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to receive the testimony of skilled witnesses as to the meaning of the phrase, "port risk," it being a technical phrase; that "port risk" in a marine insurance policy means a risk upon a vessel while lying in port, and before she has taken her departure on another voyage.

secured by mortgage upon real estate. Defendant set up in his answer, and offered to prove that he indorsed the notes for the accommodation of the maker, without any security or protection except such as was afforded by said mortgage; that plaintiff had full knowledge of the character of the indorsement and knew that defendant relied on the mortgage as the primary

An expert is one instructed by experience, and to become one requires a course of previous habit and prac-fund out of which the debt repretice, or of study so as to be familiar with the subject. 1 S. L. Cas., 286, note. Whether a witness offered as an expert is qualified to speak as such is a fact preliminary to his testifying as such, and is to be determined by the Court at the trial. 41 N. H., 546. As to whether it is reviewable, quære. Judgment of General Term, affirming judgment dismissing complaint, affirmed.

sented by the notes was to be paid; that plaintiff did not actually lend or advance any money to D. on said notes, but they were passed to D's credit as a mere colorable deposit of money, out of and from which other paper was in form paid and retired, and that the liability was a mere extension and renewal of the original indebtedness secured. by said mortgage, and claimed that no action could Opinion by Folger, J. All con- be maintained on the notes, but that

cur.

ACCOMMODATION INDORS

ERS.

N. Y. COURT OF APPEALS. The First National Bank of Buffalo, respt., v Wood, applt.

Decided December 11, 1877. An accommodation indorser, as between himself and a bona fide holder, where his liability has become fixed, becomes the principal debtor, and if he desires the benefit of any security held by the creditor, he must pay the debt and enforce the right of subroga tion as to such security.

In an action against the indorser, an offer to

the remedy must be confined to the mortgage as the higher security, until that remedy was exhausted, and asked that plaintiff be required to foreclose its mortgage.

John Hubbell, for applt.

George B. Hibbard, for respt.

Held, That defendant was not entitled to the equitable relief demanded; that the money was not loaned on the mortgage, but it was given merely to make the notes discounted more safe and secure, and according to the intention of the parties it is not to be

prove the taking of usurious interest in the considered as the principal debt.

transactions between the maker and holder is too broad.

This action was brought upon several promissory notes indorsed by defendant for one D., who kept an account with plaintiff, and had arranged for a line of discounts which was

An accommodation indorser, as between himself and a bona fide holder, where his liability has become fixed, becomes the principal debtor, and if he desires the benefit of any security held by the creditor he must pay up the debt, fulfill the contract, and en

force the right of subrogation as to the securities held by him. 22 Wall., 576, 592; 3 Story, 393.

At. Bk. v. Franklin, 55 N. Y., 235; Powers v. French, 1 Hun, 592, distinguished.

Defendant offered to prove the taking of usurious interest in the transactions between the plaintiff and D. The proposition embraced transactions with which defendant was not connected. The offer was re

jected.

inasmuch as it stated a conclusion
only and not facts.

K. Carroll, for applt.
John S. Baker, for respt.

Held, That the defect was not
jurisdictional. That the averment in
the language of the statute is enough
to give jurisdiction; but that the
defect was an irregularity, which
had been cured in this case by the
affidavits used on the motion.
Order affirmed with costs.
Opinion by Smith, J.; Mullin, P.

Held, No error; that the offer was J., and Talcott, J., concur. too broad and comprehensive.

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All concur, except Church, Ch. J., absent.

SUPPLEMENTARY PROCEED

INGS. JURISDICTION.
N. Y. SUPREME COURT. GENERAL
TERM. FOURTH DEPT.

First National Bank of Rome, respt., v. George F. Wilson, impl'd, &c., applt.

Decided January, 1878.

FIRE INSURANCE.
N. Y. COURT OF APPEALS.
Whitney, respt.,. v. The Black
River Ins. Co., applt.

Decided January 15, 1878.

A provision in a policy that it should be void in case the premises become "vacant and unoccupied" must be construed and applied in view of the subject-matter of the contract, and of the ordinary incidents attending the use of the property.

The continuing of the use of a planer in a sawmill is not a violation of a provision of the policy that it should be void if the premises were used so as to increase the risk, even though the company were ignorant of its use at the time the policy was issued.

This was an action upon a policy of insurance on plaintiff's saw-mill, and on his fixed and movable machinery, mill-tools and implements con

An affidavit in proceedings under § 292, subd. 2 of the Code, which does not state the facts, but follows the words of the statute, is sufficient to give jurisdiction. Appeal from an order of the Oneida Special Term, denying a motion to set aside an order in sup-tained and used in the mill. It proplementary proceedings, granted by the county judge. The order was under the second subdivision of § 292 of the Code. The affidavit was in the words of the statute. The order recited that such facts had been made to satisfactorily appear to the judge. The appeal was taken on the ground that the affidavit was not sufficient to confer jurisdiction,

vided that if the premises became
"vacant and unoccupied," the policy
should be void. It appeared that the
mill was not intended as a domicile;
that it was left open night and day,
as such mills usually are.

Jas. F. Starbuck, for applt.
L. W. Russell, for respt.

Held, That this condition must be construed and applied in view of the

subject-matter of the contract, and of the ordinary incidents attending the use of the insured property; that it was not intended by this condition that the mill should be inhabited, or that anyone should remain in it so as to watch and guard it against fires; that the interruptions of the business, and the discontinuance of the active use of the mill by reason of low water, diminished custom, or derangement of the machinery, would not be a violation of the condition.

It was also provided that if the premises were occupied or used so as to increase the risk without the consent of the company, the policy should be void. At the time of the insurance, a planer was in the mill, which was used from time to time in planing lumber cut at the mill, which occa sional use was continued after the

policy was issued. There was no allegation in the answer of a warranty against such use, or fraudulent representation or concealments.

Held, That the continuing of the use of the planer was not a violation of the contract; that it was not material whether defendant was ignorant that the planer was used when the policy was issued.

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Andrews, J. All con

cur.

COSTS ON APPEAL FROM

JUSTICES' JUDGMENT. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. William Pearce, respt., v. The Northern Central R. Co., applt. Decided January, 1878.

In determining the question of costs on appeal

from a justice's judgment, the interest recovered on the claim is not to be considered.

Where on the trial in the County Court the

judgment is more favorable to appellant than the offer of respondent by more than $10, the appellant is entitled to costs.

Appeal from order of Ontario County Judge, setting aside taxation of costs in favor of defendant, and ordering costs in favor of plaintiff.

The plaintiff recovered a judgment in a Justice's Court for $150 damages and costs. The defendant appealed, and specified as a ground of appeal, that the damages ought not to have exceeded $100. The plaintiff thereupon offered to reduce the judgment to $125 damages and costs. On the trial in the County Court the plaintiff recovered a verdict for $111.50 with interest, making in all $124.46. J. Gillette, Jr., for applt. Edwin Hicks, for respt.

Held, That the interest is to be left out of consideration in determin

ing the question of costs. And that as the recovery ($111.50) was more favorable to the appellant than the offer of respondent ($125), by more than $10, the appellant was entitled to costs.

Order reversed.

Opinion by Smith, J.; Mullin, P. J., and Talcott, J., concur.

MARRIAGE. EVIDENCE. N. Y. COURT OF APPEALS. Chamberlain et al., applts., v. McKibben et al., respts.

Decided December 11, 1877. Hearsay and traditional evidence of a marriage is not conclusive, but is prima facie evidence of a marriage or of an agreement per verba de presenti, followed by cohabitation sufficient for the administration and devolu tion of property.

C. lived with one E., a woman of previous unchaste character, and had one child by her; they afterward separated. E. afterward joined with him in a deed of his property. There was hearsay evidence that he had stated that she was his wife. He afterward formally married one S., who lived with him until his death. E. outlived him, but made no claim upon him as his wife or upon his estate. Held, That the marriage to S. was

lawful.

by interested witnesses, that C. called E. his wife, and treated her as such while they lived together, and said after they had separated that he was married to her, and her relations so stated on many occasions, and they were generally recognized in the community where they lived, as man and wife; that after their separation This was an appeal from a judg- E. joined in a deed from C. on the ment of General Term, affirming a sale of a farm, the purchaser requirdecree of a surrogate upon the final ing that she should, and that C. was accounting of the estate of B. C. procured, as father, to consent to or The only question raised upon this join in the articles of apprenticeship appeal is whether C., the father of B. of the son he had by E.; that this C., was lawfully married to one E. or child was referred to in the will of to S. It appeared that about the B. C. as his brother. It appeared year 1800, C. started to move into that when E. and C. separated no this State with his wife and six chil- articles of separation were executed. dren. His wife died on the journey. There was evidence that he gave her In 1804 he brought E. to his house all the money he could when she left. and she lived with him three or four E. lived about fifty years after the years, and they then separated; dur- separation, but never made any ing that time a child was born, who claims upon C. as her husband, and took his father's surname. One P. claimed no share in his property after then lived with C. for several years, his death, or to a pension to which and they separated. C. then became she would have been entitled as his acquainted with S. and brought her widow. It appeared that C. was to his house, where she lived with openly married to S., a reputable him until he died, thirty-five years, widow living in the same county with having had three children by him. him, in 1812, and lived with her and One of respondent's witnesses testi- treated her as his wife until his death. fied that C. once told her he was in 1847; and that she was recognized married to P. Before C. became ac- and treated as such by his children. quainted with E. it appeared that and neighbors. One witness was she had had two illegitimate children produced who was present at the by two different men, with one of marriage. An entry made by C. in whom she had cohabited for some his bible in 1820, which is headed time. There was no direct proof" A Register of my children," was that she was ever married to C., no record of such a marriage was produced, and no witness called who was present at such a marriage. It was shown, by hearsay evidence, and traditionary declarations given mostly

produced on the trial. It contained the names of his children by his first wife, and of those by S. The name of the son of E. did not appear. Upon C.'s death one of S.'s children was appointed administrator, and S.

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H. R. Selden, for applts. C. C. Torrance, for respts. Held, That, taking into consideration all the circumstances and the reputation of the parties, the marriage to S. was lawful.

Hearsay and traditional evidence of a marriage is not conclusive, but, in the absence of countervailing evidence, is prima facie evidence that there was either a former marriage, which could not otherwise be proved, or that the parties agreed per verba de presenti to a marriage which was followed by cohabitation sufficient for the administration and devolution of property. This presumption may, however, be overcome by other evidence showing that the marriage relation did not exist. 3 Geenl. Ev., S$ 176, 177; Stark. on Ev. (10th Ed.), 62, 63; 18 J. R., 340; 1 Hill, 270; 4 N. Y., 230; 38 Id., 296.

Judgment of General Term, affirming decree of surrogate, reversed.

Opinion by Earl, J. All concur, except Church, Ch. J., absent.

RAILROAD COMPANIES.

NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

Elizabeth S. Salter, admrx., &c., respt., v. The Utica & Black River RR. Co., applt.

Decided January, 1878. Where a person driving a team approaches a railroad crossing at such speed that he is

unable to control or stop them, and without making any effort to ascertain whether a

train is approaching, he is guilty of negli

gence.

Action for damages for the killing by defendant of plaintiff's intestate. The defendant's counsel requested the Court to charge the jury, without qualification, that if the plaintiff's intestate approached the crossing at such speed as to be unable to stop or turn his horses aside, before going on to the track, he was negligent. The Court refused to so charge, but instructed the jury in reply to the request, that if the intestate approached the track at such speed that he was unable to control or stop his team, without making any effort to apprehend the approach of the train, he was guilty of negligence.

F. Kernan, for applt.
F. W. Hubbard, for respt.
Held, No error.
Judgment affirmed.

Opinion by Smith, J.; Talcott, J., concurred. Mullin, P. J., dissented.

INJUNCTION. TRESPASS. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Samuel W. Johnson et al., exrs., &c., respts., v. The City of Rochester, applt.

Decided January, 1878.

An injunction to restrain a mere trespass will be granted, where such trespass is in the nature of a nuisance and threats have been made to continue it.

Monroe Special Term, denying a Appeal from an order of the motion to dissolve a temporary injunction.

The papers show trespass by the defendant on the lands of the plaintiff, in using it for a passage way over which to carry dirt and filth, and

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