and judgment should be ordered for the defendants upon the order of the circuit dismissing the complaint of the plaintiffs. DWIGHT, P. J., concurs; CORLETT, J., not voting.

JOHN S. WASHBURN, App'lt, v. THE NATIONAL ACCIDENT SOCIETY, Resp't.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. INSURANCE (ACCIDENT)-SUICIDE.

The presumption of law is against the assumption of suicide where it appears that a violent death was the result either of accidental injuries or a suicidal act.

2. SAME.

The body of the insured was found in Pennsylvania with a bullet hole back of the right ear through which the bullet had passed upward and forward into the brain. There was no s gn of a struggle, his hand was unclenched and the pistol between his legs. No motive was shown why he should take his life. It was shown that insanity had never existed in the family, and the evidence was conflicting as to whether his hair was singed. Held, that the question whether the death was suicidal was one for the jury, and that it was error to direct a verdict for defendant.

3. SAME EVIDENCE.

Evidence of a physician that in case of instantaneous death there is an involuntary and immediate rigidity of the muscles, which would cause the hand to cling to the pistol, rendering it impossible for deceased, if he were a suicide, to place it between his legs after shooting, is competent and admissible on the question of suicide.

APPEAL from an order made at the Cattaraugus circuit on the 13th day of September, 1889, denying the plaintiff's motion for a new trial on the minutes of the court, after a verdict for defendant rendered under the direction of the court.

C. D. Davie, for app'lt; Stephen W. Collins, for resp't.

MACOMBER, J.-This action is brought to recover of the defendant, which is a life and accident insurance company, organized upon the co-operative or assessment plan, the sum of $5,000 in pursuance of a certificate of membership issued to one Charles S. Washburn, of Carlton, N. Y., for the benefit of the plaintiff, who is the father of the assured.

The policy was issued on the 3d day of November, 1886. On the 5th day of November, 1887, in the vicinity of Cooperstown, Pennsylvania, near a highway, in the center of a cleared space, which was surrounded by underbrush, the body of the assured was found with a bullet hole through the back of his head, which had caused his death. The bullet entered the skull an inch and a half back of the right ear, and passed through the brain, and its course inclined a little upward and forward nearly in the direction of the left eye. The deceased was twenty-one years of age, and for a while and immediately preceding his death was out of employment. He had previously, however, been engaged as a salesman and bookkeeper in a country dry goods store at West Branch, N. Y. He was shown to have been a young man of temperate habits, no evil associations, of a cheerful disposition, industrious and honest. He was on the best of terms with all members of his

family and had given, at times, a portion of his earnings to his mother and his sister. After leaving his employment he notified his father and mother that he was going away, but did not tell them whither he was going. This was one week before his body was discovered. When found his right hand was lying by his right side unclinched, and between his legs lay a thirty-two calibre revolver with one chamber empty. The bullet found in his head corresponded to the calibre of the revolver. There was no evidence of a struggle, his clothes being free from dirt; his hat was placed a little to one side of him. The sum of five cents only was found upon his person, together with a receipt of payment of a premium to the defendant, a silver watch and a necktie pin made of a dollar gold piece.

At the close of the evidence the learned judge at the circuit directed a verdict for the defendant upon the ground that the evidence, as viewed by him, conclusively established the fact that the deceased died by his own hand and that the payee of the policy could not recover thereon, for by its terms no recovery could be had in case of suicide by the assured whether sane or insane. This is the only question before us upon the merits of the case.

We are of the opinion, under all the circumstances attending the case, that the learned judge erred in withdrawing the consideration of the facts from the jury. The evidence was not altogether uncontradictory. One witness testified that there were marks of singeing of the hair on the back of the head, indicating that the revolver was placed close to the skull when fired.

Another witness, the undertaker, testified that he examined particularly to see in regard thereto, and found no marks of singeing of the hair by gunpowder or otherwise. It was also shown that insanity had never existed in the family of the deceased, either upon his father's or mother's side. This fact distinguishes this case from that of De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y., 232. There was no motive shown why he should take his own life. He had had no trouble with his employers nor with any other person. They had paid him fair wages, and he was well liked by them.

It is contended on the part of the defendant that the location of the wound and attitude of the body indicated suicide, and it is urged with equal force on the other side that the same matters indicated the contrary.

We think the inference to be drawn from all of the evidence was one of fact, and that the case did not present a question of law arising, as was supposed by the learned judge at the circuit, upon undisputed facts. The presumption of law is against the assumption of suicide where it appears that a violent death was the result either of accidental injuries or a suicidal act. Mallory v. Travelers' Ins. Co., 47 N. Y., 52.

It was purely the province of the jury to interpret the facts and to pronounce the conclusion thereon. Undoubtedly different inferences may be drawn from such evidence, but this does not make the case one for the interposition of the court against the province of the jury. If the conclusion from all of the facts is

[Sup.Ct. doubtful, it is error for the court to dispose of the same as a question of law. Powell v. Powell, 71 N. Y., 71; Belton v. Baxter, 58 id., 411. .

In the case of the Travelers' Ins. Co. v. McConkey, 127 U. S., 661, the provision in the policy was substantially the same as in this one, namely, an insurance against death from external, violent and accidental means, and on which no recovery could be had in case of suicide by the assured whether he was sane or insane. It was held that death from external violence, shown by proof of a pistol shot through the heart of the deceased, raised a question of suicide or accident for the jury. In that case, however, the question was one, apparently, not of suicide or accidental shooting, but of suicide or murder. And it is contended by the learned counsel for the respondent that, under the terms of the policy before us, if the deceased was murdered, he cannot recover, for the provision of the policy is that in case of "intentional injuries inflicted by the insured or other person * * no recovery can be had." The evidence disclosed by the printed case does not, in our judgment, call upon us to express any opinion as to the right of the plaintiff to recover in the case of the actual murder of the son.

*

The case of the plaintiff upon the question of suicide was sought to be strengthened by an offer of testimony by a physician to the effect that in cases of instantaneous death, as this was claimed to be, there is an involuntary and immediate rigidity of the muscles which would cause the hand to cling to the revolver, rendering it impossible for the deceased, if he was a suicide, to place the weapon between his legs after the shooting. This was objected to and the objection sustained, to which an exception was taken. This evidence was within the realm of expert testimony and should have been admitted. Eggler v. People, 56 N. Y., 642.

The order appealed from should be reversed and a new trial granted, with costs to the plaintiff to abide the event.

CORLETT, J., concurs. DWIGHT, P. J., concurs on ground sec◆ ondly stated in the opinion.

LEWIS H. CLARKE, as a Taxpayer, etc., of the Town of Sodus, Resp't, v. ANDREW F. SHELDON, as County Treasurer of Wayne County, App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. TOWN BONDS-ACTION TO COMPEL APPLICATION OF RAILROAD TAXES— COSTS.

Costs cannot be allowed in a proceeding under chap. 907, Laws 1869, to compel the purchase of town bonds by the county treasurer, as such proceeding is instituted before the county judge as an officer and not before the court.

2. SAME-INTEREST.

Where the duty of a public officer to pay over money in his hands for a particular purpose is not well defined, and the officer has acted in good faith and without fault has parted with the moneys, and they have neither actually or constructively earned any increase, interest should not be charged against him.

3. SAME ESTOPPEL.

Where the town has received and used for proper town purposes the moneys which ought to have gone into the sinking fund, it should be deemed estopped to claim a repayment of such moneys either directly or indirectly.

APPEAL from a final order of the county judge of Wayne county, filed December 26, 1888, directing the defendant, as county treasurer, to purchase the 'bonds of the town of Sodus issued in aid of the construction of two railroads through such town, one known as the Sodus Point & Southern Railroad, and the other as the Rome, Watertown & Ogdensburg Railroad.

Charles H. Roys, for app'lt; J. Welling, for resp't.

MACOMBER, J.-The town of Sodus, prior to the year 1871, issued its bonds in the amount of $113,000, under chapter 811 of the Laws of 1868, to aid in the construction of the Lake Ontario Shore railroad, now known as the Rome, Watertown & Ogdensburg railroad; and also issued bonds in the sum of $77,000, under chapter 907 of the Laws of 1869, to aid in the construction of the Sodus Point & Southern railroad, the two railways passing through such town and crossing each other.

Since the construction of these railways respectively, the taxable property thereof has been assessed, and these companies have paid taxes so assessed, in the same manner as in cases of other taxpayers.

The petition in this proceeding was filed in the month of February, 1882, praying for an order from the county judge, under chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, requiring the county treasurer of Wayne county to execute the provisions of these acts by investing the sum of $427.69, the amount of taxes, other than school and road taxes, received by him for the years 1881 and 1882, collected on the assessed valuation of the two railways in that town, under the assessment of 1881, to aid in the construction of which the town had issued its bonds. Upon a hearing before the county judge, the petition was dismissed, and the order on such dismissal was subsequently affirmed by the general term of this court. appeal, however, to the court of appeals, these decisions were reversed, with directions to the county judge to proceed under the petition.

On

It was held by that court that by the scheme of raising a sinking fund under these statutes, other portions of the county did not have imposed upon them any additional tax for the benefit of the town of Sodus, and that the provisions of the State Constitution, 8, art. 7, prohibiting the payment out of the treasury of the state of any moneys excepting in pursuance of an appropriation, was not violated thereby, inasmuch as the fund realized from such taxation does not belong to the state, or go into its treasury. It was there further held that the law was not repugnant to § 20, art 3, of the Constitution, declaring that every law which imposes a tax shall distinctly state the tax and the object to which it is to be applied. 106 N. Y., 104; 8 N. Y. State Rep., 537.

At its annual session in 1881, the board of supervisors of Wayne county levied upon the taxable property in the town of Sodus, including these railways, a total tax of $33,636.97 for town, school, county and state purposes. The amount of such total tax of that year, paid by the Rome, Watertown & Ogdensburg railroad, was $2,231.38, and by the Sodus Point & Southern railroad the sum of $370.71, amounting in the aggregate upon both railroads to the sum of $2,602.09. The tax of $370.71 was paid by the Sodus Point & Southern Railroad to the town colfector, and by the collector to the defendant on the 13th day of February, 1882, which was three days after this proceeding was begun. The tax upon the Rome, Watertown & Ogdensburg Railroad of $2,231.38 was paid by the company January 30, 1882. The taxes of both railroads, so paid to the county treasurer, were placed by him to the credit of the collector of the town of Sodus, for the objects and purposes to which they, with other taxes from the same town, were appropriated by other than the sinking fund

statutes.

Since the decision of the court of appeals in this case, the defendant has amended his answer by setting up the fact that none of the taxes of that year, paid by the railroads, remained in his hands. This allegation of the answer was sustained by the proofs and by the findings of the county judge.

At least one modification of the report of the county judge must be made. This is substantially conceded by the counsel for the respondent. There has been allowed to the respondent costs of the proceeding before the county judge. Costs were properly allowed to him in this court, and in the court of appeals, under the decision already mentioned. But we know of no statute which permits the allowance of costs as in an action where the special proceeding is instituted, not before the court, but before the judge at chambers. Patterson v. Burnett, 23 N. Y. State Rep., 363; Hill v. Sheldon, 28 id., 885.

The amount of such costs, namely, $152.35, must consequently be deducted from the final order.

In another respect we are of the opinion that the report must be modified, and that the allowance of interest upon the sum so received by the county treasurer should not have been made by the final order herein. Up to the time of the decision of the court of appeals herein before mentioned, the act of 1869 had been practically unenforced throughout the state. The general term, in what was then the fourth department, in the case of Phelps v. Williams, 5 Albany L. J., 204, which was decided prior to any demand made upon the defendant in these proceedings, held that the provision of the act upon which this proceeding was founded was unconstitutional and void.

The question, therefore, is, whether or not, under the law as it was then deemed to be, the defendant has been guilty of any unreasonable refusal to comply with the demand made upon him in the year 1882 for setting apart these funds. Undoubtedly public officers who fail to pay over money in their hands, according to their well-defined and legal duty, will be charged with