it himself (according to the testimony of S. D. C. Van Bokkelen). Van Bokkelen said he would see if he could take the policy up, that he would be very happy to take it up if he could arrange to get the money, and that he was not in a condition then to do any thing about it. Nothing was said about its being held as security for premiums.

Van Bokkelen did nothing further until April 25, 1888, when he made an assignment to the plaintiff of all his right, title and interest in the policy. He died less than six months afterwards.

Although there is no written evidence of the agreement upon which Mitchill held this policy after the closing of the transactions, to secure which it had been originally given, there is evidence in the testimony of S. D. C. Van Bokkelen of an admission or declaration of Mitchill on this subject just prior to the time of the settlement of August, 1851.

This witness was the brother of the insured, and was an acceptor of some of the drafts given in settlement, his firm, R. H. Berdell & Co., being acceptors of the others; he went with his brother to see Mitchill, and inform him as to the responsibility of himself and his firm as proposed acceptors, and he swears that Mitchill then said that if his brother died before the drafts matured, the proceeds of the policy would be applied towards their payment, and that after those drafts were paid, he, Mitchill, would have no other claim against the policy.

The plaintiff, the assignee of Van Bokkelen, now sues for an accounting with respect to the proceeds of the policy and the payment of premiums by the deceased, Samuel L. Mitchill, or the defendants, his executors, claiming that there is due him from defendants the sum of $3,146.71, as follows: Total amount of premiums paid from October, 1851, to October, 1873, inclusive, $2.863.50, interest on each yearly premium of $124.50 from date of payment to December 18, 1888, $4,889.79, making a total of $7,853.29 to be deducted from the proceeds of the policy $11,000, leaving $3,146.71.

The defendants contend, first, that neither the plaintiff nor his assignor Van Bokkelen had any interest in the policy after the settlement of August, 1851; and, second, that if they had such interest and the plaintiff is entitled to an accounting, there is nothing coming to him, because by the usage and course of dealings between his assignor and Mitchill the account for payment of premiums is to be stated in the manner in which the previous accounts between the parties were stated, that is to say, with annual rests, adding interest to the principal each year and computing interest on such total as principal. By this method.

the account would stand as follows:

Premiums and interest compounded $17,239.57, from which the proceeds of the policy, $11,000, are to be deducted, leaving a balance in favor of the defendants of $6,239.57.

There is room for question as to the terms and conditions upon which Samuel L. Mitchill held the policy and paid the premiums after the settlement of 1851.

There is force in the defendants' suggestion that the policy

may have been part consideration for the abatement of over $12,000 of indebtedness then due him from Van Bokkelen.

It does seem, as suggested by defendants' counsel, singular that Mitchill should continue for over twenty years to pay the premiums on the policy as a mere accommodation to, and for the sole benefit of Van Bokkelen; that during that time, and for ten years longer, Van Bokkelen should not by word or act indicate that he had any interest whatever in the policy.

But in the absence of evidence as to the agreement of the parties in this matter after the closing of the mercantile transactions between them, we must be guided by the presumption of law that the original agreement continued.

By this agreement made on October 15, 1846, any balance of the proceeds after the liabilities to Mitchill were satisfied was to be paid over to Van Bokkelen's legal representative.

There was no change in this agreement up to the time of the settlement, as testified to by S. D. C. Van Bokkelen, and there is no proof that any change was made afterwards. While it is not in accordance with any known business principles or rules that Mr. Mitchill should carry this policy for so many years apparently for the mere benefit of Van Bokkelen and as a matter of charity, there is no such improbability in it as to overcome the presumption of law to which I have referred, and I feel constrained to hold, therefore, that Van Bokkelen continued to have an interest in the policy and that his assignor is entitled to an accounting with respect to it.

Upon the accounting I do not doubt that interest should be computed on each payment of premium from the time of payment to the date of collection of the policy, and should not be compounded by allowing annual rests. It is true that in the mutual accounts of the parties from 1846 to the settlement in 1851, interest was calculated and added in each account to the principal, and that upon the totals and balances interest was again computed; but there is no evidence of an agreement that the usage or course of dealings so established should continue after the settlement of the account and in respect of subsequent advances for the payment of premiums.

No account of such advances was rendered to Van Bokkelen after the settlement. Before that time accounts were sent him semi-annually or annually, but they were discontinued after August, 1851. An agreement to pay compound interest upon subsequent advances for premiums would be implied from the receipt and retention of accounts made out upon that basis, but there were no such accounts. If there were subsequent mutual accounts or dealings between the parties, even if no accounts were rendered, the presumption would be that the prior usage or course of dealings with respect to the computation of interest continued. But there is no presumption in this case, because mutual accounts and dealings had ceased. There was simply an account on one side for premiums paid by Mitchill.

The custom or usage in the prior mutual accounts is not to be presumed to continue in such an account as that. The reason for

implying an agreement to pay compound interest in merchants' accounts and mutual dealings is that "an extension of time for payment is implied, and the transaction is fair as the balance may change and the benefit of the usage be mutual." Kelly on Usury, 49, quoted in Young v. Hill, 67 N. Y., 171.

The reason for the rule does not exist in a case where there are no mutual dealings, as here, where there was merely an advance to pay premiums, and no implied extension for payment, and where the balance could not change nor the benefit of the usage be mutual. The account for premiums paid was a new account of a different character from the prior dealings between the parties, and there could be no presumption that the usage in the prior accounts was to continue in the subsequent one.

Plaintiff is entitled to judgment, with costs.

John E. Parsons, for app'lts; Julien T. Davies and Edward Lyman Short, for resp't.

LARREMORE, Ch. J.-The judgment should be affirmed on the opinion of Judge Daly at equity term. I recognize, as he did, the force of the suggestion that the retention of the legal title to the life insurance policy may have been part consideration for the abatement of fifty per cent. of the former debt. But there is nothing in the case from which a court could find that it was. There was a settlement between the parties in 1851, in which the plaintiff's assignor received "a full discharge of all demands against him to this date." The legal title to the policy still remained with defendant's testator, but, as it seems to me, and as Judge Daly held, such legal title was subject to the provision in the original assignment that the "proceeds of said policy, when collected, to be applied to the liquidation of any liabilities that may be due from him to me, and any balance remaining after such liabilities are discharged to be paid over to his (Van Bokkelen's) legal representatives."

If all liabilities were settled and discharged in 1851, even though half of the debt was merely forgiven, I cannot see how a court could make a new agreement for the parties, in the absence of any proof of a modification of the original contract between themselves. I think Judge Daly has correctly held on the subject of interest. The mutual business accounts between the parties were settled and closed in 1851. Therefore, as he has shown by argument and authority, the reason for the rule allowing compound interest ceased to exist.

I am also of opinion that plaintiff was not allowed to trespass upon the fair limits of this controversy as drawn by the pleadings. Plaintiff relies upon the original assignment of 1846, and it was within the scope of his complaint to show that the indebtedness of the parties then existing and to accrue from subsequent mutual mercantile transactions had been liquidated and settled in 1851, so that the clause reserving the policy to the insured and his personal representatives became operative.

Judgment affirmed, with costs.
BOOKSTAVER, J., concurs.

ANNA MARIA DOYLE, Resp't, v. THE MANHATTAN RAILWAY CO. et al., App'lts.'

(New York Common Pleas, General Term, Filed June 2, 1890.)

RAILROADS-DAMAGES-EVIDENCE.

Reargument ordered on the ground that evidence to the same effect as that decided to have been erroneously excluded was admitted without objection on the trial, and that it did not appear that such evidence was not considered by the court.

MOTION for reargument.

Peckham & Tyler (Wm. G. Peckham), for resp't, for motion; Edward S. Rapallo and Brainard Tolles, for appl'ts, opposed.

BISCHOFF, J.-The ground upon which reversal herein was directed by the January general term (1890), is stated in the opinion of Chief Justice Larremore to be the erroneous exclusion by the learned trial justice of evidence offered on the part of the defendants tending to show that the premises affected by this action, with other property along the line of Sixth avenue, have been greatly benefited and enhanced in value by the construction and operation of defendants' elevated railroad. And the opinion of the learned chief justice, that the exclusion of such evidence constitutes error, has since been fully sustained by the court of appeals in Newman v. The Manhattan Elevated Railway Co. (decided March, 1890), published in the New York Law Journal of March 10, 1890; 30 N. Y. State Rep., 36.

The respondent on this motion for leave to reargue the appeal, while she admits the exclusion of the evidence referred to in the opinion of the learned chief justice, claims that evidence of like effect with that which was excluded was admitted upon the trial without objection, and her claim in this respect appears to be corroborated by an examination of the proceedings had before the trial justice.

The following witnesses for the plaintiff on cross-examination testified without objection to the beneficial effect of the elevated railroad upon property along the line of Sixth avenue: Waterloo, Stevens; and witnesses for defendants: Blackwell, Campbell, Plass and Lockwood, testified with similar import without objection. Therefore the testimony excluded appears to have been cumulative only of the testimony admitted, and no harm can be said to have accrued to defendants from such exclusion.

No request to find as matter of fact that the plaintiff's premises were beneficially affected by the construction and operation of the defendants' road appears to have been submitted by the defendants, and the case on appeal fails to indicate that the evidence admitted did not receive the due consideration of the learned trial justice, but, on the contrary, the meagreness of the amount at which the fee damage has been estimated would lead to the belief that in fixing upon that amount the learned trial justice had in his mind the possible enhancement in value of the plaintiff's premises upon the extension of business along the line of Sixth 1 See 29 N. Y. State Rep., 139.

avenue partly attributed by the witnesses, whose testimony was admitted, to the construction and operation of the defendant's railroad.

In view of the foregoing, I think the respondent's motion for reargument of this appeal should be granted. LARREMORE, Ch. J., concurs.

ANTON BENESCH, Resp't, v. THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, App'lt

(New York Common Pleas, General Term, Filed June 2, 1890.)

1. CORPORATIONS-PROOF OF EXISTENCE.

It is enough in ordinary actions to prove the existence of a corporation de facto, without proving formal compliance with the requirements of the law or charter in respect to its organization.

2. SAME-LIABILITY FOR ACTS OF AGENTS.

A corporation having a legal status and a general business office in this state cannot question the right of its legally authorized agents to make a contract within the general scope of its business. In such case special limitations of authority of agents will not prejudice those dealing with it when relying on the statement and action of its duly authorized representatives.

APPEAL from judgment of the seventh district court.

A. C. Kudlich, for iesp't; Langbein Bros. & L., for app'lt.

LARREMORE, Ch. J.-The case presented upon this appeal is of great importance, and as a test case deserves, as it has received, a most careful consideration.

The main question in dispute involves the right of Miller, the superintendent and alleged special agent of defendant, of which Hill was the manager of the branch office at No. 28 Union square in the city of New York, to bind the defendant corporation. Its existence as such de facto we think was established sufficiently for the purpose of this action. It is enough, in ordinary actions, to prove the existence of a corporation de facto, without proving formal compliance with the requirements of the law or charter in respect to its organization. Abb. Tr. Ev., 18, 19.

Such presumption arises by the conduct of a corporation and their officers and agents the same as in regard to individuals. It would be presumed that they conduct their operations substantially upon the same principles and in the same manner as individuals engaged in like business. Abb. Tr. Ev., 88.

All dealings not apparently beyond the scope of the corporation are presumed to be valid until the contrary is shown. Illegality is not presumed, but must be proven. Abb. Tr. Ev., 33. A corporation acting within the scope of the legitimate objects of its institution, is bound by all parol contracts made by its authorized agent. A person seeking to charge a corporation with the act of its officers is not affected by secret instructions limiting the officer's apparent powers. Bank of Attica v. Pottier & S. Mfg. Co., 17 N. Y. State Rep., 327.

N. Y. STATE REP., VOL. XXXII. 10