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ground for suspicion of fraud, sur- ness or to serve as testimony, should be the prise or mistake, and to justify the

first or original note of the fact. setting aside of a judicial sale. This This action was brought to recover case is not so near the border as to damages for injuries to a barque begive much trouble. The price was longing to plaintiff, by a collision with certainly inadequate and this inade- a ferry-boat belonging to defendant's quacy of price is accompanied by a testator. Upon the trial it was misapprehension to say the very least. claimed that plaintiff was not the real It is not important whether or no Mr. party in interest and had no right to Brown's authority was sufficient to sue. It appeared that the boat was justify his acts. He was the agent of registered as belonging to him, but the Bank to attend the sale in its in- that he had executed an instrument terest, and if as such agent he made in writing which recites an indebtedthe alleged agreement, and if thereby ness of plaintiff to the party to whom Cassidy and his friends were induced it was given, and that to secure the not to bid, believing Cassidy was same and interest plaintiff gives this to have the property back for the guarantee mortgage " upon the vessel, amount due on the judgments, then etc. It contained no power to sell or the Bauk is bound by his acts. We to take possession, but provided for a place our decision on the ground of foreclosure in case of default, the same inadequacy of price, and well ground- as of a mortgage upon lands. The ed misapprehension produced by the vessel, at the time of the accident, was agent of the purchaser. The terms of in the hands of the assignees of said the order are unobjectionable and in- instrument, and they retained her sure the interests of all parties. Order profits. affirined with costs and disburse- E. Wetmore, for applts. ments.

W. W. Goodrich, for respts. Opinion by Dykman, J.

Held, That plaintiff could maintain this action; that the instrument exe

cuted by him was not a chattel mortTITLE. VESSELS. EVIDENCE. gage; that he still had title to the N. Y. COURT OF APPEALS.

vessel.

The book in which entries of the Wilson, respt., v. Knapp, exrx., etc., et al., applts.

materials furnished, and labor in re

pairing the vessel were made, was Decided June 19, 1877.

offered in evidence. This book was An owner of a vessel who has given a mort- made up according to the custom of gage thereon which contains no power to sell a firm from a report

made

every night or take possession, but provides for a fore

of the materials furnished and men closure, the same as of a mortgage of lands, still retains the title, although the vessel is employed during that day to the bookin the hands of assignees of the instrument, keeper, it was verified by the latter, and they retain the profits, and may main- and by the persons who made the daily tain an action to recover damages for an in

ue. jury to such vessel,

reports to him as accurate and It is not necessary that a memorandum pro

The reception of this book in evidence duced to refresh the recollection of a wit- / was objected to on the ground that the

idence was hearsay, not founded upon track of the A. & S. R. R. Co. the personal knowledge of the witness, Printed instructions to this effect had and not original entries.

been given by defendant to its emThe objection was overruled. ployees. The same flagman was em

Held, no error; it is not always re- ployed by both companies, and at the quired that a memorandum produced time the accident occurred, defendto aid the recollection of a witness, or ant's train was approaching the crossto serve itself as testimony, should be ing, and slowed up to stop, when the the first or original note in writing of flagman signaled it to come on and the fact. A true copy of the original the speed of the train was increased, is often admitted for the same pur- and it approached the crossing. At pose. 49 N. Y., 303.

the moment the flagman signaled deJudgment of General Term, affirm- fendant's train to come on, the train ing judgment of Special Term for upon which deceased was engineer plaintiff, affirmed.

approached, and the flagman signaled Opinion by Folger, J. All concur. it to stop. Ile then signaled defendEarl, J., not voting.

ant's train to come on, and upon discovering that his danger signal had

not been seen on the other train, he NEGLIGENCE. PRACTICE. signaled both trains to stop, but too

N. Y. COURT OF APPEALS. late to prevent the collision. Wood, admrx., etc., respt., v. The Defendant moved for a nonsuit on N. Y. C. & H. R. R. R. Co., applt. the ground that no negligence had Decided June 19th, 1877.

been proved, and that contributory The question of negligence is for the jury to negligence appeared upon the part of determine.

the deceased. The motion was denied, It is not error to submit to the jury the ques- and the case submitted to the jury. tion whether a violation of the rules of a

Matthew Ilale, for applt. railroad company by its employees caused the injury complained of, and whether such vio- Elwin Countryman, for respt. lation was negligence.

Held, no error; that the question This action was bronght to recover of defendant's negligence, and of the damages for the killing of W., plain- contributory negligence of the detiff's intestate. The accident occurred ceased, were properly submitted to the through a collision of a train of de- jury. fendant with a train of the A. & S. Error was claimed upon a refusal R. R. Co., at a point where defend- to charge that a violation of defendant's track crossed the track of the A. ant's rules by its employes was not & S. R. R. Co. W. was at the time negligence, and in submitting the an engineer on a train of the latter question to the jury whether such negcompany. It appeared that an agree- lect in this case cansed the injury, and ment had been made between it and whether it was negligence not to be defendant, by which its trains were to governed by them. have the right of way over defendants, Hel, no error. and that all the latter's trains should It appeared that the flagman knew come to a full stop before crossing the that the train on the A. & S. road had arrived at the next station, and might cation, he had attended the insured arrive at any moment, and that he several times for light illnesses, which could see up the track three-fourths he considered and treated as congesof a mile. The Court refused to tion of the liver, and that he died of charge that if at the time the flagman congestion of the liver. Defendant's signaled defendant's train to stop, the examining physician, who had known other train was not in sight, his act the insured for many years, testified was not negligent.

that he examined him upon his appliHeld, no error.

cation for insurance, and found his Judgment of General Term, affirm- liver sound, and that from the symping judgment on verdict for plaintiff, toms detailed to him by the other affirmed.

medical witness, in a consultation Opinion by Church, Ch., J. All shortly before the death of the inconcur, except Allen, J., taking no sured, he did not die of congestion of part.

the liver but of inflammation of the LIFE INSURANCE. PRACTICE. bowels. Defendant moved for a N. Y. COURT OF APPEALS.

nonsuit, which motion was denied. Cushman, admr., etc., v. The U.S.

F B. Chandler, for applt. Life Ins. Co., applt.

E. B. Thomas, for respt. Decided June 5, 1877.

Held, No error; that the question

in the application as to disease of the In construing a policy of life insurance, a temporary ailment, in order to be called a

liver, was not asked to acquire infordisease, must be such as to indicate a vice in mation as to merely temporary disorthe constitution, or be so serious as to have ders or functional disturbances having some bearing on the general health and con

no bearing upon general health. In tinuance of life,or such as is commonly called a disease.

construing a policy of life insurance, In order to constitute medical attendance it is it must be generally true that before

not necessary the physician should attend any temporary ailinent can be called a the patient at his own home, an attendance disease, it must be such as to indicate

at his own office is sufficient. A statement in the proof of death, by the phy.

a vice in the constitution, or so serious sician making it, that he had been the med

as to have some bearing upon general ical attendant for a longer period than the health and the continuance of life, or policy had run, will not prevent proof on the such as according to common undertrial as to who was the usual medical attend

standing would be called a disease. ant of the insured. A general objection to evidence is not avail- 2 Park on Ins., 933, 935; 1 M. & R., able as ground of error on appeal.

498; 3 F. & F., 440; 3 T. & C. 578; Affirming S. C., 1 W. Dig., 111.

20 N. Y., 293; 53 Id., 603; 59 Id., This was an action upon a policy 571. of life insurance. The application for

The insured stated in the applicathe policy contained, among others, tion that one Dr. P. was his usual the question whether the applicant medical attendant. The insured rehad ever had disease of the liver, to sided with his father prior to the inwhich he answered “No.!!

surance. Dr. P. had been his father's proved on the trial by one physician, family physician for many years, all that, prior to the making of the appli- the insured had called upon him every

It was

year, and sometimes more frequently, REGISTERS. COUNTY and consulted him as a physician. It

CLERKS. was proved that he had in one illness N. Y. SUPREME COURT. GENERAL been attended by a Dr. G., and that a

TERM. SECOND DEPT. Dr. O. had attended him several The People ex. rel. Cyrus Lawtimes during the last few years of his rence, respt., v. The Board of Superlife, not over in all a half dozen visors of Westchester Co., applt. times.

Decided July 6, 1877. Held, That the answer to the ques

The Register of Westchester County is not en

titled to an allowance for stationery. tion was proper; that it is not neces- County Clerks can make no charge against the sary to constitute a medical attend

County except for record books and stationance that the physician should at- ery furnished by them for Courts held in tend the patient at his home, an at

their respective Counties. tendance at his own office is sufficient. The Board of Supervisors of West

There was annexed to the claim chester County, at their annual meetand proof of loss furnished by plaintiff, ing in 1876, audited a bill for books a statement of Dr. O., as physician in and stationery furnished the office attendance upon the assured in his of the Register of that County. This last illness, and in answer to the bill included charges for erasers, penquestion “ How long have you been cils, bands, rulers, seals, etc.. amountthe attendant or family physician ?” |ing to about $100. Relator, a taxhe answered “Five years.” The pol- payer in said County, thereupon made icy was issued in November, 1871, application for a mandamus, requirand this statement made in August, ing the Board of Supervisors to re1873.

scind their allowance of these items, Held, That this did not show a which was granted, and from the breach of warranty or prevent plaintiff order granting such mandamus this from proving on the trial the truth as appeal is taken. to who was the usual medical attend- C. II. Roosevelt, for applt. ant of the insured, 17 Wal., 672;

R. S. Hart, for respt. that plaintiff was not responsible for Hel, By the act of 1858, Ch. 293, the misstatements of Dr. O.

$ 10, the Register is entitled to the Defendant upon the trial objected same allowance for books and stationgenerally to evidence offered by ery as the County Clerk. $ 6, of plaintiff, and did not specify that no Ch. 125 of the Laws of 1844, proproper foundation had been laid for hibits County Clerks from making it.

any charge against the County, exHeld, That the objection was not cept for record books and stationery available here as ground of error. 42 furnished by him for Courts held in N. Y., 251; 46 Id., 481.

the County. Judgment of General Term, affirm- The charge for stationery in this ing order denying new trial, and giv- case was, therefore, illegal. ing judgment for plaintiff on verdict, The Supervisors had no power to affirmed.

allow it to the Register or to the staOpinion by Earl, J. All concur. tioner.

Order athiried with costs.

dismissed, although not disinissed on Opinion by Gilbert, J.

that ground.

W. A. Beach, for applt.

J. S. Woodward, for respt.
PRACTICE. VARIANCE.

Held, That the General Term was
N. Y. COURT OF APPEALS.

clearly in error as to the ground upWilliams, admrx. &c., applt., v.

on which it placed its decision. Slote et al., respts.

Judgment of General Term, affirmDecided June 12, 1877.

ing judgment for defendant, revers

ed and new trial granted. Where, in an action for an accounting of sales,

Opinion by Earl, J. All concur. in which the complaint claims that defendants had made fraudulent statements of their sales to plaintiff's damage, the complaint is dismissed on the ground that such

SECURITY statements were correct, it is error for the

N. Y. COURT OF APPEALS. General Term to base its affirmance of the judgment solely upon the ground that the

Matthews, admrx., &c., respt., v. complaint stated an equitable cause of Sheehan, applt. action and the cause of action proved was Decided May 22, 1877. a legal one.

Where a party takes out a policy of insurance Plaintiffs brought this action to

on his own life and assigns the same to recover a certain per centage upon

another, who agrees by parol to pay the pre

miums thereon, and to reassign the policy the amount sold of certain publications

on being reimbursed for the premiums paid, of the defendants, which the latter

such assignment is a mortgage, and not a had contracted to pay to his intes- conditional sale. tate, and claimed that defendants had In all doubtful cases, where the intention of

the parties cannot be ascertained, a contract made fraudulent statements of their

will be construed to be a mortgage rather sales, and that, relying on these state- than a conditional sale. ments, plaintiff had received money, Affirming S.C., 3 W. Dig., 355. and judgment was demanded that an This action was brought to recover account be taken and that defendants moneys claimed to have been repay plaintiff such sums as the account-ceived by defendant upon an insuring shall show to be due, and that she ance on the life of O., plaintiff's shall have such other and further re- testator. It appeared that an agreelief as was just, besides costs.

ment had been made between defendThe case

was referred, with the ant and 0., under which the latter consent of both parties. The referee was to take out a policy of insurance found that the accounts rendered upon his life, and assign it to defendwere true and dismissed the com- ant, who was to pay the premiums plaint. Upon appeal to the General and have the benefit of the policy, Term the judgment was affirmed on with the understanding that if at any the sole gronnd that the cause of time 0. desired to redeem it, he action stated in the complaint was an could do so by paying the premiums equitable one, whereas the cause of advanced by defendant, with the inaction proved was a legal, and that terest thereon. 0. procured the hence the complaint was properly policy and immediately assigned it to

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