author: Smith, T.:

text:
    JOHN F. HAGER, Jr., and others, Plaintiffs, v. GEORGE M. CLUTE and JOHN HOLSINGER, Defendants.

      Action of replevin — judgment in — liability of sureties upon undertaking given in.

    Where, in an action of replevin, the plaintiff recovers a judgment for the possession of the property with damages for its detention, and for a fixed sum in case a return cannot be had, he cannot maintain an action against the sureties to an undertaking, given by the defendant, in pursuance of section'211 of the Code, until an execution has been issued to the sheriff in pursuance of the judgment and the same has been duly returned unsatisfied.

      Motion by defendants for a new trial on exceptions taken at the Erie Circuit, and ordered to be heard at the General Term in the first instance.
    This action is brought upon an undertaking executed by the defendants, under the following circumstances: The plaintiffs in this suit instituted an action to recover the possession of specific personal property, and claimed its immediate delivery. The sheriff took the property, but before it was delivered to the plaintiffs the defendant in that action gave to the sheriff the undertaking in suit, executed by the present defendants, in his behalf. The undertaking is in the form prescribed by section 211 of the Code. Thereupon, the property was returned to the defendants. The plaintiffs recovered judgment in the alternative for the possession of the property, with fifty dollars damages for the detention, or for $207, together with fifty dollars damages in case a delivery conld not be had, and for thirty-three dollars and eighty cents costs. No execution has been issued on the judgment.
    A verdict was rendered in this action, by direction of the court, in favor of the plaintiffs, for $313.08.

      S. S. Rogers, for the defendants.

      Lewis dh Gwrney, for the plaintiffs.
    It is not necessary for the plaintiff in a replevin suit to issue an execution, and exhaust his remedy by execution before he can bring his action. (Thompson on Provisional Remedies, fol. 187, § 11; Slack v. Heath, 4 E. D. Smith, 95, affirmed, Ct. of App., Tune, 1860; Mcvramge v. Mudge, 6 Abb., 243; Lvovngston v. Hammer, 7 Bosw., 671, 677; In the Matter of Negus, 7 Wend., 499; NY. G. Lns. Go. v. Safford, 10 How., 347; Ball v. Ga/rd/ner, 21 Wend., 270; Ha/rris v. Hardy, 3 Hill, 393.)
   Smith, T.:

By the terms of their undertaking the defendants became bound for the delivery of the property to the plaintiffs, if such delivery should be adjudged, and for the payment to them of such sum as might for any canse be recovered against the defendant in the action. The obligation created by the undertaking to pay “ such sum as might be recovered ” is an obligation to pay according to the terms and conditions of the recovery, and not otherwise. Section 277 of the Code provides that “ in an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention.” The judgment in this case is in accordance with that provision, and it adjudges that the defendants pay the value of the property m ease a delmery ea/rmot be had. The recovery for the value is not absolute, but conditional, and until the condition is complied with, the defendants are not liable for the value. To satisfy the condition it must appear that a delivery cannot be had by the ordinary process of law. The proper evidence of the fact is the issuing of an execution as prescribed by the Code (§ 289, subd. 4) and a return that delivery cannot be made. Section 211 is to be read in connection with section 277, and parties entering into an undertaking in pursuance of the former section are presumed to do it in view of, and with reference to, the provisions of the latter. Being sureties, they cannot be charged beyond the fair import of their undertaking. (McCluskey v. Cromwell, 11 N. Y., 593; Wood v. Fisk, 63 id., 245.)

These views are sustained by the cases of Gallarati v. Orser (27 N. Y., 324) and Fitzhugh v. Wiman, (5 Seld., 559). Callcvrati’s Case was this: The defendant in replevin, on being arrested, had given an undertaking, as provided by sections 187 and 211, and was discharged by the sheriff. Subsequently, his sureties being excepted to, had failed to justify. The plaintiff recovered, and entered a judgment for the value only, and not for the delivery of the property, and for its value if a delivery could not be had. Execution was issued in accordance with the judgment for the assessed value of the property, absolutely, and not contingently upon the inability to have a delivery of it. The execution was returned unsatisfied, and the plaintiff sued the sheriff, claiming that he was liable in the same manner as the sureties on the defendant’s undertaking to him. The Court of Appeals assumed, for the purposes of the case, that the sheriff was liable precisely as the sureties would have been if a proper undertaking had been given; but the court held, reversing the judgment of the court below, that the sheriff was not liable, and that to render him liable there must be a judgment, under the execution on which, the property might be sought and delivered,

In Fitzhugh v. Wiman, the court decided that in an action to recover the possession of personal property, where the property has not been delivered to the plaintiff prior to the trial, the plaintiff recovering has not a right to elect to take judgment for the value, but is entitled only to a judgment in the alternative.

In the present case, the plaintiff has entered judgment in the proper form, but he has not sought to enforce it by execution. That the issuing and return of a proper execution are as essential as the entering of a proper judgment to complete the liability of the bail, or of the sheriff, as the case may be, is apparent from the reasoning of the court in Gallarati’s Case. Denio, J., delivering the prevailing opinion, said: “We cannot say but if a proper judgment, and an execution in conformity with it, had been issued, the' bail or the sheriff would have found the property, and have caused it to be taken and delivered to the plaintiff on the writ of retorno habemdo.” (P. 32T.)

The cases of Slack v. Heath (4 E. D. Smith, 95; 1 Abb., 31) and Livingston v. Hammer (7 Bosw., 671), cited by the plaintiff’s counsel, do not touch the point in question. In Slack v. Heath, a verdict was ordered for the plaintiff on the pleadings. The complaint alleged an undertaking and a recovery in the replevin suit, but the form of the judgment did not appear, nor was it shown whether there had been an execution issued. The question most considered on the appeal was, whether the complaint averred a sufficient consideration to support the undertaking.

Livingston v. Hammer came before the court on a motion for judgment on account of the frivolousness of the answer. A question was made as to the sufficiency of the complaint. It alleged an undertaking in replevin under section 211, and a judgment in the action for the value simply. The court decided that if the judgment was not in the alternative, it was irregular merely, and not void; and that the irregularity could not be taken advantage of in an action on the undertaking. The only authority cited was Gallarati v. Orser (4 Bosw., 94), which, as we have seen, was afterwards reversed.

The counsel for the plaintiffs insists that he was entitled to maintain the action for the damages and costs given by the judgment, if not for the value, as the judgment for them is absolute, and, therefore, the defendants’ counsel asked for too much, and his motion for a nonsuit was properly denied. The position may be correct,' but it does not appear to have been suggested at the trial. The case was evidently tried and decided upon the theory that the plaintiff was entitled to recover the value as well as the damages and costs. The court directed a verdict for a specific sum, which included the value, and to that direction the defendants’ counsel excepted.

New trial granted, costs to abide event.

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

Ordered accordingly.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    DAVID S. BENNETT and HARRIET A. BENNETT, Plaintiffs, v. LAVINIA H. AUSTIN, Impleaded, etc., Defendant.

      Motion for a new trial, after interlocutory judgment — Appeal need, not he taken — (Me, § 268.
    After the entry of an interlocutory judgment or decree, not authorizing a final judgment, but directing further proceedings before a referee or otherwise, a motion for a new trial, on a case and exceptions, may be made under section 268 of the Code, without taking any appeal from such judgment or decree. Semble, such motion cannot be made in case of a trial before a referee.

    Such motion does not stay proceedings under the interlocutory judgment or decree.
    Motion to strike this case from the calendar, on the ground that the court had no jurisdiction to hear and determine the same.
    This action was commenced to redeem certain lands conveyed by the plaintiffs to one Stephen G-. Austin, on the ground that the deed was a security for a loan.
    Austin died, and his wife was made a party defendant to this action.
    The action has been twice tried. The second trial was had before Judge Henderson, who found the facts as alleged in the complaint, and decided that the plaintiffs had a right to redeem the said premises and directed an accounting as to the rents and profits received by Austin during his life, and by his wife since his decease.
    Without taking any appeal from this decision, and after the time had elapsed from taking an appeal therefrom, the defendant’s counsel gave notice of a motion for a new trial on a case and exceptions.

      Wm. S. Qreene, for the plaintiffs.
    ---, for the defendant.

       Under section 1001 of the Oode of Remedial Justice (Laws of 1867), such motion may be made in case of a trial before a referee.

   Smith, J.:

We do not assent to the position of the plaintiffs’ counsel that an appeal must be brought, in order to move for a new trial under the provision of section 268 of the Code, which was introduced into that section by the amendment of 1867. (Laws 1867, ch. 781, § 9.) Prior to the adoption of that amendment, there was no mode of reviewing the decision upon a trial by the court, except by appeal from a final judgment. On such appeal any intermediate order, involving the merits, and necessarily affecting the judgment, might be reviewed. (Code, § 329.) That state of the practice led to much delay and inconvenience in a considerable class of cases tried by the court, in which, after the decision of the preliminary issue, an accounting or some other further proceeding was necessary before final judgment could be rendered, and which subsequent proceeding could be had more conveniently before a referee than before the court. To remedy that inconvenience, the amendment of 1867 was adopted, providing a motion for a new trial on a case and exceptions, whereby the interlocutory decision of the court could be reviewed, before judgment. The motion is not an appeal, but it must be brought on, upon a case or exceptions made as provided “ in case of an appeal.”

It was suggested, on the argument of this motion, that an appeal is necessary to bring the case up for review. But the statute directs that the motion shall be made at General Term, and as it is to be made on a case, and as a final judgment is not to be rendered by the General Term, the record need not be brought up.

It was also urged that unless a party proposing to move for a new trial, under section 268 is required to bring an appeal, tbe party prevailing at the Special Term, will be subjected to delay till tbe decision of tbe motion for a new trial, without having security. Tbe motion for a new trial does not stay proceedings. Tbe prevailing party may proceed with tbe cause, notwithstanding tbe steps taken with a view to a motion for a new trial, unless be is stayed by an order of tbe court, or a judge thereof, on tbe granting of which order, such terms may be imposed as shall appear just, respecting security or otherwise.

Tbe case of Miller v. Lansing, decided by this court in June last, is distinguishable from this. There tbe trial was before a referee, and we refused to bear a motion for a new trial on a case and exceptions, for tbe reason that tbe provision of section 268, in question, does not apply to tbe ease of a trial by a referee. Tbe inconvenience above adverted to, attending'the taking of an account, or other further proceeding, in an action tried by tbe court,, does not exist in the case of a trial by a referee, who can as conveniently take tbe account as be can try tbe main or preliminary issue. Tbe only mode now, as well as before tbe amendment of 186Y, of reviewing tbe decision of a referee, is by appeal from tbe final judgment.

Motion denied, but without costs, as tbe question of practice is new.

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

Motion to strike cause from tbe calendar denied.


author: Mullin, P. J.:

text:
    JOHN UNDERWOOD, Receiver, etc., Respondent, v. WILLIAM SUTCLIFFE, Impleaded, etc., Appellant.

      Swpphmentm'y proceedings— receiver in —powers of — vrregulm'ity in appointment of— who map take advantage of.

    A receiver appointed in. proceedings supplementary to execution, may maintain an action to recover real or personal property transferred by the judgment debtor in fraud of his creditors.
    No person can avail himself of an irregularity in the proceedings in which the receiver was appointed, except the judgment debtor himself.

      Proceedings supplementary to an execution are in the nature of an action, and the court does not lose jurisdiction thereof, by a failure of either or both of the parties to appear on a day to which they have been adjourned by the judge or referee.
    Where, in such a case, the attorney for the judgment debtor appears before the judge, in obedience to a notice to show cause why a receiver should not be appointed, and mates no objection thereto, all objections to the regularity of such proceedings are thereby waived.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    In March, 1871, Charles T. Ferris recovered a judgment in this court against Henry 0. Sutcliffe for the sum of $836.48, damages and costs.
    In 1873, said Ferris having issued execution on said judgment, and it having been returned by the sheriff to whom it was delivered, unsatisfied, instituted proceedings supplementary to execution before the county judge of Cayuga county, against the judgment debtor, who appeard before the referee appointed therein, from time to time, and was examined touching his property. The last adjournment was to the 12th of November, 1873. On that day neither party appeared before the referee, and he closed the evidence.
    On the 9th of February, 1874, the county judge appointed the plaintiff in this action receiver of the property and effects of said Henry 0. Sutcliffe, upon his filing with the clerk of said county a bond, with sufficient sureties, to be approved by said county judge, in the penalty of $500 for the faithful discharge of the duties of the trust.
    The plaintiff, with two sureties approved by the. said judge, executed a bond in conformity to said order, dated the 5th of February, 1874, and thereupon entered upon his duties as receiver, under and pursuant to said order.
    In April, 1874, the receiver commenced this action against the judgment debtor and William Sutcliffe, his son, alleging in the complaint, amongst other things, the recovery of said judgment, and that said Henry 0. had been engaged for several years as a maltster, and had made large profits in that business; that in January, 1867, and while he was owing said Ferris the debt for which judgment was afterwards recovered, he, desiring to enlarge his business, and intending to cheat and defraud said Ferris, purchased, or caused to be purchased by his son, William, the other defendant in this action, a lot of land of one David Wetherby, contiguous to his place of business; caused the title to said lot to be conveyed to said William, the purchase-money having been paid by or out of the property of said Henry C.; that the conveyance to said William was fraudulent as against the creditors of Henry C. After said conveyance, William caused to be erected on said lot a malt-house, at an expense of some $6,000, which was paid with the money or property of said Henry C.; and that the business of malting thereafter done in said building was done in the name of William, but for the benefit of said Henry C. And that Henry C, in order to cheat and defraud his creditors, and especially said Ferris, transferred all his property to said William, and thereafter all the busi•ness was done in his name; that said Henry has continued to carry on the business as before the transfer to William, pmchasing and selling property in his own name.
    The plaintiff demanded judgment, that said judgment and the costs be declared a lien on said premises so held by said William, and that the conveyance to him be declared fraudulent and void; and that the transfer to William of the personal property be also declared fraudulent and void, and set aside as against such judgment and costs.
    Henry C., in his answer, admits being engaged in making beer from 1861 to 1868; that judgment was recovered against him by Ferris; alleges that in May, 1868, he ceased to carry on said business ; and denies all allegations of fraud in said complaint, and denies all other allegations in the complaint.
    The defendant William, in his answer, denies that Henry C. purchased the land on which the malt-house was erected, or that it was paid for by his means, or that he ever had any interest in said property. He also denies that Henry C. paid any part of the expense of erecting said malt-house, or that said purchase was made with any fraudulent intent.
    William also denies that Henry 0. has had any interest in the business carried on by said William, and that any property was transferred to him with fraudulent intent. He sets np, in bar of said action, the statute of limitations.

      Tbe cause was tried at tbe Auburn Special Term, in March, 1875, before Justice Dwight, who found, amongst other facts, that while the action of Ferris against Henry C. was pending, the malt-house lot was conveyed by Wetherby and wife to defendant William; that the consideration was paid with the money of said Henry C., and the conveyance taken in the name of William for the purpose of preventing and hindering said Ferris in collecting his demand; that in 1868, and while the action of Ferris was pending, the defendant erected a malt-house upon said premises, at a cost of at least $6,000, $1,500 of which was furnished by the wife of said Henry, and the balance was paid with the moneys of said Henry, and out of the avails of said business; and that the said conveyance was made to said William for the purpose of delaying and defrauding the creditors of Henry C., and especially Ferris.
    The said justice ordered judgment that said conveyance to William was fraudulent as against Ferris; and that the same, with the building thereon, should, in equity, be subject to said judgment, and to the costs of the action and of the supplementary proceedings.
    From that judgment the defendant William appeals.

      E. H. Avery, for the appellant.

      F. I). Wright, for the respondent.
   Mullin, P. J.:

The appellant’s counsel moved for a nonsuit on the trial, on the ground, among others, that the plaintiff was not legally appointed receiver of the property of the judgment debtor, for the reason that on the day to which supplementary proceedings were adjourned by the referee neither party appeared, and the plaintiff thereby abandoned the proceedings, and the county judge could not thereafter appoint a receiver.

With the proceedings to appoint the receiver the appellant has nothing whatever to do. The judgment debtor is the only person who can avail himself of any irregularity in the proceedings, and in this case he concedes their regularity by not questioning them. (Tyler v. Willis, 33 Barb., 327; Hobart v. Frost, 5 Duer, 672.)

Proceedings supplementary are in the nature of an action, and do not terminate by tbe neglect of tbe plaintiff in tbe judgment, to appear on a day to which they have been adjourned, either by the judge or referee. But it would be irregular to proceed upon the original order after such failure to appear, and the subsequent proceedings would be set aside on motion or on appeal. Jurisdiction of the officer continues until the judgment is satisfied or the proceedings terminated by order of the judge or of a competent court.

The right of the plaintiff to maintain the action is denied upon the further ground, that the receiver’s bond is dated several days before the order appointing the receiver was made.

It appears by the evidence of the referee that the attention of the judge was called to the defect, if it was one; but it would seem that the bond was not received or acted upon until after the appointment of the receiver, and it then became operative against the parties to it, and they are estopped from disputing its validity.

But the conclusive answer to the objection is that the appellant has no right to raise the objection. The judgment debtor alone could raise it.

Again, it appears by the case that the attorney of the judgment debtor appeared before the judge, in obedience to notice to show cause why a receiver should not be appointed, and made no objection to the appointment, and all objections to the regularity of the proceedings wei’e thereby waived. (Tyler v. Willis, 33 Barb., 327; Viburt v. Frost, 3 Abb., 119.)

Another ground of nonsuit relied upon by the appellant’s counsel was, that there was no evidence in the case that the conveyance from Wetherby to appellant was taken in the name of the latter for the purpose of preventing and hindering Ferris from collecting his debt from Henry C. Sutcliffe.

It is impossible, it seems to me, to read the evidence of the appellant and not be satisfied that not only the land in question, but the entire property of the judgment debtor, and all the profits of the business previously carried on by his father, were transferred to the appellant without consideration, and that the improvements made upon it were paid for from the profits of the business.

The appellant was a young man, unmarried, lived at his father’s, and was boarded by him without charge, worked at the business at his pleasure, without any contract as to price, and took to his own use and deposited in bank or kept in a trunk belonging to him so much of his father’s money arising from the business as he desired, and so much as he desired to pay out for his personal expenses, without investing a dollar in the business except some $1,500 he got from his mother, all the rest being obtained from his father. He became the owner of a large and valuable property, leaving not a dollar with which to pay his father’s creditors. If such a transaction is not fraudulent, I am unable to imagine a case that would be.

The findings of the court are fully sustained by the evidence.

If it was necessary, in order to support the judgment, to lay one’s finger on the evidence in which the appellant testifies that the transactions between him and his father were fraudulent as to the creditors of the latter, it must be conceded there is no such evidence. But taking the history of appellant’s connection with his father’s business and the absorption by him of the whole property without consideration, and without leaving any thing for his father’s creditors, the evidence of fraud thus obtained is not only more conclusive, but more satisfactory than any direct admission of the appellant could be. The one -might "be the result of surprise or mistake, but the other cannot be.

The appellant’s counsel insists that the receiver cannot maintain this action to satisfy the Ferris judgment out of the property obtained by appellant from his father, because his authority is limited to the property which passes to him from the judgment debtor, and cannot reach the land conveyed by Wetherby or the proceeds of it, or of the improvements made thereon.

A receiver appointed in proceedings supplementary to execution may maintain an action to recover real or personal property transferred by the judgment debtor in fraud of his creditors. (Porter v. Clark, 12 How., 107; S. C., 5 Seld., 142; Edmonston v. McLoud, 16 N. Y., 543.)

The parties to the fraud cannot cover the property so that it cannot be reached by the receiver by causing it to pass through numerous hands by numerous conveyances.

The judgment of the Special Term must be afSimed.

Present — Mullir, P. J., Taloott and Smith, JJ.

Judgment affirmed, with costs.


text:
    JACIN L. HIGGINS, Respondent, v. THE PHŒNIX MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Policy of inswramce — application for — erroneous answer — Conversation between applicant a/nd agent — admissible in evidence — when company estopped from, setting up falsity of a/nswer.

    Plaintiff's assignor having applied for a policy of insurance, the application was filled up by the defendant’s agent. The answer to a question as to the name and residence of his family physician was, “Refer to Dr. A. T. Mills, Corning, N. Y.” Accompanying the application was a paper headed “ Questions to be answered by the physician of the party to be insured, ” signed by Mills, in which he stated that he never attended Higgins professionally.
    Upon the trial of this action, brought to recover on the policy, defendant insisted that it was void, for the reason that Mills was not, but that a Dr. Bryan of Corning was the family physician of the insured. Against defendant’s objection and exception defendant’s agent was allowed to state that at the time of the filling up of the application, Higgins said he did not know as he had any one that he could call his family physician; that Dr. Mills had prescribed for him, and that Dr. Bryan had prescribed for him, and he would refer to either of them. The agent asked if he should put down his reference to Dr. Mills, and he said “ yes. ” Seld:

    (1) That the answer being ambiguous parol evidence, as to what took place at the time, was properly admitted.
    (2) That as Higgins was misled by the agent into making an erroneous reference to Mills, the company was estopped from insisting thereon.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by tbe court.
    Tbe action was brought to recover tbe amount of a policy of insurance, issued by tbe defendant upon tbe life of one Romeyn O. Higgins, which bad been assigned to tbe plaintiff.

      Samuel Hand, for tbe appellant.

      Bradley <& Kendall, for tbe respondent.
   Mullin, P. J.:

On tbe 2d January, 1873, Romeyn O. Higgins applied to William Walker, an agent of tbe defendant, residing at Corning in tbe county of Steuben, for a policy of insurance on bis life in said company, for tbe sum of $5,000. The agent wrote tbe answers of Higgins to the several questions required to be answered by all persons applying for insurance in said company. The application was signed by said Higgins, and it, with other papers required to be furnished to the company by applicants for insurance, were forwarded to the defendant by said agent, and a policy was thereupon issued to said Higgins, insuring his life in the sum of $5,000, and was dated the 31st December, 1872.

Said policy contained the following, amongst other conditions: “ If any of the declarations or statements made on the application for this policy, upon the faith of which this policy is issued, shall be proved in any respect untrue, this policy shall be null and void.”

The application required Higgins to state the name and residence of the family physician, or of one whom the party has usually employed or consulted.

The answer to the question was as follows: “ Eefer to Dr. A. T. Mills, Corning, N. Y.”

Accompanying the application, sent by Higgins to the defendant, was the certificate of Dr. A. T. Mills, at the head of which were the following printed words, viz.: “ Questions to be answered by the physician of the party to be insured.”

Dr. Mills, in his answer to the questions required to be answered by him, stated that he had known Higgins two years, and that he had never attended him professionally.

The insured died, on or about the 15th October, 1873, and the requisite px’oofs thereof were furnished to the defendant. The defendant refused to pay the amount insured, and thex’eupon this action was brought.

The defendant, in its answer, set up as a defense the falsity of the answer to the twenty-sixth intex'rogatory, contained in the application, by reason of which the policy became void.

On the trial, Dr. Mills was called as a witness on the part of the defendant, and testified that at the time he examined Higgins, in ox’der to ascertain whether he was a proper subject for insurance, he had never prescribed for or attended his family at his house. On two occasions he had prescribed for him, when he met him on the cars, for dyspepsia, and for which he made no chax-ge. Proof was given, tending to prove that Dr. Bryan, of Corning, was the family physician of Higgins.

'William Walker, defendant’s agent, who took and forwarded Higgins’ application for insurance to defendant, was called by the plaintiff and the following question was put to him: “When that question (No. 26) in the application was read to Higgins, at the time the application was made, what was said and what took place in regard to it?”

The question was objected to as incompetent and immaterial on several grounds. The objection was overruled, and defendant’s counsel excepted. The witness testified that he (Higgins) said he did not know as he had any one that he could call Ms family physician ; that Dr. Mills had prescribed for him, and that Dr. Bryan had prescribed for him, and he woxdd refer to either one of them. The agent asked him if he should put down Ms reference to Dr. Mills and he said “ yes.” That was about all that took place in reference to that, and he (the agent) thereupon wrote it in its present shape.

The court ordered a verdict in favor of the plaintiff for $5,000 and interest thereon, to which direction defendant’s counsel excepted.

Higgins’ answer to the twenty-sixth interrogatory is not such a direct and unequivocal answer, as the company had the right to demand, and as the assured was bound to make. It would, under ordinary circumstances, be received as an allegation that Dr. Mills was his family physician, but connected with the application was the certificate of Dr. Mills that he had never attended Higgins professionally.

This certificate cannot overcome the effect of a positive statement in the application that Dr. Mills was the family physician of Higgins, but it is to be considered in determining what weight is to be given to the peculiar answer of Higgins as to who was his family physician, and made it proper to inquire of the agent what was said at the time of preparing Ms answers to the interrogatories, as to who was Ms (H.’s) family physician.

In the case of Baker v. The Home Life Ins. Co., not yet reported, Allen, J., says: H true answers were given to the agent of the defendant by whom the application was filled out and the answers reduced to writing, but the agent for any reason modified or varied the answers so as give them a different meaning from the answers actually given by the applicant, the defendant would be estopped from challenging the correctness of the answers as modified and written by the agent. In such case the answers nominally proceeding from the insured would be regarded as the act of the insurers. They must be held estopped by the acts of the agent sent out by them to solicit insurances, and if such agents, by reason of the large commissions upon the premiums they obtain, and a desire to extend and enlarge the business of their principals, are officiously zealous and take the liberty of interpreting and giving form to the answers and statements of those whom they are soliciting to take policies, instead of giving literally the statements and words of the applicant, the effect must be the same as if the same acts had been done by the insurers in person. The agents, in the matter of the application and all they do before the issuing of the policy, are the accredited agents of the company, acting within the apparent scope of their authority, and are so regarded by those whom they approach, and with whom they deal in respect to insurance, and it would be unjust to treat them as the agents of the applicant.”

It follows, from these views of the learned judge, that it was competent for the -plaintiff to prove by parol what he said to the agent in answer to the twenty-sixth interrogatory.

Higgins told the agent that he did not know that he had any one he could call his family physician; that both Mills and Bryan had prescribed for him, and he would refer to either. The agent then asked him if he should put down his reference to Dr. Mills, and he said yes.”

If the agent had written down the whole answer of Higgins, then there would have been no ground for complaint. The defendant would then have been informed that the applicant was in doubt as to whether he had any family physician, or if he had two, which of them was the real one.

The defendant had the disclaimer of Dr. Mills, over his own signature, that he was the family physician, and an answer from the applicant himself, not directly asserting that Mills was his family physician, biit making reference to him as such.

The agent says that after H. had stated that he was in doubt whether he had a family physician, and that Mills and Bryan had prescribed for him, he, the agent, asked him if he should put down his reference to Dr. Mills, and he (H.) said “ yes.”

If this had been the whole of the answer, the defendant should not be held estopped from alleging the falsity of the answer ; but H. was acting under the advice and instructions of the defendant’s agent, and when he was asked by the agent, after informing him that he was in doubt as to who was his physician, the question, put by the agent, whether he should write down a reference to Mills, was substantially a statement by the. agent that, upon the facts disclosed to him, Mills was his family physician, common prudence would have dictated to the agent the propriety of referring to both Mills and Bryan, when a mistake in the reference might be fatal to the policy.

Upon the' evidence, I think Higgins was misled by the agent into making an erroneous reference to Mills, when the agent should have embodied the statement of Higgins in answer to the question; and that the company should be held estopped from alleging the falsity of the answer to the twenty-sixth interrogatory.

The judgment must be affirmed.

Present — Mullin, P. J., and Talcott, J. Smith, J., not sitting.

Judgment affirmed.


author: Mtjllin, P. J.:

text:
    HENRY MARSHALL and MOSES C. ROBERTS, Respondents, v. WATERTOWN STEAM ENGINE COMPANY, Appellant.

      Examination of witness on commission — answers io cross-interrogatories — by whom, they ma/y be read in evidence.

    Upon the trial of an action in which a witness has been examined on commission, the party at whose instance it was issued, may, after reading in evidence the direct-interrogatories and the answers thereto, read in evidence the cross-interrogatories and answers, even though the party by whom they were framed may object to his so doing.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on the judge’s minutes.

      Lansing <& Sherman, for the appellant.

      Lewi H. Brown, for the respondents.
   Mtjllin, P. J.:

On the trial of this cause, the defendant read in evidence the answers of one Richardson to the direct-interrogatories put to hirn on behalf of the defendant, by whom the commission was issued to examine the witness who resided in Pennsylvania.

When the reading of the answers to the direct-interrogatories was finished, the plaintiff’s counsel stated that he waived the reading of the cross-interrogatories and did not read them, nor the answers thereto.

Thereupon the defendant’s counsel offered to read the answer to the second cross-interrogatory, and it was read.

The court then said to defendant’s counsel that, the other side having waived the reading of the cross-examination, he did not think there was any rale which authorized him (the defendant’s counsel) to read it.

The plaintiffs’ counsel then objected to' reading the second cross-interrogatory.

The court sustained the objection and defendant’s counsel excepted.

The cotu-t intended by this ruling not only to hold that defendant’s counsel had no right to read the answer to the cross-interrogatories, but to exclude the answer to the second cross-interrogatory that the defendant’s counsel had read.

The answer thus excluded was material evidence for the defendant, and if the ruling of the court was erroneous, the defendant was prejudiced thereby.

The refusal of the court to allow the defendant’s counsel to read in evidence the answer of the witness to the second cross-interrogatory was erroneous, and because of the error the judgment must be reversed and a new trial granted.

In the Union Bank of Sandusky v. Torrey (5 Duer, 626), the Superior Court of the city of New York held, following the decision of Justice Washington (4 Wash. C. C. R., 324), that cross-interrogatories cannot be withdrawn unless by consent of the adverse party. Dube, J., delivering the opinion of the court, says it is not difficult to imagine cases in which the rights and interests of the party might be seriously affected by the omission to put to the witness the cross-interrogatories annexed to the commission. The direct-interrogatories may not have been answered as explicitly and fully as they might and ought to have been. The answers to the cross-interrogatories might have supplied the defect, and these interrogatories may have been withdrawn in the belief that if answered such would be the consequence.

In Gellatly v. Lowery (6 Bosw., 113) the same court held that if the answers, which the party taking the deposition declines to read, are relevant and competent, the other party may read them, or cause them to be read, and use them as evidence in his own favor.

The same rule must apply to the answers to cross-interrogatories, that is thus applied by the court to the answers to the direct-interrogatories.

In Weber v. Kingsland (8 Bosw., 415) the same court held that a deposition taken on commission issued at the instance of one party may be read in evidence by the other party at the trial, although the former refuse to read it.

The respondent’s counsel endeavors to escape the effect of the erroneous ruling by saying that the answer to the second cross-interrogatory was not responsive to the question.

In this he is mistaken, the answer is as responsive as the answers of the great majority of witnesses to questions put to them. He was asked whether he remembered having an interview with Raw-son, at defendant’s office, on the 10th July, 1873, and instead of answering by yes or no, he said he had no interview with Rawson at the place named on the day mentioned, and he assigned as a reason why he did not, and could not have had such an interview, that he resigned his office on the eighteenth of June, and had no interview with Rawson at any time in July.

The answer was not only responsive, but was important evidence for the defendant. But the conclusive answer to the counsel’s suggestion is, that the court did not put the exclusion of the evidence on the ground suggested.

A more singular ground for sustaining the ruling-of the court is, that the whole deposition was taken by the jury, and they had before them the evidence excluded. I assume that the answers to the cross-interrogatories were taken by the jury. If so, then evidence excluded by the court was permitted to go to the jury, and to be considered by them, however fatal it might be to the defendant.

The defendant’s counsel assented that the jury might take the deposition, and he cannot complain of it; bnt he has the right to insist that he should not be held responsible for evidence that he was not permitted to discuss before the jury.

The conclusion at which we have arrived on the point under consideration renders it unnecessary to examine any of the other points discussed by the appellant’s counsel.

The judgment must be reversed and a new trial ordered, costs to abide the event.

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

Judgment and order reversed and new trial granted, costs to abide event.


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    NOAH D. CORNISH, Respondent, v. THE FARM BUILDINGS FIRE INSURANCE COMPANY, Appellant.

      Policy of inswrcmce — increase of rislc — when case should he left to the jury.

    This action was brought upon a policy of insurance which provided that “any • increase of hazard or material change shall avoid this policy, without consent indorsed hereon. ” The defense was that the premises became and were unoccupied at the time of the fire. Upon the trial, three witnesses, called by the defendant, testified that they were insurance agents, and the risk was increased by the non-occupancy of the premises. No witnesses were called by plaintiff on this point.
    Defendant’s counsel asked the court to direct a verdict on the ground that it was proved, without contradiction, that the risk had been increased. Held, that it was not error for the court to refuse so to do; that, although the evidence was competent and entitled to great weight, the jury had the right to decide the question of increase of risk upon their own views upon that question.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover the amount of a policy of insurance issued on a house of the plaintiff.

      S. Earl, for the appellant.

      H. G. Kvngsbv/ry, for the respondent.
   Mullin, P. J.:

Tbe defendant insured the plaintiff’s dwelling-house and barn, situate somewhere in Chautauqua county, for the term of three years from the 29th of January, 1873, in the sum of $2,475.

The policy contained the following condition: “Any increase of hazard or material change shall avoid this policy, without consent indorsed hereon.”

When the property was insured, the buildings were occupied by a tenant of the plaintiff, and they continued to be so occupied until the forepart of May, before the lire, which occurred on the 4th of July, 1874, when the tenant left, and the premises were not again occupied by any person, and were not occupied at the time of the fire.

The defendant, on the trial, called three witnesses, who testified that they were, and had been for several years, insurance agents, and accustomed to examine risks and adjust losses, and that the risk of the insurance was increased by reason of the premises insured being unoccupied; and the reasons for so testifying were, that the buildings were more liable to be occupied by tramps and children.

The plaintiff gave no evidence on the question whether the risk was increased because the premises were unoccupied.

At the close of the evidence, the defendant’s counsel asked the court to order a verdict for the defendant, on the ground that, by the evidence, the risk had been proved to have been increased, and there was no conflicting evidence on that point.

The court refused to order a verdict as requested, and defendant’s counsel excepted.

The counsel asked the court to charge the jury that the policy became void by reason of the premises being unoccupied. The court refused so to charge, and defendant’s counsel excepted.

The jury found a verdict for the plaintiff, on which judgment was entered, and from it the defendant appeals.

When the evidence in a cause is conflicting, and when different constructions may be put' upon the same writing or statement, or different inferences may be drawn from the same state of facts, the questions of fact must be submitted to the jury, and the court has no authority to take it from them.

In the case before us the question was not one of skill or science merely; it was one that the jury could have decided if the evidence of the experts had not been given. Their evidence was competent, and entitled to great consideration in deciding the question of fact, but it was not controlling. The jury had the right to decide the question of increase of risk, upon their own views upon that question. (Grant v. Howard Ins. Co., 5 Hill, 10, and cases cited.) The judgment must be affirmed.

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

Judgment affirmed.


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    THE NATIONAL BANK OF AUBURN, Respondent, v. EDWIN LEWIS, Impleaded, etc., Appellant.

      Tlmry — how pleaded.

    A plea of usui-y must set forth the usurious agreement, the names of the parties between whom it was made, the amount loaned, the amount of usury agreed to be paid, the length of time for which the loan was agreed to be made, and that the agreement was corrupt.
    An answer which fails to allege any agreement between the parties, but merely alleges that the plaintiff took and reserved more than seven per cent, without, so far as appears, the consent of the borrower, is fatally defective.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action is on a note made by Beach Brothers & Co., for $1,680, bearing date the 31st of August, 1874, payable three months after date to the order of William Baker at the National Bank of Auburn.
    The answer contains six defenses:
    The first is a denial of the delivery to the plaintiff of said note, or that he is indebted thereon.
    Second. That he was an indorser on said note for accommodation of the makers, and without any consideration therefor ; that it was made and indorsed for the sole purpose of being discounted by the plaintiff for the sole benefit of the makers, which facts were known to the plaintiff at the time of the discount, and that at the time of the discount the plaintiff knowingly, corruptly and usuriously dedncted therefrom, and took and received or charged by way of discount, and knowingly and corruptly took, received and reserved for the loan or forbearance of the sum mentioned in the note for the time it had to run a sum larger than at the rate of seven per cent per annum to wit, the sum of $160, or thereabouts, whereby said note and indorsement became void by the laws of this State.
    Third. The third defense sets up the same matters, and alleges that the taking of the illegal interest was contrary to the act of congress, entitled an act to provide a national currency, approved February 25, 1863, and said note became void.
    Fourth. The fourth defense is a denial of the corporate existence of the plaintiff.
    Fifth. The fifth defense is the same as the second, except that it claims that taking illegal interest should be held to be a forfeiture of the entire interest which said note carries with it.
    Sixth. The sixth defense is that said note was the last renewal of a long series of renewals, on each of which plaintiff received and took usurious interest, and that the aggregate of .said sums of usurious interest should be deducted from the amount due on said note.
    On the trial the defendant admitted the corporate existence of the plaintiff.
    The note was then read in evidence. The defendant admitted protest and notice, and the amount of interest due on said note, and the plaintiff rested.
    The plaintiff conceded that defendant was an accommodation indorser without consideration.
    The defendant called the plaintiff’s teller, and was proceeding to examine him when plaintiff’s counsel objected to any evidence being given in support of the allegations or defenses in the answer, on the ground that they set up no defense to the action.
    The objection was sustained by the court and defendant’s counsel excepted.
    The defendant’s counsel thereupon offered to prove the matters set up in his several defenses, except the fourth, to which the plaintiff’s counsel objected. The court sustained the objection and defendant’s counsel excepted.

      The court ordered judgment in favor of the plaintiff for the amount of the note and interest thereon from its maturity, and from that judgment the defendant appeals.

      RoTbm Tracy, for the appellant.

      E. E. Avery, for the respondent.
   Mullin, P. J.:

All the defenses, except the fourth, are based upon usury, and if that defense is not available, it will not be necessary to consider any of the allegations connected with it.

The plea of usury at the common law, and the answer setting up the same defense under the Code, must set forth the usurious agreement, the names of the parties between whom it was made, the amount loaned, the amount of usury agreed to be paid, the length of time for which the loan was agreed to be made, and that the agreement was corrupt. (Manning v. Tyler, 21 N. Y., 567; Fay v. Grimsteed, 10 Barb., 321; Gould v. Horner, 12 id., 601; Banks v. Van Antwerp, 5 Abb. Pr., 411; Smalley v. Doughty, 6 Bosw., 66; Nat. Bk. of Metropolis v. Orcutt, 18 Barb., 256.)

The averments of usury in the several defenses are substantially in the same language, and are in the following words: “ Plaintiff discounted said note for the sole benefit of said makers thereof, and then and there, at the time of the said discount thereof, knowingly, corruptly and usuriously deducted therefrom, and took and received, reserved or charged by way of discount, and then and there, knowingly, corruptly and usuriously, took, received, reserved, or charged for the loan or forbearance of the sum of money seemed thereby, for the time the same then had to run, to wit, for the time of three months, and three days, including the days of grace allowed by law upon commercial paper, payable on time, a sum of money much larger than at and after the rate of seven per cent per annum, to wit, the sum of $160 or thereabouts.”

It will be seen that the answers do not even allege an agreement between the parties. On the contrary, the averment is, that the plaintiff took and reserved more than seven per cent without, so far as the answer alleges, the consent of the borrower.

Such an answer is fatally defective, and .no attempt was made to amend it.

The defenses were properly rejected because of the defects in the answer.

The judgment must be affirmed.

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

Judgment affirmed.


author: Muulin, P. J. :

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    EPHRAIM V. HORN and others, Appellants, v. LOREN R. PULLMAN and others, Respondents.

      Probate of will —admissions of devisees — when admissible — Improper rejection of evidence by surrogate — when his judgment reversed leccmse of

    The appellants contested before the surrogate the probate of the will of one Horn, on the ground of- incapacity and of fraud and undue influence. The testator devised the property to a granddaughter and her husband, jointly. Upon the hearing, the counsel for contestant proposed to prove statements of the granddaughter, made at or about the time of making the will, that the testator ought to leave all his property to herself and husband; that she had consulted a physician as to his mental capacity; that he would do whatever she asked him; that they meant to have the property; which evidence was, upon the objection of the counsel for the proponents, rejected. Held, that this was error.
    Where competent evidence has been rejected by the surrogate, his judgment or decree will not be reversed, unless, if such evidence had been received and a finding had been made in conformity thereupon, the court would have affirmed the decree.
    Appeal from a decree of the surrogate of Herkimer county, admitting to probate the will of Cornelius Horn, deceased.
    Probate of the will was contested on the ground of the mental incapacity of the testator, and of fraud and undue influence practiced upon him by the beneficiaries under the will.

      M. J. Ooohi/ngham, for the appellants.

      8. 8. Morgan., for the respondents.
   Muulin, P. J. :

The contestants utterly failed to make a case before the surrogate, establishing either a defective execution of the will, insanity of the testator, or that it was the result of undue influence on the part of devisees or other persons over the testator.

The most that can be said to be proved by the contestants is, that the testator was an old man laboring under some of the infirmities incident to old age, but his mind was sound and his capacity to make a will as good as that of the majority of persons of the same age.

He was suffering from a disease the effect of which was to weaken and ultimately to destroy his mind, but at and near the time when the will was executed he was able to transact ordinary business, and to understand the claims of the members of his family on his bounty.

By wills, prior in date to the one offered for probate, he had made a very different disposition of his property from that made by the one under consideration. This fact is entitled to considerable weight in determining the questions of capacity and undue influence, but if it is true that his children declined to take him to their houses and take care of him, and the devisees took upon themselves the burthen of caring for him, diseased and disabled as he was, it was natural that he should give them his property rather than to his children.

On the hearing, the contestants called as a witness' Samuel W. Butterfield, who testified that he saw Mrs. Cornelius Pullman, one of the devisees named in the will, at his house in September, 1875, and had a conversation with her about the testator and his will.

The counsel for the contestant then asked the witness, what was that conversation.” The question was objected to by the counsel for the proponents as incompetent and immaterial and the objection was sustained.

The contestants’ counsel then offered to prove by the witness that she had said they had got the property. They had got it so fixed that if the children of Horn contested the will, they would have to pay their own costs. He also offered to prove that she had stated that they had consulted a physician beforehand, to see if he was competent to make a will, and that her grandfather was a nice old man, and he would do any thing she asked him to; these offers were severally objected to, and the objections sustained.

The contestants’ counsel then offered to prove that Mrs. Pullman said to Jane Horn, that she (Mrs. P.) thought that what property her grandfather (the testator) has got, when he is done with it, he ought to will to Mrs. P. and her husband, as they were the ones that had worked for him, and done for him and waited on him; they were the ones that ought to have it, and they are going to have it, too. The evidence offered was objected to, and rejected.

The ruling of the surrogate upon these offers of evidence presents . two questions, and these are :

First. Were the declarations of Mrs. Pullman admissible in evidence against herself and husband or against her alone ? and,

Second. If competent, was the evidence offered and rejected so material as that, if received, the surrogate might, upon it, in connection with the other evidence in the case, have refused to admit the will to probate ?

By the will, the farm and property were devised to Pullman and wife, jointly.

It is said, in 1 G-reenleaf on Evidence, section 174, that in the absence of fraud, if the parties (plaintiff and defendant) have a joint interest in the matter in suit, an admission made by one is, in general, evidence against all, * * * and when several were both legatees and executors in a will, and also appellees in a question upon the probate of a will, the admission of one of them, as to facts which took place at the time of making the will, showing that the testatrix was imposed upon, was held receivable in evidence against the validity of the will. (Jackson v. Vail, 7 Wend., 125 ; Osgood v. The Manhattan Co., 3 Cow., 612 ; Aikins v. Sanger, 1 Pick., 192; Smith v. Sergent, 2 Hun, 107.)

The evidence offered was improperly excluded.

We now come to the question, whether the decree of the surrogate should be reversed, because of the improper rejection of the evidence offered.

In Clapp v. Fullerton (34 N. Y., 190) the Court of Appeals held that, if in reviewing the proceedings before a surrogate, it is made apparent upon the whole case, irrespective of evidence improperly admitted, that the testator was clearly competent and that the will was properly admitted to probate, the court below was right in holding that the error was not fatal.

In' thus deciding, the court must have assumed that the illegal evidence did not and could not impair the force of the competent evidence so as to justify the inference, that it operated prejudicially on the mind of the surrogate.

It seems to me, the same principle should be applied when competent evidence is rejected. The court sitting in review of the action of the surrogate should inquire whether, if the evidence rejected had been received and a finding in conformity therewith had been had, the court would affirm the decreee. If it would, then the decree should be reversed by reason of the rejection of the evidence offered, otherwise the error should be disregarded.

In this case, neither insanity nor undue influence was established by the contestants. The proof offered and rejected, although com- / petent upon one or both of these questions, fell far short of establishing either, nor would it establish either when added to the other evidence in the case upon those issues.

The decree of the surrogate should be affirmed, with costs.

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

Decree of surrogate affirmed, with costs.


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    CHARLES BUCHANAN, Appellant, v. JOHN W. SMITH, Respondent.

      Loan of articles for a specific pv/rpose — liability of borrower, if they a/i'e used for other purposes — bwrden of proof, as to cause of itvjwries.

    Plaintiff loaned a yoke of oxen to defendant to plow up a hedge. Defendant used them not only for this purpose, but also to draw stone and to load large stone upon a stone-boat. Reid, that drawing stone and rolling them on a boat were not the uses for which the oxen were loaned, and that defendant was lia ble for any injuries to the cattle occasioned thereby.
    Upon the trial of an action to recover for injuries sustained by one of the oxen, it appeared that the oxen were sound when taken by defendant; while in his control they were put to unauthorized uses; that when returned one of them was lame. Defendant gave no evidence as to how the injury was occasioned. Reid, that it was a reasonable inference that the injury occurred while they were improperly used.

      Appeal from an order of the County Court of Wayne county, denying a motion by plaintiff for a new trial, made on a case and exceptions after a nonsuit had been been directed by the court.

      M M. Walker, for the appellant.

      J. W. Hoag, for the respondent.
   Mullin, P. J.:

In April, 1875, the defendant’s wife applied to the plaintiff, in behalf of defendant, for the use of a yoke of oxen, of which he was the owner, to plow up a hedge. Defendant consented, and the next day defendant’s son went to plaintiff’s house and got the cattle. They were then sound and in good order. They were returned in the afternoon of the same day, about three o’clock; one of them was then lame in the shoulder, and the leg was covered with mud. The lameness continued some three months, and plaintiff paid out three dollars for medicine for it.

About nine a. m., of the day on which the oxen were taken by defendant, it began to storm, and it rained and snowed for about two hours. The cattle were used during the storm, not only in plowing the hedge, but in drawing stone and in loading a large stone on a stone-boat.

The defendant had pulled up alder bushes in the vicinity of the hedge, leaving holes in the ground where the alders had grown.

Defendant told plaintiff that the ox had stepped on a rolling stone and had thus caused its lameness.

Several witnesses were permitted to testify, notwithstanding the defendant’s objection, that it was not proper to use the oxen in the storm, although it came on while the cattle were used by defendant.

No evidence was given on the part of the defendant. The action was commenced in a Justice’s Court of the county of Wayne to recover damages for the injury to the ox, and for loss of its service. The plaintiff had judgment.

The defendant appealed to the County Court of the county of Wayne, and, on the trial, the facts hereinbefore set forth'were proved on the part of the plaintiff.

The court, ou motion of the defendant, nonsuited the plaintiff. To which ruling and decision the plaintiff’s counsel excepted.

The plaintiff’s counsel moved for a new trial in said court, and the motion was denied, with costs, and from that order the plaintiff appeals to this court.

The general rule is, that to entitle a plaintiff to recover for injury to property hired by him to another for a compensation to be paid by the lattter, he must prove that the injury was caused by reason of the negligence of the hirer. (Story on Bailments, §§ 397, 399, 413 ; Harrington v. Snyder, 3 Barb., 380.)

The hirer is bound to exercise ordinary care in the use of the property, and if he fails to use that measure of care, he is responsible to the owner for the damages resulting from his neglect. (Story on Bailments, sections above cited.)

The hirer cannot use the property hired for any purpose other than that for which he disclosed to the owner he intended to use it; and if he appropriates it to another use, and it is injured while so used, the hirer is liable for whatever damages are sustained by it, but he may be liable also as for a conversion of it. (Story on Bailments, § 413; Collins v. Bennett, 46 N. Y., 490.)

Drawing stone and rolling them on to & stone-boat were not the uses to which plaintiff was informed the oxen. were to be applied; and the defendant was therefore liable for the damages sustained by them. The defendant’s counsel insists that before the defendant can be held liable for the wrongful use of the oxen, it was incumbent on the plaintiff to prove that they were injured while so improperly used.

They were shown to be sound when taken by defendant; that they were used for purposes not disclosed to the plaintiff, and one of them was lamed while in defendant’s custody; he could have proved precisely how the injury occurred, but did not, and the inference was a reasonable one that the injury' occurred while they were improperly used. (Collins v. Bennett, strpra.)

It is said that the plaintiff proved by the admission of the defendant how the injury was done to the ox, and that was by stepping on a rolling stone. But the mud on the leg, and the lameness of the shoulder would indicate that it had stepped into a hole and had thus sprained the limb.

Tbe mud ou the leg is accounted for by the defendant’s counsel as caused by the ox stepping in the furrow, and cites us to the testimony of the witness Taintor. Taintor does not testify to any such thing. He says the lame ox was the one that would go in the furrow. But it is not proved that he went in the furrow, or that any furrow was made.

No connection is proved between the storm and the injury, and we cannot assume that the use of the cattle during the storm contributed in any degree to the injury.

The plaintiff was improperly nonsuited. The order refusing a new trial must be reversed and a new trial granted, costs to abide event.

Present — Mullin, P. L, Talcott and Smith, LI.

Order of County Court reversed and a new trial granted, costs to abide event.


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    CAROLINE PEACH, Respondent, v. THE CITY OF UTICA, Appellant.

      Oity of Utica — liability of, for defects in highway —funds in treasury to malee repairs, not essential to — Bight of persons with defective sight to travel in streets — Notice to city — how proved.

    In an action against the city of Utica to recover for injuries sustained in consequence of a defect in a street therein, held, that as the common council was declared by the charter to be commissioners of highways, the city was bound to keep the streets and walks in repair, and in case it failed so to do, and injury resulted therefrom, it was liable to the person injured for such damages as he might sustain thereby.
    Such liability does not depend upon whether or not the city has funds in its treasury to pay for making or repairing streets, but upon the question whether or not it has the power to raise funds to defray such expenses.
    The fact that a person is old, and that his sight is defective, does not deprive him of the right to travel in the streets and upon the walks, provided he uses such reasonable care and caution as a person laboring under those infirmities would ordinarily exercise.
    Although notice to one of the aldermen of a defect in the highway is not enough to charge the city, with notice, yet guare, whether notice to a considerable number of the aldermen would not be sufficient.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      John D. Kernan, for the appellant.

      8. J. Barrows, for the respondent.
   Mullin, P. J.:

Appeal from a judgment in favor of the plaintiff, rendered at the Oneida Circuit in January, 1876.

The plaintiff, in the evening of the 8th of May, 1875, while passing from a store in the city of Utica, where she had gone to make purchases, stepped, as she claims, into a hole in the sidewalk on the westerly side of Steuben street, in said city, at the crossing of Hobart street, broke the tendon at or near the heel of one of her feet, was made lame, suffered a good deal of pain and was unable, for a considerable time, to leave her house, and at the time of the trial she was still suffering from the injury.

It was proved that she was seventy-four years of age; her sight was defective; she used spectacles when she was following her business, which was that of sewing, but did not have them on while she was on her way to and from the store. She was not accustomed to travel in the night. There were three young ladies in company with her at the time of the injury, two of them walked some feet ahead of her, the other only about a foot from her, they passed the hole in safety. The accident occurred about nine o’clock in the evening, and it was then quite dark. She exercised no particular care in traveling along the walk.

One of the aldermen of the city was called as a witness by the plaintiff, and was asked by the plaintiff’s counsel whether, prior to the day of the injury, he had crossed Hobart street on the westerly side of Steuben. The question was objected to by the defendant’s counsel. The plaintiff’s counsel stated the object of the question was to show he knew the walk was out of repair. The objection was overruled, and defendant’s counsel excepted.

The defendant’s counsel moved for a nonsuit on the grounds:

First. That defendant is not liable in actions of this nature, as it acts judicially under its charter, and it has no funds under its control for the purpose of repairing or relaying side or crosswalks. It has no power to use any portion of the general city funds for such a purpose.

Second. The plaintiff was chargeable with negligence contributing to the injury.

It was proved that the plaintiff, after the injury, without the approval of her physician, had applied poultices to the injured parts for a period of some two weeks, and the defendant’s offered to show that in other cases the injury had been aggravated by such treatment. The evidence was objected to, and rejected.

The defendant’s counsel requested the court to charge the jury, that ordinary care and prudence on a dark night requires the vigilant'uses of her senses of sight and feeling in a person of the plaintiff ’s age, with her faculties.

The court said in reply: “ I would not put it in that shape, perhaps, but substantially that. I would say it requires such care as a reasonable person under such circumstances ought to exercise.”

The defendant’s counsel excepted to the modification of the offer made by the court and insisted that the charge should be in the language of the request.

The plaintiff had a verdict for $500, upon which judgment was entered, and from it the defendant appeals.

The appellant having appealed from the judgment only, we can review only questions of law. To enable us to review the facts, there should have been a motion for a new trial and an appeal from the order refusing it. (Thurber v. Harlem Bridge, etc., R. R. Co., 60 N. Y., 326.)

A nonsuit was properly refused on the first ground stated by the counsel.

The common council are declared by the charter to be commissioners of highways within the limits of the city, and being such, the city is bound to keep the streets and walks in repair, and if not done and injury results from the omission, it is liable to the person injured for such damages as he may thereby sustain. (Conrad v. The Trustees of Ithaca, 16 N. Y., 158; West v. The Village of Brockport, id., 161; Hines v. City of Lockport, 41 How. Pr. R., 435.)

The liability does not depend upon whether the city has funds in its treasury to pay for making or repairing streets and walks, but whether it has the power to raise funds to defray such expenses. (Hines v. City of Lockport, supra.)

The city of Utica has ample power to raise money for such purposes. (Chap. 18, Laws of 1862, § 108.)

If the defendant’s counsel is right in his proposition that the defendant is not liable for the injury in this case, because it is clothed with judicial power to determine when the streets or walks are out of repair, or because it has not ample power to raise'funds to pay for repairs of streets and walks, the Court of Appeals and the Supreme Court have erroneously decided a large number of cases within the last thirty years.

The second ground on which a nonsuit was asked for was equally untenable with the former onel

There was -no proof of contributory negligence on the part of the plaintiff. Because she was old and her sight imperfect, she was not deprived of the right to travel in the streets and upon the walks, using such reasonable care and caution as a person laboring under these infirmities would ordinarily exercise. In the language of Hunt, Ch. J., in Davenport v. Ruckman (37 N. Y., 568, 573): “ The streets and sidewalks are for the benefit of all conditions of people, and all have the right in using them to assume that they are in good condition, and to regulate their conduct upon that assumption. A person may walk or drive in the darkness of the night, relying on the belief that the corporation has performed its duty, and that the street or the walk is in a safe condition. * * * So one whose sight is dimmed by age, or a near-sighted person, whose range of vision was always imperfect, or one whose sight has been injured by disease, are each entitled to the same rights and may act upon the same assumption.”

The court very properly rejected evidence of the effect of poultices in cases other than the one on trial.

It was for physicians to say whether poultices were properly applied by the plaintiff, having regard to the kind as well as to the length of time they were so applied. The effect of them in particular cases was not a proper subject of inquiry.

In order to charge the city with negligence in not repairing the walk at the place where the injury occurred, it was incumbent on the plaintiff to prove that the common council knew of the defect a sufficient length, of time before the accident to have enabled it to repair it.

Notice to one of the aldermen was not enough, but the evidence of notice to one of them was so immaterial that it could not injure the defendant. Several witnesses swore to the existence of the defect in the walk.weeks before the accident, long enough to authorize the inference that it was known to the common council for a sufficient length of time to enable them to repair it.

I am not prepared to say that notice to the common council of a defect in a street or walk may not be proved, by showing that it was known to a considerable number of the aldermen. If it may be, then proof of notice to one, although not enough perhaps to charge the common council with notice, yet it is admissible as a link in the chain of proof and cannot be rejected as wholly incompetent, but if sufficient evidence is not given to establish notice, the party complaining of • the evidence should move to strike it out.

The court charged the jury substantially as requested by the defendant’s counsel, and was not obliged to charge in the precise language of the request. The judgment must be affirmed.

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

Judgment affirmed.


author: Mullen, P. J.:

text:
    JOHN B. BURNET and JOHN W. BARKER, Committee, etc., of MOSES D. BURNET, a lunatic, Appellants, v. JEAN E. BOOKSTAVER and DANIEL BOOKSTAVER, Respondents.

      Qom/mttee of estate and person of hmatia — cannot bring action of ejectment.

    The committee' of the estate and person of a lunatic cannot bring, in his own name, an action to recover the possession of real property alleged to have belonged to the lunatic prior to his appointment.
    Such action must be brought in the name of the lunatic.
    Such a committee is not the trustee of an express trust, within the meaning of section 113 of the Code of Procedure.

      Appeal from an order of the Special Term nonsuiting the plaintiff herein, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Hiscock, Gifford da Doheny, for the appellants.
    The committee in whose names, as plaintiffs, this action was brought are “trustees of an express trust,” and as such entitled to maintain it as brought by them. (Code of Procedure, § 113; Wait’s Practice, vol. 1, p. 105 ; Persons v. Warren, 14 Barb., 488, 491, 496; Damis v. Carpenter, 12 How., 287; Thomas v. Bermett, 56 Barb., 197.) The objection should have been taken by demurrer under section 148 of the Code, and not having been so taken, the same was waived. (Bobbins v. Wells, 26 How., 15 ; Pabner v. Damis, 28 N. Y., 242; Fulton Fime Ins. Co. v. Baldnom, 37 id., 648; Van Amringe v. Barrett, 8 Bosw., 357.)

      Buger da Jernney, for the respondents.
    An action at law to recover the possession of real property belonging to a lunatic must be brought in the name of the lunatic. (Petrie v. Shoemaker, 24 Wend., 85; 1 Hill, 97; 8 Barb., 552; Fields v. Parsons, 9 N. Y. S. C. [1 Hun], 400.)
   Mullen, P. J.:

The plaintiffs, as the committee of the person and estate of Moses D. Burnet, bring this action to recover the possession of certain real estate in the city of Syracuse which belonged to the lunatic before the appointment of the plaintiffs as his committee, alleged to have been illegally entered upon, and to be illegally withheld by the defendants.

The defendant Jean in her answer denies the complaint, and as a further defense alleged that in consideration that she would remove from her residence at Dunkirk and occupy the premises in question in the suit, and take care of said Burnet and wife (they furnishing their own support) during their lives and the life of each of them, he, said Burnet, would, by will, devise said property to said Jean in fee, or convey the same to her by deed. She avers that, in pursuance of the said agreement, she removed to Syracuse and went into possession of said premises and took care of said .Bur-net and wife, and is therefore entitled to a conveyance of said premises.

On the trial at the Onondaga Circuit in May, 1876, the plaintiffs proved their appointment as committee of the person and estate of said Burnet, and the possession of defendants, and rested.

The defendants then moved that plaintiffs be nonsuited, because the action should have been brought in the name of the lunatic and not in the names of the committee.

The motion was granted and the plaintiffs nonsuited.

The plaintiffs’ counsel asked leave to amend by altering the title of the action, so that it should be brought by the lunatic by his committee, but the court refused to allow the amendment.

The plaintiffs’ counsel moved for a new trial on the judge’s minutes, which was refused.

The plaintiffs appeal from the order directing the nonsuit, and from the order refusing a new trial.

Before the enactment of the Code of Procedure both legal and equitable actions on behalf of lunatics were required to be brought in their names by the committee of their persons and estates, except in equity, when the action was to set aside a deed or the act of the lunatic on • grounds of insanity, the action might be brought in the name of the committee. (Petrie v. Shoemaker, 24 Wend., 85; Lane v. Schermerhorn, 1 Hill., 97; 2 Barb. Ch. Pr., 223.)

In 1845, the legislature passed an act entitled “An act in relation to the powers of receivers and committees of lunatics and habitual drunkards.” (Chapter 112 of the Laws of that year.)

By the second section of that act committees of lunatics, etc., appointed by order of the Court of Chancery, were authorized to sue in their own names for any debt, claim or demand, transferred to them or to the possession and control of which they are entitled.

As tó all other causes of action the lunatic was still a necessary party.

The reason why the action was required to be brought in the name of the lunatic was, that the legal interest in the subject of the action was in him and not in his committee.

Section 111 of the Code requires the action to be prosecuted in the name of the real party in interest, except as otherwise provided in. section 113. Section 113 provides, that an executor or administrator, a trastee of an express trust, or person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.

The appellants’ counsel insists that the plaintiffs, as the committee of the person and estate of the lunatic, are the trustees of an express trust within the meaning and intent of this action, and as such can maintain the action in their own names.

Story, in his Commentaries on Equity (second volume, section 964), defines a trust as follows: “ A trust in the most enlarged sense in which that term is used in English jurisprudence, may be defined to be an equitable right, title or interest in property, real or personal, distinct from the legal ownership thereof.”

In the introduction to Hill on Trustees, a trustee is defined to be “ a person in whom some estate, interest or power in or affecting property of any description is vested for the benefit of another.” The author then proceeds as follows: “ This definition would include executors and administrators, guardians of infants and committees of lunatics, as thus filling a fiduciary situation. It would also extend to bailees, factors and agents, whose duties in their fiduciary characters are recognized and enforced at common law.” ■

The trustee treated of in his wort is not embraced in either of the classes last named, but is the person recognized as such by and is amenable only to courts of equity.

It is one of the essential elements of a trust, that the title to, or some interest in, property should vest in the trustee to be held for the benefit of another.

Before the Code it was held, as already stated, that the committee of a lunatic could not maintain an action of ejectment in his own name for lands of the lunatic, because the committee has no estate in the lands. (Petrie v. Shoemaker, 24 Wend., 85.)

In Lane v. Schermerhorn (1 Hill, 97), Bronson, J., after referring to the decision last cited, and reaffirming the principle laid down in it, adds: The committee is a mere bailiff or servant, and the interest and right of action remain in the lunatic.”

The act of 1845 above cited gives to the committee a power to sue for claims due to the lunatic, and, as a conveyance, gives to him an interest in the claim sufficient to maintain the action, but no legal interest is given to the committee in any other property of the lunatic.

The law, as it existed when the cases in 24 Wendell and 1 Hill were decided, has never been changed, and the committee of a lunatic has no greater estate or interest in the real estate of the lunatic now than he had then.

Is the committee of a lunatic the trustee of an express trust ? The term “ express trust ” is not to be limited to express trusts defined in the Revised Statutes, but embraces all valid trusts, the duties and purposes of which are expressly defined as distinguished from implied or constructive trusts.

By section 1, title 2, chapter 5, part 2 of the Revised Statutes (vol. 3, p. 134, § 1 [5th ed.]), it is provided that the Supreme Court shall have the care and custody of all idiots, lunatics and persons of unsound mind, and of their real and personal estates, so that the same shall not be wasted or destroyed, and shall provide for their safe keeping and maintenance, and for the maintenance of their families, etc.

The court, and not the committee, is the trustee of the property of the lunatic, and the committee is the mere servant or bailiff of the court to carry into effect its directions, concerning the management and disposition of the estate.

In equity, the committee of a lunatic has been permitted to maintain an action to set aside a deed or other instrument executed by the lunatic when insane. (Person v. Warren, 14 Barb., 488; Fields v. Fowler, 2 Hun, 400.) But I do not find that the committee has ever been permitted to maintain a purely legal action in his own name

I am therefore of the opinion that the learned judge was right in nonsuiting the plaintiff.

Why he refused leave to plaintiff to amend by making the lunatic the plaintiff is not disclosed, but we are bound to presume that it was properly refused. Had it been granted, it must have been upon terms of paying the whole costs up to and including the trial. After the nonsuit he would have been permitted to amend upon the same terms.

The order denying the motion for a nonsuit is affirmed.

Present — Mullin, P. J., Taloott and Smith, JJ.

Judgment and order affirmed.


text:
    ROBERT ELLIOTT, Appellant, v. BENJAMIN G. LEWIS, Respondent.

      Deed — description in — survey must commence at place of beginning.

    In determining what premises are conveyed by a deed, the survey must he commenced at the place of beginning designated in the deed, unless it clearly appears that to do so would destroy the grant.
    The fact that to commence at said point would give to the grantee more or less land than the deed calls for, does not authorize a departure from the general rule.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The action was in ejectment, and the accompanying diagram, offered in evidence on the trial, shows the location of the premises in dispute.

      Bamdall <& JRcmclall, for the appellant.

      B. G. Lewis, respondent, in person.
   Mullin, P. J.:

This action is brought to recover a strip of land, of which plaintiff claims to be owner, in Central Square, in the county of Oswego, and is parcel of a larger tract which he alleges he owns, and of which parcel defendant is unlawfully in possession.

The deed describes the whole lot conveyed to plaintiff, as follows: Beginning at the north-west corner of the store on the lot, thence north thirty-three degrees east seventy-eight feet; thence south fifty-seven degrees east, to the road running to Smith and Brewster’s mills; thence along said road south forty-nine degrees west, to the road leading to Constantia; thence north fifty-seven degrees west, to the place of beginning.

The north-west comer of the store is a well known monument, and commencing at that point and miming the lines according to the calls in the deed, the piece of land in dispute belongs to the plaintiff.

The referee in his findings disregards the place of beginning mentioned in the deed, and holds the place of beginning to be the south-west corner of the store. Beginning at the south-west corner and following the courses in the deed, the land in dispute belongs to the defendant and not to the plaintiff.

The referee declines to begin at the north-west corner of the store, for two reasons:

First. Because it would give to plaintiff considerably more land than he is entitled to under his deed; and,

Second. Because the last course in the deed would carry the line diagonally through the store, thus excluding from the conveyance a considerable part of the land.

A grantee is entitled as against his grantor and all those claiming under him by grant, subsequent to the conveyance to such grantee, to all the land embraced in his deed, and whether the quantity is more or less than was intended to be conveyed, the title passes and the grantee is owner so long as the deed remains unreformed.

Tf other persons have acquired a better title to part of the land covered by the deed, the grant will be restricted accordingly.

If the deed to plaintiff conveys to him the strip of land in dispute, it does not help the defendant that there is a mistake in a course in the deed that does not touch the land in controversy.

The referee could not disregard the place of beginning mentioned in plaintiff’s deed and adopt another, because it might in his own opinion more correctly give effect to the intention of the parties. The survey must commence at the place designated for its commencement in the deed, unless, perhaps, it clearly appears that to adopt it would destroy the grant.

It was held, in Wendell v. Jackson (8 Wend., 183), that when a tract of land in a patent is described as beginning at a corner of another tract, and the termination of the third course given in the grant is described in another patent subsequently issued as a clump of rocks on the shore of a lake, if the corner mentioned as the place of beginning is sufficiently ascertained by proof, the location of the premises granted must be made by commencing at such corner, although in doing so, by pursuing the courses and distances, the clump of rocks will not b« reached, the third course will be shortened one-half, one whole course will be lost, one end of the tract thrown into the- form of an acute angle, instead of having a base of fifty chains, and the quantity of land be reduced nearly one-balf. (Jackson v. Wendell, 5 Wend., 142; Jackson v. Wilkinson, 17 Johns., 146; Smith v. McAllister, 14 Barb., 434; Van Wyck v. Wright, 18 Wend., 157.)

The error as to the place of commencing the survey is fatal to the judgment.

It is possible that the defendant may claim to the fence, -as located by Burden, on the northerly line of the store lot, and that although plaintiff’s deed extended beyond that fence, yet he did not occupy all to which his deed entitled him, but whether this is so or not plaintiff does not claim any land beyond seventy-four feet from the north-west corner of the store, so that the inquiry as to whether the remaining fourteen feet is covered by the deed, ceases to be material.

I have not examined the other exceptions discussed by the appellant’s counsel in the brief; as the evidence and rulings on another trial may be essentially different, it will be time enough to consider them should they be again presented.

The judgment is reversed and a new trial granted before another referee, costs to abide event.

Present — Mullin, P. J., Talcott and Sunn, JJ.

Judgment reversed and new trial granted before another referee, costs to abide event.


author: Mullen, P. J".:

text:
    MARIETTA A. GATES, Respondent, v. THE PENN FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance — when company estopped by acts of agent.

    An. agent of defendant having been informed that plaintiff wished to procure a policy of insurance upon a stable owned by him, had a conversation with him, in which plaintiff stated that he held the place under a contract, and that the vendor owed him enough to pay all that was due upon it. Subsequently the agent sent plaintiff a policy in which it was stated that the plaintiff was the owner. No written applieation was made or signed by plaintiff. The policy provides that the person procuring the insurance, other than the assured himself, should be deemed the agent of the assured. Plaintiff, at the time of the conversation, had no knowledge of the conditions or provisions of the policy.

      In an action upon the policy the defense was a violation of a condition providing that if “the interest of the assured were any other than the entire, unconditional and sole ownership, it must he represented to the company and so expressed in the written part of this policy, otherwise the policy shall he void.” Held,

    (1) That as plaintiff was ignorant of the provision contained in the policy making the agent of the company his agent, he was entitled to treat him ,as the agent of the company.
    (2) That as it was the duty of the agent to insert in the policy plaintiff’s interest in the premises as it had been disclosed to him, the company was estopped from setting up his failure so to do as a defense to the action.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury.
    The action was brought'upon a policy of insurance issued to one Yolney J. Warren, and by him assigned to the plaintiff.
    The policy insured "Warren “on his farm building occupied by him as a livery, barn,” etc. It also contained the following provisions:
    “References being also had to the application of the assured, which forms part of this policy, and is a warranty on the part of the assured.
    “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on .leased ground, it must'be represented to the company, .and so expressed in the written part of this policy, otherwise the policy shall be void.
    “ It is expressly understood and agreed that the person or persons, if any other than the assured, who have procured this insurance to be taken by this company, shall be deemed the agent or agents of the assured, and not of this company, in any transactions relating to this insurance.”

      F. W. HublwrcL, for the appellant.

      Ff. Whitmg, for the respondent.
   Mullen, P. J".:

By the evidence in this case it appears that a short time prior to the 16th June, 1874, Yolney "Warren applied to R. R. Browne, an insurance agent residing and doing business at Carthage, in Jefferson county, to insure his livery stable, bam and dwelling-house, situate in the village of Carthage aforesaid.

Browne could not take the risk, and wrote E. J. Clark, defendant’s agent, at "Watertown, in said county, requesting him to take it. Clark went to Carthage, and on the morning of the 16th June met said Warren and told him he and Levi, an agent of said Clark, were round trying to get some policies and wanted to know if he (Warren) would like one. The rate that Clark would charge was then talked over. Clark asked him how his property stood, and W. told him he owned every thing free and clear, with the exception of $400 due on the contract, and that Warren, the vendor of the land owed him (W.) enough, if he paid it up, to have it all free and clear. W. further told C. that he had erected the buildings, and their cost.

It was also proved that Clark returned to Watertown, filled out the policy and sent it to Levi, who delivered it to Warren.

Warren had no knowledge of the contents or conditions of the policy when the conversation at Carthage was had with Clark.

The policy speaks of an application of the assured, as forming a part of it, and as being a warranty on the part of the assured, but no application was produced or proved on the trial.

• We must assume the fact tobe that no application was made by the assured except a verbal one, and that the defendant’s agent inserted in the policy a description of the property without the knowledge of the assured, and without stating therein the nature of the title or interest of the assured in the property communicated to him by Warren.

The assured, at the time he made the application to Clark to insure his property, had no knowledge of the provisions of the policy, and could not know that by it, Clark, in taking the application, was to be deemed his agent and not the agent of the company. He had the right to treat Clark as the agent of the company, and possessing the power to agree upon the amount of premium to be paid to fill up the policy and to deliver it to him as an operative instrument.

It was Clark’s duty to insert in the policy the nature of Warren’s interest in the property, as it had been disclosed to him, and failing to do it the defendant is estopped from objecting to the validity of the policy by reason of such omission. (Baker v. The Home Life Ins. Co., not reported, opinion by Allen, J.; Insurance Co. v. Wilkinson, 13 Wall., 222.)

But it is said that, by the terms of the policy, Clark was the agent of Warren, and not of the defendant. He would have been so bad Warren known that the policy contained such a provision, but he did not.

He treated Clark, in the proceedings to effect an insurance, as the agent of the company, and gave him all the information necessary to enable him to propose a valid policy. Clark, if he had ever read the policy issued to a person insured by defendant, knew that he was not the agent of the defendant, but was the agent of the insured. The company, therefore, and not the insured, should bear the consequences of the blunder of the agent.

The conditions of the policy, as to the insertion therein of the notice of insured’s interest in the property, if less than a fee, was never in force as between Warren and the defendant. It was never known or assented to by him. (Rowley v. The Empire Ins. Co., 36 N. Y., 550.) The judgment must be affirmed.

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

Judgment affirmed.


author: Mullin, P. J.

text:
    RUSSELL SUNDERLIN, Respondent, v. JOHN A. WYMAN, Appellant.

      Chattel mortgage — certified copy of — admissible as evidence of the date of filing, but not of the existence and execution of the mortgage.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought for-the conversion of two pairs of horses and two single horses, of which plaintiff claimed to be the owner.
    The plaintiff claimed title by virtue of a sale under a chattel mortgage, and the defendant, by a sale under an execution upon a judgment recovered against the owner.
    Upon the trial, the plaintiff gave in evidence a copy of the chattel mortgage, certified by the register of the city of New York, in whose office the original was filed.
    With reference to this, the court at General Term said: “ On the trial, the plaintiff offered in evidence a copy of said mortgage, duly certified by the register of New York, in whose office the original was filed, together with the certificate of the clerk of the city and county of New York, that the officer taking the acknowledgment of said mortgage was a notary public of said city, duly commissioned and sworn.
    The defendant’s counsel objected to the certificate of the register, that it was not evidence of the time of filing. The objection was overruled, and defendant’s counsel excepted.
    The register is not presumed to know that the paper he found on file was the original mortgage. He could certify only that a paper, describing it by its number, or the names of parties, etc., was on file, and the time of filing entered thereon.

      A copy of a mortgage certified by tbe officer in whose office it is filed, does not prove tbe existence and execution of tbe original mortgage. (Rissell v. Pea/ree, 28 N. Y., 252.)
    Tbe original must be produced, and when produced, tbe time of fibng, if it was filed, will be proved. If a copy only was filed, a duly certified copy of tbe copy, with tbe time of filing noted thereon, will prove tbe filing of sixcb copy.
    “ Tbe defendant’s counsel did not object that tbe original was not produced. He must be held, therefore, to have accepted tbe certified copy in lieu thereof, and tbe time of fifing tbe copy was, therefore, proved. He cannot, on tbe argument of tbe appeal, insist upon any objection not taken at tbe trial, unless it be one that could not have been obviated bad it been raised. Tbe objection that tbe certificate does not, in terms, set forth that tbe original mortgage was filed, and that tbe paper produced is not proof of tbe execution and fifing of tbe mortgage, might have been obviated bad they been raised.”

      p[. 0. Kmgsbury, for tbe appellant. Morris <& Russel, for tbe respondent.
   Opinion by

Mullin, P. J.

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

Judgment affirmed.