Volume 99 — New York Reports

(Reported below, 35 Hun, 220.) The petition upon which the proceedings were based, stated that the lands were required by the petitioner for the purpose “ of erecting or maintaining warehouses for the reception of freight and merchandise, to be transported by it and for delivery and transfer to others of freight transported by it, and for the purpose of operating its said railroad, and for the purpose of its incorporation.” .

(Reported below 30 Hun, 415.) The nature of the action and the material facts are stated in the opinion. The obligation to fence is of purely statutory creation. (Holladay v. Marsh, 3 Wend. 142; Stafford v. Ingersoll, 3 Hill, 38; Ryan v. R. R. Co., 9 How. Pr. 453; Tonawanda R. R. Co. v. Munger, 5 Den. 255; 4 N. Y. 396; Corwin v. R. R. Co., 13 N. Y. 42; Bush v. Brainard, 1 Cow. 78; Smith v. Waldorf, 13 Hun, 127; Victory v. Baker, 67 N. Y. 366; Beck v. Carter, 23 Am.

<p>Appeal from, judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made January 7, 1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. -</p> <p>This action was brought upon a policy of fire insurance. The material facts are stated in the opinion.</p> <p>Insurance contracts may lawfully be made by paroi. (Angell v. Hartford F. Ins. Co., 59 N. Y. 171; Trustees, etc., v. Brooklyn Co., 19 id. 305; Fish v. Cottenet, 44 id. 538; Winne v. Niagara Ins. Co., 91 id. 185; O'Reilly v. Corporation, 19 Weekly Dig. 147; Ins. Co. v. Ins. Co., 19 How. [U. S.] 318; Kelly v. Commonwealth Co., 19 Bosw. 82.) A preliminary oral agreement for a policy, without reference to the length of time it is to run, binds the insurer; and if the fire occur within the contemplated time, the insurer is liable, although the written policy has not been issued. (Ellis v. Albany City Ins. Co., 50 N. Y. 406; Ins. Co. v. Colt, 20 Wall. 560; Angell v. Hartford Ins. Co., 59 N. Y. 71; Kelly v. Commonwealth Co., 10 Bosw. 82; Hotchkiss v. Germania Co., 5 Hun, 90.) Both parties were bound by defendant’s declaration to the plaintiff’s agent that the policy “ was renewed.” (Trustees v. B. Ins. Co., 19 N. Y. 305; Winne v. Ins. Co., 91 id. 185.) The fact that the written policy, executed pursuant to agreement and entered on the book of the company, had not actually been handed to Mr. Hamlin, is of no importance. (Hallock v. Ins. Co., 26 N. J. 268; Kohne v. Ins. Co. of N. A., 1 Wash. C. C. 93; Lightbody v. N. A. Ins. Co., 23 Wend. 18; Ins. Co. v. Colt, 20 Wall. 560; Whitaker v. Farmers' Union Ins. Co., 29 Barb. 312.) The condition of the policy that the premium must be actually paid before defendant was liable, it could waive. (Bodine v. Ex. Ins. Co., 51 N. Y. 117; Trustees v. Brooklyn Ins. Co., 19 id. 305; Hotchkiss v. Germania Co., 5 Hun, 90; Kelly v. Commonwealth Co., 10 Bosw. 82; O'Reilly v. Corp, 19 Weekly Dig. 147.) No tender of the premium was necessary to enable the plaintiff to sue on the policy. (Washoe Co. v. Hibernian Co., 7 Hun, 74.) The insurance ran to C. F. D i elman n & Co., and that firm had an insurable interest in the premises, and the death of. one partner did not invalidate the insurance. (Hoffman v. Ins. Co., 32 N. Y. 405; Wilson v. Ins. Co., 16 Barb. 511; Lockwood v. M. Mut. Assurance Co., 47 Conn. 553; Hine v. Woolworth, 93 N. Y. 75; Burbank v. R. Ins. Co., 24 N. H. 550; Georgia H. Ins. Co. v. Kinnear, 28 Gratt. 88.) The interest of Dielmann & Co. in the * premises, although not the ownership of the fee or of the leasehold, being a valuable right to occupation, was an insurable interest. (Rohrbach v. Ins. Co., 62 N. Y. 47; Wood on Ins., § 266.) The effect of the mortgagee clause is to make the insurance a direct contract with the mortgagee, who is free from responsibility for the owner’s acts. (Hastings v. Westchester Ins. Co., 73 N. Y. 141.) If this provision of the policy be deemed a wan-anty, it perhaps does come within the general rule that warranties in an insurance policy constitute conditions precedent. (Armould’s Mar. Ins., part 1, chap. 3; May on Ins., § 156 ; Wool on Ins., § 176.) The plaintiff in such a case is not required, before he rests, to prove his performance of the warranty or its truth. (Jones v. B. Ins. Co., 61 N. Y. 79; Swick v. H. L. I.ns. Co., 2 Dill. 160; Seele v. Gresham L. Ins. Soc., 15 Jur. 11, 61; Wood on Ins., § 245; Newman v. S., etc., Ins. Co., 17 Minn. 123; Ritter v. Sun, etc., Ins. Co., 40 Mo. 40; Lattawus v. Farmers', etc., Ins. Co., 3 Houst. [Del.] 404. Increase of risk means material increase, and additional risk is not necessarily material increase. (Parker v. Arctic Ins. Co., 59 N. Y. 1.) Whether the increase of risk be material or not is always a question for the jury. (Williams v. People's Ins. Co., 57 N. Y. 274; Robinson v. Mercer Ins. Co., 27 id. 134; Curry v. Com. Ins. Co., 10 Pick. 535.) If the burden of proving a disclosure of increase of risk, if it existed, were upon the plaintiff, defendant’s omission when mentioning other grounds for the dismissal, to mention this defect of proof, was a waiver of it. (Scott v. Morgan, 94 N. Y. 508; Cook v. Whipple, 55 id. 150; Coates v. Nat. Bk., 91 id. 20.) The question of increase of hazard was one for the jury. (Clemence v. City of Auburn, 66 N. Y. 338; Carl v. Ayres, 53 id. 14; Putnam v. Broadway R. Co., 55 id. 108.)</p> <p>As by the terms of the policy, a “false representation or concealment by the assured or his agent concerning ownership ” avoids the policy, the original policy was void at the outset. (Graham v. F. Ins. Co., 87 N. Y. 69; Savage v. H. Ins. Co., 52 id. 502; Sherwood v. A. Ins. Co., 73 id. 447; Lappin v. Charter Oak Ins. Co., 58 Barb. 364; Phelps v. Gebhard Ins. Co., 9 Bosw. 23; Wyman v. Wyman, 26 N. Y. 253; Story on Agency [9th ed.], §§ 129, 140; Proudfoot v. Montefiore, L. R., 2 Q. B. 511; Ward v. Warren, 82 N. Y. 265; Dupee v. Norwood, 10 Jur. [N. S.] 851; Lasher v. St. J. F. & M. Ins. Co., 86 N. Y. 423.) The “ mortgagee’s clause” does not protect the mortgagee in this case, because here he is the party committing the breach of conditions precedent to the very existence of the renewal contract. (Graham v. F. Ins. Co., 87 N. Y. 69; Hastings v. W. Ins. Co., 73 id. 141; Titus v. G. F. Ins. Co., 81 id. 410.) Conceding that the plaintiff could have recovered if he had sued upon the alleged contract for a new policy, yet, not having done so, the court had no power to amend the complaint, even if the plaintiff had so requested, and therefore no error was committed in dismissing the complaint. (Code of Civil Pro., § 723; Van Syckles v. Perry, 3 Robt. 621; Storrs v. Flint, 46 Sup. Ct. 498; Reeder et al. v. Sayer, 70 N. Y. 180; Southwick v. First Nat. B’k, 84 id. 420.)</p>

The nature of the action and the material facts are stated in . the opinion. The evidence of Dr. Briggs, as a witness for the plaintiff, should have been excluded as privileged under section 833 of the Code of Civil Procedure under the objection of the defendant. (Pierson v. People, 79 N. Y. 424; Edington v. Met. L. Ins. Co., 67 id. 195; Staunton v. Parker, 19 Hun, 59; Parish Will Case, 25 N. Y. 9; Grattan v. Met. L. Ins.

The facts so far as material are stated.in the opinion. For every police, commissioner of the city of New York, duly appointed as the successor to a commissioner whose term has fully expired, the legislature has by express and repeated enactment created a definite and separate term of office of six years in length. (Laws of 1873, chap. 335, §§ 25, 39 ; Laws of 1874, chap. 300.) The change in the statute proposed” by the defendant’s counsel is violent and inadmissible.

Yates as executor of the will of Benjamin Yates, deceased. The facts, so far as material, are stated in the opinion. The order appointing the referee was made under section 2546 of the Code, and under it the referee had the same power as a referee appointed by the Supreme Court for the trial of an issue of fact in an action by the Supreme Court. (Code of Civ. Pro., § 2546.) The bequest to the widow was a general- legacy.

This action was brought originally against the members of the firm of Brown Brothers & Go., to recover the proceeds of certain drafts deposited by plaintiffs with the. First ¡National' Bank of Buffalo, and sent by it to said firm for collection, and which were collected by it. By order of interpleader the original defendants were discharged upon payment of the money into court, and the receiver of said bank substituted as defendant.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of defendant’s negligence. The facts, so far as material, are stated in the opinion. Proof of the expressions of pain, or complaints of plaintiff, at the time of the accident, were improperly received in evidence. (Code, § 398; Reed v. N. Y. C. R. R. Co., 45 N. Y. 579.) Defendant had the right to show it employed a careful driver.

This action was brought upon the official bond given by defendant, Henry Y. Quick, in 1873, as treasurer and tax receiver of the city of Auburn, to recover for an alleged misappropriation of public school moneys. The referee found thn misappropriation alleged.

(Reported below, 34 Hun, 217.) In 1881, the firm of Fonda & Clark made a general assignment for the benefit of creditors to Kendrick E. Morgan. The assignment contained various classes of preferences. In the seventh class were certain notes held by the National Herkimer County Bank. In the eighth class of preferences was a claim of the firm of Schoellkopf & Matthews, of $906.25.

- The relators were originally assessed for the year 1884 in the sum of $650,000 for personal estate held by them as executors, etc., of George A. Osgood, deceased. Held: exceed the sum of $500,000, entitled the relators to the relief asked for. (Code of Civ. Pro., § 2514; Bouv. Law Die.) The relators are entitled to a liberal construction of the statute, (People, ex rel. v. Assessors, 88 N. Y. 142.)

<p>Fire fell from a locomotive on defendant’s road upon a horse attached to a wagon in the street helow, and upon the hand of the driver. The horse became frightened and ran away, the driver attempted to drive him against the curb stone to arrest his progress, the wagon passed over the curb stone, threw the driver out and plaintiff, who was on the sidewalk, was run over and injured. In an action to recover damages for alleged negligence causing the injury, the court charged, in substance, that if the jury believed the coal fell through negligence on the part of the defendant, causing the horse to become unmanageable and run against plaintiff, inflicting the injury, defendant was liable, and refused to charge that if the accident 'occurred through the driver’s error of j udgment in endeavoring to obtain control of the horse, plaintiff cannot recover. Meld no error ; that so long as the injury was chargeable to the original wrongful act of the defendant, it was liable ; that the potion of the driver in view of the exigency of the occasion, whether prudent or otherwise, might be considered as a continuation of the original act, and so that act was the proximate, not the remote cause of the injury; also, that the inj ury was a natural and probable consequence of defendant’s negligence.</p> <p>Ryan v. N. Y. C. R. R. Co. (35 N. Y. 210), P. R. R. Co. v. Kerr (62 Penn. St. 353), distinguished.</p>

This action was brought against defendant, an assignee for the benefit of creditors of Chauncey W. Gibson, to have an instrument executed by plaintiff and others which by its terms purported to assign absolutely a policy of insurance on the life of John E. Marsh, made payable to plaintiff, reformed so as to state that it was given as collateral security for an indebtedness of $500, and to recover the moneys collected by defendant on said policies.

an order denying a motion for a new trial. (Reported below, 34 Hun, 352.) The National Bank of Fishkill was organized in April, 1865, with a capital of $200,000, and continued to do business thereafter until January, 1877, when it became insolvent, and the defendant Henry Bostwick was appointed its receiver. From the time of its organization until that time Bostwick and the other defendants were its directors.

Appeal by the defendant, James S. Lyon, from a judgment ,of the General Term of the Supreme Court, in the fifth department, of October 31, 1884, affirming a judgment of the Court of Oyer and Terminer of Erie county, of April 6, 1883, Hon. Geokge Barker, presiding, convicting defendant of receiving and converting certain moneys of the city of Buffalo. The facts and the arguments of counsel are fully given in the report of this case at General Term, 2 N. 7. Grim. Hep. 484.

<p>Certain persons styling .themselves “That portion of the Cayuga Nation of Indians residing in Canada," presented a claim to the hoard of audit (which was transferred to the hoard of claims), for a share of annuities agreed to be paid by the State to said nation by treaties of 1789 and 1795. Held,, that the claim was properly denied; that the claimants have no personal or associate character authorizing them to present the claim; that the treaty contract was between the State and the Cayuga nation of Indians. and if violated, only the contracting parties, not a citizen of the State or a member of the nation, or any portion of such members, unless recognized by the State as such, could demand satisfaction ; that so long as the State recognizes the tribal organization as existing and deals with it as a nation, the courts and officers of the State must so regard it ; also that if any claim existed it was not a private one, and so was not within the jurisdiction of the board. (§ 2, chap. 444, Laws of 1876.)</p>

(Reported below, 19 J. & S., 109.) This action was brought to restrain defendants from selling certain packages of teas known as “ Pingsueys teas.” The facts, so far as material, are stated in the opinion. There was a clear legal right to the remedy of injunction in this case, and the judgment of the court below is reviewable here. (People, ex rel. v. Common Council of Syracuse, 78 N. Y. 56; Howell v. Mills, 53 id. 322; N. Y. City Cons.

(Reported below, 31 Hun 568.) The material facts are stated in the opinion. When a writ of certiorari is authorized by statute the court has the power to examine, upon the merits, every decision of the court or officers below upon questions of law, and to look into the evidence and affirm, reverse or quash the proceeding, as justice requires. (People, ex rel.

The facts are sufficiently stated in the opinions. No negligence on the part of the State was shown for which it can be made liable.. (O’Brien v. Cantwell, 59 Barb. 497; Nicholson v. Erie R. Co., 41 N. Y. 525; Sherman v. W. T. Co., 62 Barb. 150; Victory v. Baker, 61 N. Y. 356.) Negligence will never be presumed. (Sherman v. W. T. Co., 41 N. Y. 525.) The State is not liable for the negligent acts or conduct of the lock-tenders.

This action was upon a county treasurer’s bond. The facts are sufficiently stated in the opinion. Acts of misconduct by Bristol, during his second term, could not be proved to show a particular misconduct by him during his first term ; nor could his mere written declaration be proof of that fact against his sureties. (Tenth Nat.

<p>Appeal from a judgment of the General Term of the Supreme court, in the First Department, of January, 1885, affirming a judgment of the court of General Sessions of Hew York convicting "defendant of a violation of “ An Act to prevent deception in the sale of dairy products,” L. 1884, ch. 202.</p> <p>The decision at General Term, reported ante, p. 11, contains a statement of the facts.</p>

140, Laws of i860) to procure a change of the proposed route of the New York, Lackawanna and Western Railroad Company, where it crosses the land and tracks of the petitioner. The facts, so far as material, are stated in the opinion. This court has power to send the report hack to the commissioners, where errors of law have been committed. (Matter of L. S. & M. S. R. R. Co., 89 N. Y. 442.) The remedy under section 22 is the proper one where objection lies to the route..

Appeal by defendant, James Horace Jones, from a judgment of the court of Oyer and Terminer of Rensselaer County, Hon. A. M. Osborn presiding, of November 24, 1884, convicting defendant of murder in the first degree. The judgment of the Oyer and Terminer was affirmed at General Term in the Third Department, February 28, 1885, and defendant appealed from such judgment of affirmance to the Court of Appeals. The facts appear in the opinion of the General Term.

Appeal by William Schofield, trustee, etc., from order of the General Term of the Court of Common Pleas in and for the city and county of New York, made March 20,1885, which affirmed an order of Special Term overruling exceptions to and confirming a referee’s report on the accounting of Charles Waite, Jr., as assignee for the benefit of creditors of James C. Haynes and Orlando B. Sawyer. The material facts are stated in the opinion.

Appeal by the respondent from a judgment of the General Term of the Supreme Court in the Third Department, of May, 1885, reversing the order of the Albany Oyer and Terminer. The facts appear in the opinion. For points of counsel see 2 W. 7. Grim. Rep. 141.

The material facts are stated in the prevailing opinion. As between citizens, this claim would not be barred by lapse of time. (Laws of 1876, chap. 444; Code Civ. Proc., § 410.) Where there is a deposit, as distinguished from a loan, the statute does not run until a demand is made.

This was an action for partition of certain lands to which the complaint alleged the parties acquired title in fee under and by the will of George H. Nellis, deceased. The answer denied that the parties were owners in fee, and alleged a defect of parties in that certain persons, grandchildren of the testator’s son, Henry G. Nellis, vvho had a contingent interest in the premises, were not made parties. The provisions of the will so far as material are set forth in the opinion.

<p>At the time of a negotiation between the .parties for the sale by plaintiffs to defendants of certain goods, plaintiffs gave to defendants a writing which acknowledged the receipt of an order for the goods and stated the time of delivery and the price. Meld, that defendants were not estopped thereby from proving a paroi warranty as to quality ; that the instrument could not be construed as being the whole contract between the parties, but was simply a memorandum ; that even it could be construed as embodying a part of the agreement and so conclusive as to that part, oral evidencew as competent to show the rest.</p> <p>In an action wherein defendants set up as a counter-claim damages for an alleged breach of warranty in an executory contract for the sale of a quantity of cloths, defendant’s evidence was to the effect that one of the plaintiffs at the time the contract was made exhibited to defendants samples of cloths which were sound and perfect, and stated that the cloths “ were to be of similar fabric and similar quality, * ® equal in every respect to the samples,” and in reliance thereon defendants gave an order for the goods. Meld, that the testimony authorized a finding of a warranty.</p> <p>The goods were delivered in August and September and paid for in October and November after ample opportunity for examining them and discovering the defects complained of. No claim of bad faith on the part oE plaintiffs was made. Meld, that defendants were not estopped from recovering damages for the breach.</p> <p>Where a sale of goods is made in good faith with a warranty of quality, the vendee is not bound to rescind the contract on discovery of a breach of the warranty, but may, if he elect, use the articles and rely upon the warranty.</p> <p>The rule is the same whether the goods are in existence at the time of the contract of sale or are to be manufactured.</p> <p>The verdict was in writing in this form “ for defendants for amount of goods claimed to be damaged * * * same to be returned, less amount of plaintiffs’ claim * * * viz.: §6,404,53 — §3,118.00 = §4,386.53, for defendants.” No exception was made to the form of the verdict. Subsequently a motion was made to set aside the verdict as irregular and improper, which was denied, and judgment was entered in the usual form for defendants for §4,386,53. Meld, that, if there was a tenable objection to the form, it should have been urged at the time the verdict came in and before it was recorded ; also that, if the recommendation of the jury was of any significance, it was for the advantage of the plaintiffs; they were entitled to have the judgment conform to it, and not having objected to the judgment as entered or moved to have it corrected, they could raise no question in regard thereto on appeal; but held, that the clause was properly treated by the court as surplusage.</p>

<p>Appeal from, judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of defendants, entered upon an order made May 30,1884, which denied a motion for a new trial and directed -judgment on an order dismissing plaintiffs complaint on trial.</p> <p>This action was brought upon the official bond given by defendant Allen, as county treasurer of Seneca county, to recover certain commissions on State taxes which had been received by said treasurer and not paid over or accounted for.</p> <p>The .General Term Was in error in holding that the compensation of the county treasurer, as fixed by the board of supervisors, was not the whole compensation to which he was entitled, and that in addition thereto he might receive one per cent for receiving and paying over the State tax. (Laws of 1875, chap. 605, §§ 7, 8.) The act of 1875 is not a private or local bill, and if it were, its constitutionality would be saved by the doctrine that it did not apply to the county treasurers then in office, and it would lawfully operate upon the compensation of future county treasurers. (Conner v. Mayor, etc., 5 N. Y. 285; Williams v. People, 24 id. 405; Tift v. City of Buffalo, 82 id. 204; Kerrigan v. Force, 68 id. 381.) If the act of 1875 is a local bill, there is but one subject and that is fully expressed in the title. (People, ex rel. v. Briggs, 50 N. Y. 553.) It did not appropriate public money for local purposes. (§ 9 of art. 1 of the Constitution; Englishbe v. Helmuth, 3 N. Y. 294; Matter of Tax Payers of Kingston, 40 How. Pr. 444.) De feudant has received this money by virtue of his office of county treasurer, and it is none of his business to raise the question as to whether they came into his hands as such, rightfully or otherwise. It is enough for him that he has received money “ for the benefit of his county.” (People v. Williams, 3 T. & C. 338; First Nat. Bk. v. Wheeler, 72 N. Y. 201; Ross v. Curtiss, 31 id. 606; People v. Mead, 36 id. 224.)</p> <p>Chapter 605 of the Laws of 1875 violates section 18 of article 3 of the Constitution because it is a local bill and changed the fees and percentages and allowances of the county treasurers then in office. (People v. Banks, 67 N. Y. 574; Shanly v. Brooklyn, 30 Hun, 398; People v. Hills, 35 N. Y. 449; People v. O’Brien, 38 id. 193; Gaskin v. Meek, 42 id. 186; People v. Allen, id. 378; People v. Supervisors, 43 id. 10; People v. Com’rs, 54 id. 276; Matter of Church, 92 id. 1; Healy v. Dudley, 5 Lans. 125; Smith’s Commentaries, 419.) The subject of the act is to be determined by its provisions and not by its title. (People v. McCann, 16 N. Y. 58.) It is not sufficient to state in general terms in the title of a local bill that it is an act to amend a certain chapter of the laws of a previous year, when such chapter consists of various sections subject to distinct amendments. (People v. Supervisors, 43 N. Y. 10; People v. Hills, 35 id. 449; People v. O'Brien, 38 id. 193.) The object and subject-matter of the act was to authorize the comptroller to pay over, and the treasurer to retain for the benefit of his county, certain public moneys, the property of the State. (In re Paul, 94 N. Y. 497.) This act was void because it did not receive the assent of two-thirds, but was passed as a three-fifths bill. (Laws of 1879, chap. 213.) On this subject the printed statute is presumptive evidence and the original act conclusive. (People v. Com'rs, 54 N. Y. 276; Laws of 1842, chap. 305.) It appropriated public moneys for local purposes. (Matter of Kingston, 40 How. Pr. 444; People v. Develin, 33 N. Y. 269; People v. Home Ins. Co., 92 id. 335; Supervisors v. Otis, 62 id. 88; People v. Allen, 42 id. 378; People v. Com'rs, 54 id. 276; Supervisors v. Otis, 62 id. 88.)</p>

(Laws of 1877, chap. 466, as amended by Laws of 1878, chap. 318.) It appeared from the papers that in July, 1883, the firm of E. W. H. & Co. made a general assignment for the benefit of their creditors to one D., who was subsequently discharged and Y. was substituted in his place.

(Reported below, 34 Hun, 441.) Chapter 522 of the Laws of 1884 is unconstitutional and void, being in contravention of article 8, section 2, of the Constitution, which provides that “no county, city, town or village shall be allowed to incur any indebtedness except for county, city, town or village purposes.” (People, ex rel. v. Kelly, 76 N. Y. 475; People, ex rel. v. Albertson, 55 id. 50; Matter of Deansville Cem.

<p>As a majority of the court did not concur in the opinion in this case it is not reported.</p>

This was a contest for surplus moneys in a foreclosure suit. One Kirk claimed the surplus as mortgagee under a junior mortgage. One Datter claimed under a judgment against the mortgagor. The mortgage was prior in its apparent lien to the judgment. The referee to whom the matter was referred found that the mortgagee was entitled to the surplus, and an order was entered to that effect.