fully and fairly read to her. Indeed no-motive is suggested for any fraud or imposition in this respect. The only suggestion of want of knowledge of its provisions on her part is predicated in the allegations—First, that she did not understand the English language; and, secondly, that she was too deaf to understand what was read to her, even if she had been able to understand the language. On the first point,—tier alleged ignorance of the language,—there certainly was evidence that she 'spoke English, and understood the speech of others when they spoke English. True, there were some suggestions in the evidence to the contrary ; but it is sufficient to say that there was fair conflict of evidence on this point, and therefore the finding of the learned surrogate ought hot to be disturbed. The second point is met by a like condition in the proof. There certainly was - evidence that, while this testatrix was hard of hearing, she nevertheless could hear what was said to her when people spoke with their lips from six to twelve inches from her ears, and in fairly loud tones. One witness, as the result of considerable experience with -her, testified that when she spoke in ordinary tones, near to her ears, she seemed to understand better than when she spoke loudly. She attended to her ordinary duties about the time of the execution of this paper, receiving communications in that way in relation to everyday affairs of life; answering and otherwise acting intelligently. Mr. Martens, the draughtsman of the will, and Mr. Bremer, the survivor of the two witnesses invited by the testatrix, each testified that the former read over the will, clause by clause,- pausing occasionally to make explanations, as he read; that he spoke loudly, with his lips within about 12 inches of her ears ; and that her answers were intelligent and consistent. There wasjherefore sufficient evidence to sustain the findings of the learned surrogate that she heard the contents of the will read, and understood the explanations, and there certainly was no such weighty mass of evidence to the contrary as to justify us in overuling his conclusions on this questioh of fact.

We thus reduce this case to the simple question whether or not this paper attests such an unnatural disposition of property as, of itself, to indicate undue influence from somebody. It seems to me that this question is pretty much answered by what lias been already said. This lady was a fairly intelligent person, who knew what she was about; who intelligently gave her own instructions to counsel of her own selection, and there is no question but that they were fairly expressed in this document. It is of no moment that counsel could not, as a mere act of memory, recall the details or substance of thó conversation in which the instructions were given, independently of the will itself. That was not remarkable, after the lapse of 13 to 15 years. Indeed, it would have been more remarkable if he had undertaken to detail such conversations after such a lapse of time. He was intrusted with the custody of the document for safe-keeping, and hence there was a special occasion why he should have preserved his memorandum of the original instructions. Under these circumstances, the paper attests her will; and neither courts nor individuals have a right to speculate upon the reasons why she chose this or rejected that relative as an object of her bounty. Taking the whole case together, I think the evidence showed that this lady possessed fair testamentary capacity ; that she clearly understood the contents of the instrument, and freely executed it. Under these circumstances we ought not to interfere. The decree of the surrogate should therefore be affirmed, with cost of the appeal against the adult contestants but not against the infants.


text:
    In the Matter of the Application of Thomas F. Gilroy, etc.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Condemnation proceedings—Award—Vacation.
    To justify a court in setting aside the award of commissioners in a condemnation proceeding, it must he so inadequate a,s to afford evidence of partiality, fraud or undue influence.
    Appeal from an award of damages.

      Bangs, Stetson, Tracy & Me Veagh, for app’lt; Wm. H. Glark, for resp’t.
   Pratt, J.

This proceeding was instituted under chapter 490 of the Laws of 1883, commonly known as the “Aqueduct Law,” to acquire land in Westchester county for a storage reservoir. Commissioners were duly appointed, entered upon.their duties, viewed the premises, heard testimony and arguments, and made a report. The only ground upon which the report is sought to be set aside is that the commissioners failed to award a sufficient amount to the appellant to afford him “ just compensation” for the property taken, and damages caused by such taking. It is to be observed that it is not claimed that there is any irregularity in11 the proceeding, or that any legal principle has been violated, but simply that, upon the proofs, the award is insufficient in amount. The evidence is conflicting, no two witnesses fully agreeing as to a proper amount; but the report in no respect is lower than the sum fixed by any witness who testified to the lowest amount, or, in other words, the report is at a sum between the highest and lowest estimates; so that, as sometimes said of a verdict,' it is supported by the evidence. But it must be recognized that the commissioners were not entirely bound by the oral testimony. They saw the property, its location and capabilities, and their report must stand', unless it is apparent that the sum awarded is so grossly inadequate as to afford evidence of partiality, fraud,' or undue influence. It must appear that the award is grossly inadequate, to justify a court in setting it aside. The rule is well settled that, except in extreme cases, an appellate court will not set aside an assessment unless the same is clearly proved to bq grossly inadequate, or that the commissioners fell into some error in their estimates, or adopted some erroneous principle. Because the land owner may have more witnesses is not sufficient to overcome the opinions of the commissioners. In re Central Park Extension, 16 Abb. Pr. 56; Railroad Co. v. Lee, 13 Barb. 169. Under well-settled principles, the order appealed from must be affirmed.


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    In the Matter of the Judicial Settlement of the Accounts of Albert Payne et al., as Executors, etc.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    EXEOTJTOBS—INVEHTOBV.
    An item put in an inventory by mistake, may be stricken out' after the inventory is verified. ,
    Appeal from a decree settling the accounts.

      Wilmot M. Smith, for app’lts; T. M. Griffing, for resp’t.
   Pratt, J.

The contestants herein seem to rely mainly upon the statement that the note in controversy was returned in the inventory as part of the estate of the deceased, and was sworn to as such. But this is not true, as a matter of fact. On thé other hand, it clearly appears that this item was stricken from the inventory before it was filed. It is said it was sworn to before it was amended by striking out this item, and hence it must be regarded as conclusively to be an asset of the estate. If, however, it was put in the inventory by mistake, it was proper to make the correction, and it was done. The weight of evidence seems clearly to show that the testator intended to give one-half of the property which he conveyed to him on Oxford street, reserving only the interest on one-half of the purchase money. This is proved by the written agreement, as well as the declarations of the testator./ It is a just inference that the mortgage was satisfied, and the note in question given to carry out said agreement to pay the testator the interest during life. Such a theory is the only one consistent with all the facts. The testator, so far as appears, was a man of small means, comparatively; and if he had advanced $2,000, for which the note was given, it seems incredible that some one of the family should not be aware of the fact, and able to explain or prove the transaction. We think the fair inference is that the note, although absolute in form, was given simply as security for performance of the obligation to pay interest during the lifetime of the testator, and that the same was, in legal'effect, canceled at his death. For this error the decree must be reversed, with costs.


author: Brown, P. J. Dykman, J.

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    In the Matter of the Probate of the Will of Mary Snelling, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Wills — Capacity—Insanity.
    A testator, who understands the nature and condition of his property and the disposition he makes of it, has testamentary capacity, though insane at times.
    Appeal from, a decree admitting will to probate.
    A R. JBecJcley, for app’lts; Thomas Young, for resp’ts.
   Brown, P. J.

When this case was before the court of appeals on a prior appeal, the conclusion of the surrogate that the will was not the product of undue influence, and that the decedent possessed the necessary testamentary capacity to execute it, was not disturbed. The decree then before the court was reversed for the erroneous admission of improper testimony. Some new testimony was introduced upon the last hearing, but, after a careful examination of the whole case, I do not think it is changed in any essential feature from that presented on the first appeal. The evidence would not permit the conclusion that Mr. and Mrs. Cook exerted any undue influence upon Mrs. Snelling. The important question is whether she possessed testamentary capacity. That her mind was weak, and that she was at times insane, is clearly shown; but the periods of her insanity were generally of short duration, and existed when she was sick. When she recovered from her sickness, her mental powers returned, and she was capable of taking care of herself and her property. The will in question was executed on June 24, 1890. For about a year prior to that date, she had resided with Mrs. Dentón; and her mode of life, and her physical and mental condition, during that period, have been fully described by that witness. During that time she had no sickness requiring the attendance of a physician, and her memory was fairly good, and she attended to and transacted her own business. She appears to have understood the nature and condition of her property, and the disposition which, by will or otherwise, she had made of it. She was during this time a near neighbor of Mr. and Mrs. Cook, and on terms of intimacy with them, and regarded and treated them as her nearest friends. The weight of evidence is in favor of the conclusion that when she executed the will she understood the nature and character of her act, and comprehended its consequence, and the determination of the surrogate that she was competent to execute the instrument cannot be disturbed. The decree must be affirmed, with costs to be paid by the contestants.

Dykman, J.

I am in favor of affirmance, but I think the costs had better be paid from the estate. There was some justification for the contest.

Pratt, J., concurs in affirmance; costs to be paid out of the estate.


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    Frank Montverde, Resp’t, v. The Board of Supervisors of Queens County, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Contract—Substantial performance.
    Where the contract price of work is §21,700, and all has been done except some trifling matters which can be completed for §154, the contract is substantially performed.
    Appeal from a judgment in favor of plaintiff.

      John Fleming, tor app’lt; Benjamin W. Downing (W. T. B, Millihen, of counsel), for resp’t.
   Pratt, J.

The determination of this cause depends largely on the question whether the plaintiff substantially performed his contract. That is ordinarily a question of fact. The contract price of the work was $21,700, and the referee finds that all the work stipulated for was .done, with the exceptions of some small matters, which could be completed for $154. ' The testimony abundantly supports that conclusion. It appears that the engineers of the county were in constant attendance while the work was in progress. It was done under their supervision, and the chief engineer certified to the county, before this action was commenced, that the road could be completed according to the contract for the sum of $501. At that time the plaintiff had done work for which he was then entitled to receive about $3,500, being the balance of 80 per cent, he had a right to draw as the word progressed. He urged the payment of this, and offered to complete the work. The defendant refused to pay him. By that breach of their duty plaintiff was authorized to bring his action for the work already done. The contract was substantially performed. Had it not been, the plaintiff would be entitled to recover for the work so far as done, as a consequence of defendant’s refusal to pay as required by the contract.

Judgment affirmed, with costs.


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    Julia Mullins, as Administratrix, etc., Resp’t, v. The Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Service of process—Corporations.
    Service of a summons against a life insurance company may be made upon its local superintendent, within the provisions of § 431 of the Code.
    Appeal from an order denying a motion to set aside the service of a summons.

      Arnoux, Riich & Woodford (Wm. H. Arnoux and John McQ. Qoodale, of counsel), for app’lt; William Riley, for resp’t
   Pratt, J.

The justice had evidence before him which justified him in finding that Skidmore was a managing agent of defendant, and his decision is binding upon us. We think that the duties of Skidmore, as set forth in the manual of defendant, quoted in appellant’s points, are sufficient to sustain the finding. “As superintendent, you have general supervision of the business of your district.” An agent who has general supervision of a business is a managing agent. The district in which the powers are exercised may he limited, but the powers are general. Bain v. Globe Insurance Co., 9 How. Pr. 448; Palmer v. Pennsylvania Co., 35 Hun, 370; Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 48 id. 190; 15 St. Rep. 686; Barrett v. American Telegraph Co., 31 id. 465; 10 N. Y. Supp. 138; Brayton v. N. Y., L. E. & W. R. Co., 54 St. Rep. 763 ; 25 N. Y. Supp. 264,—are in point, and sustain the conclusion. Judgment affirmed, with costs.

Brown, P. J., concurs; Dykman, J., dissenting. See opinion in Stubing v. Insurance Co., post.


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    Mutual Life Insurance Company of New York, Resp’t, v. Darius C. Newell et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May, 14, 1894.)

    Mortgages—Taxes.
    The right of the mortgagee to protect his interest by payment of taxes is not affected by the merger of the bond and mortgage in a judgment of foreclosure.
    Appeal from an order amending the judgment of foreclosure ao as to include taxes paid by plaintiff after the judgment was entered. c

      R. E. & A. J. Prime & Burns, for app’lt Albert 0.. Benedict; Miller & Wells {James A. Briggs, of counsel), for resp’t.
   Pratt, J.

The right' of the mortgagee to protect his interest by payment of taxes, which become a superior lien, depends not upon the covenants in the bond or mortgage, but upon the general principles of equity. It follows that the merger of the bond and mortgage in the judgment has no effect upon the right The general powers of the court are ample to make such corrections in the judgment as the changed conditions render necessary. We observe that a small amount paid by the mortgagee for insurance against fire was allowed at special term. The order appealed from should be modified by striking out the sum allowed for insurance, and, as thus modified, affirmed, with costs.


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    Thomas Neill, Jr., App’lt, v. Order of United Friends, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Insurance—Lies—Mutual benefit.
    A by-law, which provides that a member of a benefit society shall receive the benefit if disabled from following his " usual or some other occupation,” entitles him to a benefit, if disabled merely from following Ms usual occupation.
    Appeal from a judgment dismissing the complaint

      W. F. O’Neill, for app’lt; Hackeit & Williams,for resp’fe
   Brown, P. J.

This action was upon a certificate of membership in the defendant corporation, which provided that “ Thomas Neill, Jr., * * * is a beneficiary member of the Order of United Friends, and intitled to all the rights and privileges of such membership, and a benefit of not exceeding three thousand dollars from the relief fund, which sum shall at death be paid to his wife,” etc. By the by-laws of the order it was provided that “ should a member become permanently disabléd from following his or her usual or some other occupation, by reason of accident or disease,”,,he was entitled, after examination, and upon approval of his application by certain officers named, to one-half the amount of his relief fund certificate, to be paid to him, and deducted from the total benefit due at death. The plaintiff was a brakernan in' the employ of the Ontario & Western Railway, and was pushed from, his train by a tramp. His foot was crushed by the cars, and afterwards amputated, rendering him thereafter unable to follow the work of a brakernan. He was out of work for four months, and was then given employment by the railway company in watching a tower, and after that in watching a milk car in Weehawken. It was stipulated by the parties that, at the time of the injury and ever since, the assessments levied by the defendant were sufficient to pay the plaintiff $1,500. The complaint was dismissed at the close of plaintiff’s evidence, upon the ground that the loss of plaintiff’s foot did not disable him from allowing his usual or some other occupation.

It would seem as if the language of this provision must have been chosen for the purpose of raising disputes as to the right of a beneficiary to recover, rather than to make plain the intent and meaning of the contract. If the intention was to afford an insurance during the life of a member only in case of his inability to perform his usual and all other occupations, the contract should have so stated. But the expression “ some other occupation ” is not the equivalent of “all other occupations.” And if it was intended to provide a benefit fund only in case a member was disabled so that he could not follow any occupation, it was wholly unnecessary to make any reference to his usual occupation. It would rarely happen that a person would be disabled so that he could not follow some occupation ; yet, if the meaning of the provision is as claimed by defendant, the ability to work at any employment, no matter how trivial it was, would defeat a recovery. In construing such a provision in a contract as the one under consideration, the court will give it such meaning as will be consistent with the fair import of the words used, having reference to the purpose and object of the parties in entering into the agreement, and as the language is that of the defendant, a construction will not be adopted which will defeat a recovery, if it is susceptible of a meaning which will permit one. The expression quoted from the by-laws admits of two meanings —one which treats the disability as a condition which would render the beneficiary unable to work, and the other which treats the occupation as the source or occasion of the disability. The intent of the parties, as manifested by the last reading, would be that a member would be entitled to the benefit fund provided that the accident or disease which eaused his disability arose from, his employment; that is, if the accident happened, or the disease had its source, in his occupation. In other words, it refers the disability to the occupation, and makes its source the test of the company’s liability. As the accident which caused plaintiff’s liability happened while engaged in his usual employment, his case falls within this construction of the contract Under the other reading, the source of the accident or disease causing disability is of no importance. Inability fco labor is made the test of liability, and the member becomes entitled to the benefit fund provided he is unable to follow his usual occupation or some other occupation. The defendant reads this sentence as if “ or” was “ and,” and “some other” “all other.” It cannot be so construed. The word “ or ” creates two cases in which the member may become entitled to the benefit fund. Who would be included in the second class of cases we need not now determine. When a member, who is permanently disabled from following some occupation other than his usual occupation, asserts a claim to the fund, the expression 11 some other occupation ” will be construed and given its proper place in the contract, It is sufficient, for the present occasion, that the plaintiff is unable to follow his usual occupation. That fact brings his case within the contract Under either reading, therefore, of the condition of the contract in question, the plaintiff’s case, as made by the evidence, falls within it. He has'lost a limb, which is a permanent disability. The loss renders him unable to follow his usual occupation, and its loss was by reason of an accident which happened while engaged in following his usual occupation. We are of the opinion, therefore, that the case was for the jury. The judgment must be reversed, and a new trial granted, costs to abide the event

All concur.


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    Simon Newman et al., App’lts, v. John Wilson et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Appeal—Conflicting e vide sob.
    Where the charge is fair, clear and unexceptionable, a verdict upon conflicting evidence is conclusive.
    Appeal from a judgment in favor of defendant on a counterclaim.

      Benjamin Patterson and George Bell, for app’lts; Byram L. Winters, for resp’ts.
   Pratt, J.

This is an appeal from a judgment entered on a verdict of a jury, and from an order denying a new trial There seems to have been no exception taken, however, to the denial of the motion for a new trial; but that is immaterial, as there was no merit in the motion, and we should affirm the order even if there had been an exception. The action was for the price of vinegar sold and delivered to defendants, which they used in their business, and the jury allowed the plaintiffs the price of it in this verdict. The de» fendants set up a counterclaim for damages for a breach of warranty, which was sustained by the jury, and judgment was thereafter rendered in favor of the defendants. The evidence was conflicting, and the charge was fair, clear, and unexceptionáble, and, under such circumstances, the verdict is conclusive. There is nothing in the case to show that the verdict was not an intelligent and honest exercise of judgment upon all the facts and circumstances of the «case.

'The appellants complain of the amount of the verdict, in that defendants are given double damages. The answer to that is that such is not the fact. With the plaintiffs’ consent the judge made a list of the items of the defendants’ claim for damages, and gave it to the jury as they went out to deliberate upon the verdict, and they returned a verdict for a sum less than that claimed by the defendants. If the list was incorrect, or if it contained any claim which ought not to have-been submitted to the jury, the appellants should have had it corrected, or taken an exception.

As to the warranty and the rule of damages, the judge charged according to well-settled rules of law, to which no exception was taken. '

Judgment affirmed, with costs.


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    New York City Suburban Water Company et al., Resp’ts, v. Joseph Bissell et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed, May 14, 1894.)

    Injunction—Final decision—Liability on bond.
    The reversal of an order granting temporary injunction, upon a stipulation amounting to a voluntary conditional discontinuance of the action, is a final decision against the plaintiff so as to render him liable on the injunction bond. t
    Appeal from a judgment in favor of plaintiffs.

      Alberius Perry, for app’lts; John B. Gleason, for resp’ts.
   Brown, P. J.

Judgment was recovered against the defendants upon an undertaking given as security upon the issuing of an injunction in an action in which Duncan F. Cameron and another were plaintiffs, and the plaintiffs herein were defendants. The only question presented upon this appeal is whether there has been a final decision that the plaintiffs in that action were not entitled thereto. The general term reversed the order granting the injunction, and the order of the general term was affirmed by the court of appeals. Cameron v. N. Y. & Mt. Vernon Water Co., 133 N. Y., 336; 45 St. Rep. 212. Before the appeal from the order- was .argued in the court of appeals, and after the case had been noticed for trial, the parties entered into a stipulation ■ adjourning the trial until after the decision of the court of appeals, and providing that, if the order of the general term was affirmed upon its merits, the complaint should be dismissed, and the -judgment recite that plaintiffs were not entitled to the injunction. Accordingly, upon presentation to this court of the remittitur from the court of appeals, a judgment was entered in accordance with the stipulation and a reference ordered to ascertain the damages to secure the payment of which the undertaking was given. The referee having made his report, and the same having been confirmed, this action was commenced. The judgment entered pursuant to the stipulation is as binding upon the defendants as though it had been recovered upon a trial; and, in the. absence of evidence of fraud or collusion, it is conclusive upon them. Conner v. Reeves, 103 N. Y., 527; 4 St. Rep., 216; Steinbock v. Evans, 122 N. Y., 551; 34 St. Rep. 138. Orders vacating an injunction and discontinuing an action, whether entered voluntarily by the plaintiff, or after leave granted by the coui’t upon his application, are, in effect, a determination that plaintiff was not entitled to the injunction granted. Pacific Mail Steamship Co. v. Toel, 85 N. Y., 646; Amberg v. Kramer, 29 St. Rep. 758; 8 N. Y. Supp. 821. The stipulation under consideration here was, in effect, a voluntary, conditional discontinuance of the action by the plaintiff The right to the temporary injunction involved the merits of the case, and that was recognized by the parties. Hence, the argument that, if the order of the general term was affirmed on its merits, the complaint should be dismissed upon the merits. It would have been manifestly a waste of time to have tried the action after the decision of the court of appeals.

The appellants have cited many cases which they claim decide that, where an action has been discontinued by agreement, there is no liability upon the undertaking. None of them are applicable to the facts here presented, but all are distinguished from the cases I have cited by some fact existing which takes them out of the rule governing a voluntary discontinuance by the plaintiff. The stipulation here was not a settlement of the action. It contemplated its continuance if the order of the general term should be reversed. But it recognized that a question of law, arising upon the construction of the statutes of the state, lay at the foundation of plaintiffs’ case, and if that should be decided adversely to their contention the right to a judgment was destroyed, and it would be useless to try the action; and so it was agreed that, if the decision upon that legal question was against the plaintiffs’ claim, the complaint should be dismissed. The judgment entered upon that stipulation has determined that the plaintiffs were not entitled to the injunction. The judgment appealed from is affirmed, with costs.

All concur.


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    Leonard J. O’Neil, App’lt, v. Third Avenue Railroad Company, Resp’t.

      (Supreme Court General Term, Second Department,

      Filed May 14, 1894.)

    1. Witness—Credibility—Party.
    A verdict in favor of a party against the uncontradicted, if uncorroborated, testimony of the adverse party in his own behalf, will not he disturbed on appeal as against the weight of evidence.

      2. Evidence—Relevant.
    Proof of the absence of a circumstances which would naturally follow if the contention of the other party is true, is relevent.
    3. Same—Inference.
    The nonproduction of a witness, who. knows nothing of the case, does not justify an inference against the party.
    Appeal from a judgment in favor of the defendant.

      Tredwell & Gatlin (Rufus 0. Gatlin), for app’It; Hoadly„ Lauterbach & Johnson (Wm. N. Cohen and Frederick P. Delafield, of counsel), for resp’t.
   Pratt, J.

This was an action for damages for personal injuries. The material allegation in the complaint is as follows: “ That when said car slowed up sufficiently for that purpose, plaintiff started and undertook to get off, but while in the act of stepping down from said car into the street the said defendant negligently, carelessly, and recklessly started, increased, and accelerated the speed of said car.” As to the course, manner; and result of the accident the plaintiff was the principal witness in his own behalf, and he was not contradicted nor impeached, nor was he corroborated upon some vital points in the case. It is not very clear that the plaintiff was free himself from negligence which contributed to the accident, but that question was submitted to the jury under' the following words: “ This plaintiff must show you that he was free from all fault here, and that the defendant was at fault," so that, in that regard, the plaintiff had no cause of complaint. The court also said in its charge: “ Where a person is inteiested in an action, it is for the jury to say, after having heard his testimony, what credit they will give to it.” The plaintiff took no exception to the charge, and the jury were at liberty to find a verdict for the defendant upon either of the above propositions. Canajoharie National Bank v. Diefendorf 123 N. Y. 191-200; 33 St. Rep. 389. See, also, Belton v. Baxter, 58 N. Y. 411, and Hart v. Hudson River Bridge Co., 80 N. Y. 622.

The only further questions available to plaintiff to reverse that judgment are those relating to rulings upon the'admission and rejection of evidence upon the trial. The evidence of the clerk as to the rule about reporting cases, and that the office had received no report, we think was relevant, and properly admitted, when all the facts and circumstances of the case are considered. It was proving the absence of a circumstance which would naturally follow if the contention of the plaintiff was true. The exception to the ruling of the judge made at request of the defendant, “ that the non-production of a witness who knows nothing of the accident does not justify an inference against the defendant,” is too plainly right to require comment. Judgment affirmed, with costs.


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    The People, Resp’t, v. William J. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)
    Criminal law—Plea of guilty.
    Section 332 of the Criminal Code does not prohibit a conviction on a 1 plea of guilty of manslaughter in the second degree, though the indictment is for murder in the first degree.

      Application for writ of habeas corpus on the ground that imprisonment is illegal.

      Stapleton & Miles, for app’lt; James W. Ridgway, dist. att’y, for the People.
   Pratt, J.

There is no merit in the contention urged by the appellant. Section 35 of the Penal Code provides as follows: “ Upon the trial of an indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or an attempt to commit the crime so charged, or an attempt to commit a lesser degree of the same crime.” This section speaks for itself. Section 382, Code Crim. Pro., provides that no conviction shall be had upon a plea in cases where the crime is punishable by death or state prison for life. The appellant was not convicted ■of any such crime, but of one punishable for a term of years. Section 332 does not provide that a man may not plead guilty of any crime whatever, but simply that no man shall be convicted upon such a plea where the punishment is by death or imprisonment for life. The matter is too simple and plain to require argument It may be added that courts are bound to decide under well-settled rules of statutory' construction, without regard to what ■was the intention of the man who drafted the law. Order affirmed.

All concur.


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    Charles B. Pitt et al., Resp’ts, v. Samuel C. Freed, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Judgment—Foreign—Action on.
    Under § 553 of the Code, an action may be maintained in this state on the original cause of action, though a judgment has been recovered thereon in another state.
    Appeal from a judgment in favor of plaintiffs.

      Isaac N. Miller, for app’lt; J. Stewart Ross, for resp’ts.
   Dykman, J.

This is an appeal from a judgment in favor of the plaintiffs, entered upon the decision of a judge after a trial before him without a jury. The action was for the recovery of a quantity of butter sold and delivered by the plaintiffs to the defendant ; and the amended complaint charges fraud against him, in contracting and incurring the liability. An order of arrest was obtained in the action, which was vacated by the general term. Previous to the commencement of this action, the plaintiffs brought suit in Pennsylvania, where the defendant lived, and procured an attachment therein against his property. The attachment was vacated, and the plaintiffs took a judgment in that action for the price of the butter. When this cause was brought to trial, the defendant admitted the truth of all the allegations in the complaint, and consented that all the facts therein stated be found as if proven by evidence, and then moved for judgment in his favor, dismissing the complaint, because it failed to state facts sufficient to constitute a cause of action, in that it appeared therein that a judgment between the same parties for the value of the property referred to had been obtained by the plaintiff, which constituted a bar to-this action. The trial judge decided in favor of the plaintiffs, and from the judgment entered upon his decision the defendant has appealed.

The sufficiency of t,he facts to constitute a cause of action, and to justify an order of arrest in the action, is beyond doubt; but the misfortune is that the defendant has been misled by the decision of the general term reversing the order denying his motion to vacate the ordejr of arrest. A re-examination of the case satisfies us 'that this court fell into an error. The order of arrest was properly made, and its reversal was erroneous. The effect of -the judgment in a court of a sister state is now defined by § 552 of the Code of Civil Procedure, which is new ; and it was intended to settle the question, which was somewhat uncertain. That section provides that the recovery of a judgment in a court not of the state, for the same catise of action, or, where the action is founded upon fraud or deceit, for the price or the value of the-property obtained thereby, does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. The effect and operation of this section were defined by the court of appeals in the case of Baxter v. Drake, 85 N. Y. 502, where it was said of this section:

• “The provision cited clearly declares that, where a judgment has been recovered in the court of another state "for the same cause of action, the right of a party to an order of arrest is not affected. This interpretation gives the right to prosecute upon the demand,. the same as if no judgment had been obtained ; and whether the suit was upon the judgment, or upon the original cause of action, separately, is not, I think, material, and cannot affe¿t,.the right conferred, as 1 the same cause of action ’ evidently means the- cause of action on which the judgment was entered.”

To the same effect is Leach v. Linde, 73 Hun, 246 ; 57 St. Rep. 132. These authdrities justify the decision of the trial judge, and the judgment should be affirmed, with costs.

All concur.


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    George A. Quincey, Resp’t, v. Benjamin J. Warner, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Evidence—Declarations—Master and servant.
    The declarations of a servant are admissible in contradiction of his testimony.
    Appeal from a judgment entered on a verdict in -favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      Albert Ch. McDonald, for app’lt; Dailey, Bell & Grane {James D. Bell, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from. an order denying a motion for a new trial upon the minutes of the court. The-action was for the recovery of damages resulting from an injury to the plaintiff, caused by a fall through a trapdoor in a general hallway of an entrance to a building belonging to the defendant, in the city of Brooklyn. The building was occupied by various tenants, and, among others, by an insurance company, in whose employ the plaintiff was when he was injured. As the plaintiff was about to go up to the office of the company, he fell into the hole, the door being up at the time.

The decisive question upon the trial was whether the janitor, who Was the servant of the defendant, was guilty of negligence in permitting the door to be removed, or allowing it to remain off of the opening, which it was designed to cover and protect. The testimony on the part of the plaintiff was sufficient to prove want of proper care, and that introduced by the defendant was sufficient for his exculpation. It is therefore the common case where testimony on one side is adequate to impose liability, and upon the other sufficient to relieve therefrom, and thus presents a question of fact for the determination of the jury, and leaves an appellate tribunal destitute of power to interfere. There is no exception to the admission of proof of the declaration of the janitor that the accident was his fault, in part, which is not entirely free from doubt We have concluded, however, that the testimony was admissible in contradiction of his testimony, which was to the effect that he was free from fault. There was no exception to the charge as finally made.

The judgment and order should be affirmed, with costs.


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    John Raven, Resp’t, v. William R. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Appeal—Harmless evidence.
    Error in admitting incompetent evidence is cured by the subsequent ad= mission of competent evidence of the same facts.
    Appeal from a judgment in favor of plaintiff.

      J. K. Bowen, for app’lt; Frederick W. Clark, for resp’t.
   Pratt, J.

The plaintiff testified under exception that his men reported to him that they had been stopped from work, having been discharged by defendant. That did not injure defendant, for the fact of being stopped was testified to by another witness, and was not contradicted by defendant, who went upon the witness stand at a later stage of the trial. It is also objected that plaintiff was allowed to put in evidence a copy of a notice served by him on defendant; without having previously given notice for the production of the original. Such notice was given at the trial after defendant had failed to produce the original. Ho suggestion was made that defendant was unable to produce the original, or that he desired to do so. Nor did he, when upon the witness stand, deny receiving the notice. It is plain that defendant was not injured by receiving the copy in evidence. It appears that at the time the verbal contract was made a Mr. Fair-child was present, who made minutes of the conversation. Neither asked him to produce his minutes, although he was examined as a witness. Had théy been produced, it may well be that we should be better satisfied with the proof. But the parties elected to go to the jury upon their own testimony, and the verdict based upon it cannot be set aside as contrary to the evidence. So as to the measure of damages. Two witnesses testified the work could be done at a cost that would allow plaintiff a profit of five cents a cubic yard. Three testified that it would cost much more than the agreed price. As it is not disputed that plaintiff wished to proceed at the contract price, and was not called upon to do ,so, the jury may well have believed the plaintiff’s witnesses. We cannot say the verdict was wrong.

Judgment affirmed, with costs.


author: PratT, J.

text:
    George Rehrey, App’lt, v. City of Newburgh, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Municipal Corporations—Sidewalks.
    In the absence of negligence, the plan of construction of a sidewalk, whereby water flows over and freezes upon it, does not constitute a nuisance for which the city is liable,
    Appeal from a judgment in favor of defendant.

      William D. Dickey, for app’lt; C. L. Waring, for resp’t.
   PratT, J.

It is perfectly clear that this case cannot be reversed upon the ground that there was any question of negligence that ought to have been submitted to the jury. Indeed, the appellant does not claim that any negligence on the part of the city was proved, but he claims that the construction of the sidewalk as constructed constituted a nuisance for which the defendant was liable. This contention has never had any foundation in reason or law. Such a claim would impose upon every city that constructed a sidewalk to make it level from one end to the other. But it is unnecessary to state any reason for the affirmance of the judgment herein further than to say that it falls under the principle decided in the case of Urquhart v. City of Ogdensburg, 91 N. Y. 67.

Judgment affirmed, with costs.


author: Brown, P. J. Pratt, J. (dissenting).

text:
    Adalina C. Richards, as Administratrix, etc., Resp’t, v. Henry Sanford, as President of Adams Express Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Negligence— Cause.
    Where an injury is claimed to have been occasioned by a fall in front of defendant’s wagon, it cannot be attributed to defendant, unless there is some proof that the injured person was knocked down by the horse or the wagon.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Wm. D. Guthrie, for app’lt; Mr. Dikeman, for resp’t.
   Brown, P. J.

The judgment in this action must'be reversed, upon the ground that the evidence does not permit the inference that the driver of the wagon was negligent, or that injuries received by the deceased were caused by the defendant. The accident happened between 5 and 6 o’clock on November 21st, near the corner of Pearl street and Maiden lane, in the city of New York. The express wagon was going north on Pearl street, and the deceased was crossing the street just north of the crossing on the north side of Maiden lane. There was no eyewitness of the accident sworn upon the trial, except the driver of the wagon. He testified as follows:

“I was driving along Pearl street, and I see this man just across the crossing in a diagonal way. He attempted to cross the street, and I shouted at him, and my helper shouted, at him, and I hauled up my horse all I possibly could, and he staggered and fell. Mj horse I just held like that—steady. He neither tramped on him nor did the wagon or shaft hit him. My horse did not touch him in any way; the shafts did not strike him in any way; the wheels did not touch him in any way. When the man fell, he fell probably from two to three feet ahead of the horse, as near as I can guess. I hauled my horse up, handed the lines to my man, and got down—the pair of us got down—and lifted him up. The gentleman started to run across about ten feet ahead of the crossing. It was north of the crossing, up towards Fulton street. The moment I saw the man attempt to cross, I shouted to him. I held up my horse for all I was worth, and he did stand. I was driving through Pearl street about ten feet, as near as I can guess, from Maiden lane. I was going up towards Fulton street. That is where I was crossing Maiden lane. I was probably about ten feet, as near as I can guess, over the up-town cross walk. Mr. Richards came from the up-town—the Broadway — side, across down town, towards the ferry. I think that is what he was making for. I see him start from the sidewalk on a run, and, at the time I saw him fall, probably he was six or seven feet across the street; maybe more. I couldn’t just say.

The only witness called by the plaintiff to prove the accident was Henry Baker. He testified as follows:

“On the evening or the afternoon of November 21st, 1891, I was on the southeast corner of Maiden lane and Pearl street, New York City. It was somewhere around between five and half-past five o’clock in the evening. I was standing on the corner waiting for a friend, to close his store, previous to going to Brooklyn; and while I was waiting I heard a wagon passing the corner at a very fast rate, and I just turned around to see what it was — what the noise was about — and didn’t pay no more attention to it until it had crossed Maiden lane; and then I heard a sudden stop, and I saw two or three men running towards the wagon, and I knew it was an accident, and I saw some one lying in front of the horse as I ran over. We helped the man to his feet, and carried him over to the sidewalk. At the time it stopped, this wagon was about five feet from the crossing of P.earl street and Maiden lane. When I looked around, and the wagon had stopped, Mr. Richards was in front of the horse, lying down. The horse was in Pearl street, going up towards Fulton street. When they stopped, they were at the up-town crossing towards Fulton street, about five feet over it. I ran to the place where Mr. Richards was. I got there as soon as some of the other people got there. At the time that he was lying there in front of the horse he spolce.. I heard what he said. The driver was down on the street then. He got off the wagon. I saw no marks on him. tie was within two feet of the horse when I got there. I know of nothing in the way to obstruct the view of the driver of this wagon to prevent his seeing Mr. Richards before he came onto him. There was a truck £oing up Maiden lane from Pearl street about three or four minutes previous to the express wagon coming down or going up. It was out of the way before the express wagon got to the down-town side of Maiden lane. The truck that I saw turned from Pearl street into Maiden lane. It was going south, and turned the corner towards Broadway; Right after that truck passed, this express wagon came down. I guess, about the same time the truck went into Maidén lane, the express wagon came down.”

It will thus be seen that there was nothing to obstruct the view of the driver or the deceased. The deceased could have seen the wagon had he looked before he left the sidewalk. The driver saw the deceased as soon as he stepped into the street, and stopped his horse within two feet of him as he fell. There is absolutely no evidence that the deceased was knocked down by the horse or the wagon, and without some proof of that fact, the injury received from the fall cannot bé attributed to the defendant. If it was received from the fall in the street, defendant is not liable, and it is entirely consistent with all the facts proven that it was so received, and no other cause for it appears. There is nothing to support the conclusion of the jury that the injury was caused by defendant, except guess and speculation. I think, also, that the evidence shows deceased to have been guilty of contributory negligence. He was not at the street crossing, but above it, and could have seen the wagon if he had looked to the south.

Reference is made to an answer made by witness Baker to a question put to him on rebuttal. The question and answer are as follows:

“ Q. Did Mr. Richards say, in the presence and hearing of Mr. Macauley, at that time, that the horse carne on him so quickly that he couldn’t get out of the way? (Objected to as incompetent and as leading. Objection overruled. Exception taken.) The court: This is admitted solely as impeaching the witness. The witness: Yes, sir.”

This evidence does not aid the plaintiff’s case. It does not show that the horse or wagon struck the deceased, or that the driver was negligent. It is entirely consistent with the fact that deceased slipped on the street in his effort to avoid the wagon, which he had not observed when he started to cross. But the effect of the evidence was limited by the trial court, and we can give it'no greater weight than it was permitted to have on the trial. The judgment should be reversed, and there should be a new trial.

Dykman, J., concurs. .

Pratt, J. (dissenting).

This is an appeal from a judgment in favor of the plaintiff, entered upon a verdict; also, from an order denying a motion for a new trial upon the minutes, etc. The action was for damages in causing the death of plaintiff's intestate. As to the question of freedom from negligence on the part of the deceased, the evidence was sufficient to warrant submission of this question to the jury. The express wagon was going at quite a fast rate of speed. The time was between sundown and dark, which considered in connection with the conduct of the driver of the express wagon, and all the circumstances of the case, presented such a case as to justify a jury in inferring that the deceased omitted no precaution which a prudent man should have taken to avoid the accident. While no presumption arises, from the mere fact of injury, that the injured party is free from fault, yet such fact may be established by inferences properly drawn from surrounding facts and circumstances. Galvin v. Mayor, 112 N. Y. 228 ; 20 St. Rep. 569. The main difficulty in the case relates to the question whether death was caused by the negligence of the defendant. The evidence established the fact that death was caused by consumption, accelerated by the injury. This question is raised by an exception to the following expression in the charge of the judge, which was duly objected to, to-wit:

“I charge yon that, if the defendant materially hastened the death of the deceased, that is a cause of death, within the meaning of this statute, which enables the plaintiff to maintain this action.”

In effect, if the deceased's life was materially shortened by the negligence of the defendant, the action could be maintained. At common law, if a person was killed by another, although about to die, yet the slayer was held responsible,' and there seems no good reason why the same rule should not apply to the statute upon which this is brought. If the deceaseds life was materially shortened by the act of the defendant, then death at the time_ it took place, must, be regarded as due to that cause. It is true, the award of damages is more or less speculative, as the jury had to find how long the deceased would probably have lived, in order to estimate the amount of pecuniary loss sustained by the next of kin; hut, if the ruling as made by the judge was correct, there .was no other thing to do than to furnish the best evidence available, and let the jury determine the result. The plaintiff proved a reasonable basis for the conclusion that death would not have taken place as soon as it did had it not been for the injury received by the intestate. It is true, the intestate had consumption at the time of the accident; but no other cause of death intervened after to cause death, and it is in no wise certain that he might not have recovered from that disease if it had not been for the injury received. With some hesitation, I think the ruling of the judge upon this question was sound. The question of defendant’s negligence was properly submitted to the jury, and the verdict is supported by the evidence. The evidence was conflicting, and the verdict must be taken as conclusive. The main question in this case, as to cause of death, has not, to my knowledge, been passed upon in this state, and no case has been referred to by either side that has directly passed upon this question.

Judgment affirmed, with costs.


text:
    Henry Stanton, Resp’t, v. John S. Hennessey, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Evidence—Judgment.
    Judgments are evidence only between the same parties.
    3. Damages—Unnecessary litigation.
    A party cannot be charged with the expenses of an unnecessary litigation against another person.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Benjamin W. Downing, for app'lt \ K V. B. Kissam, for resp’t.
   Dykman, J.

This action was commenced in the county court of Queens county. It was based upon the fraud of the defendant in procuring the services of the plaintiff, the claim of the plaintiff being that he obtained a purchaser of the farm of the father of the defendant at the request of the defendant, who represented himself as clothed with authority from his father to employ the plaintiff for that purpose. The plaintiff brought a suit against the father to recover his commissions upon the sale of the farm, and his complaint was dismissed at the circuit Thereupon this action was commenced, based upon the fraud of the defendant, as we have already stated. At the close of the trial, the judge directed a verdict in favor of the plaintiff for $539.25. The counsel for the defendant requested permission to go to the jury upon all the issues in the case, but his request was denied, and he took exception. Upon the trial, the judgment roll in the action by z the plaintiff against the father of the defendant was offered and received in evidence against the objection and exception of the defendant’s counsel. The plaintiff, as a witness in nis own behalf, was asked upon what ground the complaint in his suit against the father of the defendant was dismissed, and he was permitted to answer, although the defendant’s counsel objected and excepted. The counsel for. the defendant, at the close of the plaintiff’s case, moved to dismiss the complaint upon several grounds, and, among others, because it nowhere appears that the statements made by the defendant were not in every respect correct The motion was denied, and there was an exception to the denial. '

The record discloses many fatal .errors. In the first place, the commissions upon the sale of the farm can amount to only $330.50, and that is the full measure of the plaintiff’s damages in any event. Yet the verdict was directed for $539.21. It does not appear how that sum was made up. The plaintiff was erroneously permitted to state that he paid his lawyer in the first suit $50, and that may have been included in the verdict. The plaintiff cannot recover in this action any of his expenses in the suit against the father. That action was unnecessary so far as the liability of the defend - ant in this action is concerned. That was an unnecessary as well as an improper action, and certainly the defendant cannot be charged with the consequences of its failure. The admission of the judgment roll in the suit of the plaintiff against the father of the defendant was erroneous. Judgments are only evidence between the same parties, but the defendant was not a party to that suit. That judgment, therefore, can have no force against the defendant in any way.

Upon the merits, the judgment cannot be sustained. There is no proof that the defendant made any false representations. There is no proof that he did not have authority from his father to say all he said. He did not say he had. authority to sell, or to bind his father in any way. He simply said he had authority from his father to state to the plaintiff that, if he (the plaintiff) found a purchaser for the farm, his father would pay him the usual commissions, and there was no proof that he had not such authority.

It was erroneous to permit the plaintiff to state the grounds upon which the complaint of the plaintiff in his suit against the father was dismissed. That could be shown only by the record, and it was, moreover, immaterial in this case.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    James H. Stuart, App’lt, v. Mutual Reserve Fund Life Association, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Insurance—Life—Waiver.
    Notification that the claim will be paid does not constitute a waiver of a breach of condition, which was not at the time known to the company.
    8. Same—Refusal of proposal to insure.'
    What constitutes a refusal of proposal to insure within the meaning of the application, stated.
    Appeal from a judgment dismissing the complaint, entered on a verdict directed by the court in favor of the defendant.

      Alfred B. Paqe, for app’lt; F. A. Burnham and William G. Be Witt, for resp’t.
   Brown, P. J.

This action was brought by the plaintiff, as assignee of William R. Page, administrator of John B. Page, deceased, upon two certificates or policies of life insurance, dated September 25, 1885, issued by the defendant upon the life of said John B. Page, and payable to his legal representatives within 90 days after receipt of satisfactory proofs of death. A verdict was directed for the defendant on the ground that the answers made by the insured in his application to the two following questions were untrue:

‘‘First Q. Has any proposal to insure the life of the applicant ever been declined ? If so, by what company or association ? Second" Q. Has any physician given an unfavorable opinion upon the life of the applicant with reference to life insurance or otherwise ?”

To both questions the answer returned was “No.”

Mr Page died on October 24th following the issuing of the pol- “ icies. -Proofs of death were furnished on December 16th, and on May 10, 1886, the defendant advised the administrator of Mr. Page that, as the facts then appeared, the proofs were approved, and the claim would be paid on July 30th. On June 1st a mort uary call was made by the defendant, assessing its members for approved claims, among which was the one in suit, and the money was,collected. The defendant did not pay in accordance with its notice of May 10th, and in March, 1887, it notified the ''administrator of its revocation of approval of the claim, and declined to pay it. This action was commenced on September 28, 1888.

The appellant contends that by this approval of the proofs and promise to pay the claim, and collection of the money by assessment upon its members, the defendant waived any right to declare the policy void for breach of its conditions and cites Smith v. Glens Falls Insurance Co., 62 N. Y. 87 to sustain this contention That case is not applicable to the present controversy. It was a case of fire insurance, where, in consideration of the surrender and cancellation of the policy, the defendant agreed to pay a specified sum in settlement of the loss. The policy was,, surrendered, and after that defendant refused to pay, and pleaded a breach of warranty in an .action to recover the sum agreed to be paid. The court held that the defense of a, breach of condition of the policy did not survive its surrender and cancellation, and that the action was not on the policy, but on the new agreement," and that defendant must pay. A similar ruling was made in National Life Insurance Co., v. Minch, 53 N. Y. 144-151. The present case has in it no element of settlement. The defendant never promised to pay absolutely. The statement of the letter of May 10th was that “on,the evidence then with the association, and as the facts then appeared,” it would pay on July 30th. At the time of writing that letter it did not know of the facts now asserted as a defense, and consequently then could not waive a defense based upon them. Robertson v. Metropolitan Life Insurance Co., 88 N. Y. 541. Neither is the fact that the money to pay the claim was collected by assessment upon the members of the association available to the plaintiff, nor does it affect the right of defendant to reject the claim upon evidence subsequently obtained. Such, I .think, would be the duty the officers owed to the association, if they were satisfied from their examination that there was a breach of the contract. Fisher v. Andrews, 37 Hun, 176; Mayer v. Equitable Reserve Fund Life Ass'n, 42 Hun, 237 ; 5 St. Rep., 87.

We therefore reach the inquiry whether the court properly determined that the answers to the questions I have quoted were untrue. The evidence on the subject was, not in dispute. The question is, did it compel the conclusions drawn from it? It appears that Mr. Page had a tontine policy in the Equitable Life Assurance Society. That policy provided that the tontine dividend should be applied only to purchase an annuity to reduce premiums during the subsequent continuation of the policy. The tontine period had expired in November, 1884. The association had, however, made an offer to the holders of such policies, including Mr. Page, in addition to the provision I have quoted from the contract, that the tontine dividend might be applied to the purchase of additional insurance equal in value to the annuity provided in the contract; but the offer' was subject to the condition that the person accepting it should pass a satisfactory medical examination as to the insurable character of his life. On the day preceding the application for the policies in suit, Mr. Page called upon the Equitable Association, and saw Mr. Van Oise, the assistant actuary. The additional insurance to which he would have been entitled was $4,100, and he expressed a desire to accept the ■offer made to him. He was sent by Mr. Van Oise to the medical department to be examined for that insurance. He was examined by Dr. William S. Seaman, a medical examiner of the company. The result of that examination was that albumen was found in his urine, and Dr. Seaman refused to approve the application, and communicated that conclusion to Mr. Van Oise. Mr. Van Oise testified:

“ I saw Mr. Page the same day after I had sent him to the medical department. * * I told him that our doctor had refused to pass him for increased insurance. I told him that the doctor would not approve him. In the conversation it was stated that the doctor refused to approve him on account of the condition of his health. I think he asked why the doctor refused to approve him,—what was the matter with him. My recollection is that I evaded the answer.”

It further appears by the testimony of Dr. Gale, who was Mr. Page’s physician at his homein Vermont, that on his return from, Hew York in September, 1885, at Page’s request he made an examination of his urine, and that Page then told him of his application to the Equitable Association for additional insurance, and that he had submitted to an examination, and an unfavorable opinion had been passed upon him, and he wanted Dr. Gale to examine his urine, and see if there was any trouble.

The appellant claims that, as no formal proposal for insurance made by Mr. Page to the Equitable Association, but the offer made to the policy holders was in the nature of a settlement of their tontine dividend, this evidence does not establish that the negative answer given to the first question was false; but passing this, I think it permits no other conclusion than the untruthfulness of the answer to second question. That inquiry was not limited to an opinion given upon an application for insurance. The information called for was whether, in “reference to insurance or otherwise,” an unfavorable opinion had been given as to the appellant’s life. The criticism made upon the form of this question is not, I think, well founded. I do not consider it equivocal or ambiguous. It does not call for an opinion as to the manner of living or the present condition of health of the applicant, further than those elements might affect the risk of insurance upon-the individual. The life is referred to as the subject of insurance, just as in fire or marine insurance a building or vessel would be referred to; and the inquiry is whether an opinion had ever been given that was unfavorable to the life, considered as an insurable thing. Undoubtedly, when the sense in which language is used or intended by parties is in doubt, its proper meaning may present a mixed question of law and' fact, which must be left to a jury to determine; but I do not think this is such a case. The question was plain and intelligible, and the insured must be held to have known that Dr. Seaman had given to Mr. Yan Cise an opinion that was unfavorable to his life as an insurable risk. His answer was therefore properly held by the trial court to have been untrue. The answer to this and other questions was, by the terms of the policy, warranted to be true, and made a part of the contract. Its untruthfulness, therefore, avoided the contract. Foot v. Aetna Fire Insurance Co., 61 N. Y. 571; Edington v. Aetna Life Insurance Co., 77 N. Y. 564.

The respondent has called our attention to alleged breaches of other conditions, and to the clause in the contract providing that no suit shall be brought after the lapse of one year from the date of the death of the insured I am of the opinion that the evidence permitted the conclusion that the breach of the condition as. to other insurance, and as to the time of the commencement' of an action to recover upon the policies, was waived by the defendant; but whether the question was one to be determined by the court or jury it is unnecessary to decide ; nor, inasmuch as. we think the judgment must be affirmed, it is necessary to state the reason that leads to that conclusion.

The judgment must be affirmed, with costs.