tract. 1 Daniels on Negotiable Instruments, 518; 1 N. H., 80; 50 N. Y., 410; 3 Kent's Com., 11 ed., 128; Chitty on Bills, 12th Am. ed., 415; 1 Parsons on B. and N, 371; 6 R. I., 259; 3 Whart., 116; 4 McCord, 593; 11 Iowa, 476. A demand of payment by letter is insufficient to charge an endorser on a promissory note; he can only be charged by demand made at the time and place indicated by the note. Judgment of General Term, dismissing complaint, reversed, and new trial ordered. Opinion by Ruger, Ch.J. All con cur. Charles H. Smith and A. H. Ammidown, for applts. R. S. Newcombe, for respts. Held, That this mode of procedure, though perhaps technically correct, is not to be encouraged, however convenient it might be professionally. That fraud was not so satisfac torily proved as to warrant the reversal of the orders appealed from. Opinion by Brady, J.; Davis, P.J., concurred, as did also Daniels, J., who held that the affidavits were very irregularly made, inasmuch as several actions could not be combined in the manner done in these cases for distinct orders of arrest in each case. ARREST. PRACTICE. N. Y. SUPREME COURT. AGENCY. INSURANCE. GENERAL N. Y. SUPREME COURT. TERM. FIRST DEPT. James W. Whitney et al., applts., v. Adolphus Hoffstadt et al., respts. Decided March 4, 1885. The practice of presenting a single set of affidavits entitled in several different actions by different plaintiffs against the same defendants, for the purpose of obtaining separate orders of arrest in each action is not to be encouraged. Appeals from orders vacating orders of arrest granted in these actions upon the ground that defendants, since the making of the contract sued upon, had disposed of their property with intent to defraud their creditors. The orders of arrest vacated were granted in seven actions by different plaintiffs against the same defendants upon a single set of affidavits, which were entitled in the seven actions. GENERAL TERM. FOURTH DEPT. Rhoda Clark v. The Glens Falls Ins. Co. Decided April, 1885. An insurance agent can authorize his clerk to countersign policies and the act of the clerk in such case is the act of the agent and binds the company just as effectually as if it were done by the agent in person, even though the policy requires that it shall be countersigned by the authorized and commissioned agent. Where the proofs of loss required by the terms of a policy are defective, the neglect of the insurance company to reject and return them within a reasonable time is a waiver of any defect or deficiency therein. Where proofs of loss were forwarded June 19th, 1879, were received by the company June 21st, 1879, and the company retained the proofs furnished until the 28th day of the same month, two days after the time for furnishing proofs had expired, without objecting to them, and then returned them on the ground that the proofs were not made by plaintiff, Held, That it was for the jury to determine whether there was or not such neglect on the part of defendant as to constitute a waiver. Dailey & Bentley, for plff. Held, In determining the propriety of a nonsuit the court is legally bound to assume the truth of the facts which the testimony legitimately tends to prove. 3 Barb., 110; 20 N. Y., 492; 35 id., 925; 5 id., 496. Assuming, then, that M. D. was authorized by defendant's agent to issue this policy, the question arises whether defendant's agent could delegate such power to his clerk. Story states the rule as follows: "The authority is exclusively Appeal by defendant from order of Special Term, setting aside a nonsuit and granting a new trial. The action was upon a policy of insurance against loss by fire covering plaintiff's barn. The policy in suit was countersigned and delivered by M. D., a clerk in the office of D. C., the authorized and commissioned agent of defendant. M. D. was authorized by defend-personal unless, from the express ant's said agent D. C. to contract language used or from the fair new insurance, renewals, to make presumptions growing out the particulars or of the usages of monthly and daily reports and coltrade, a broader power was intendlects premium on policies and reed to be conferred on the agent. newals issued. Story on Agency, § 14; Dunlap's Paley on Agency, 175, n. 1; Wait's Actions and Defences, 235; 2 Kent's Com., 633. The proofs of loss were signed and verified by plaintiff's husband and agent. The signing and verification of the proofs was an act which the policy required the claimant to personally perform. The proofs were forwarded to defendant on the 19th day of June, 1879, and were received by defendant as early as the 21st day of the same month. Plaintiff then had tive days within which to furnish other proofs if those should prove unsatisfactory to defendant. Defendant retained the proofs furnished until the 28th day of the month, two days after the time for furnishing proofs had expired, without objecting to them, and then returned them, upon the ground, among others, that the proofs were not made by plaintiff. of 1 In the case of Bodine v. Exchange Fire Ins. Co., Judge Earl, in delivering the opinion of the court, says: "We know, according to the ordinary course of business, that insurance agents frequently have clerks to assist them, and that they could not transact their business if obliged to attend to all the details in person; and these clerks can bind their principals in any of the business which they are authorized to transact. An insurance agent can authorize his clerk to contract for risks, to deliver policies, to collect premiums, and to take payment of premiums in cash or se curities, or to give credit for pre miums or to demand cash; and the act of the clerk in all such cases is WATER-COURSES. DIVER SION. the act of the agent, and binds the N. Y. SUPREME COURT. GENERAL company just as effectually as if it were done by the agent in person." 51 N. Y., 123. See also 14 Hun, 458; 18 id., 230; 63 N. Y., 463; 68 id., 437; 85 id., 478. I infer that the principle upon which it was held in the Bodine case that the clerk of an agent of an insurance company might perform the acts enumerated was that "from a fair presumption growing out of the transaction, or of the usage or custom of the insurance business, a broader power than mere authority to act personally was intended to be conferred." If within that principle the clerk can contract for risks, he can, I think, perform the act of countersigning the policies within the same principle. But it is said that the policy requires that it shall be countersigned by the authorized and commissioned agent. True, but within the Bodine case the countersignment by the clerk is the act of such agent. Held further, That notice by plaintiff's husband was sufficient, there being no objection or offer to return it upon that ground. 76 N. Y., 459. It was for the jury to determine whether there was or not such neglect on the part of defendant as to constitute a waiver. Order granting new trial affirmed upon the opinion of Mr. Justice Martin at Special Term. Mem. by Boardman, J.; Hardin, P.J., and Follett, J., concur. TERM. FOURTH DEPT. Jacob W. Mitchell, respt., v. The N. Y., L. E. & W. RR. Co., applt. Decided April, 1885. When a corporation or individual attempts by artificial means to interfere with the natural action of water to serve its or his own purposes, he must see to it that it shall be done in such a way as shall not unnecessarily do an injury to his neigh bor. Appeal from judgment in favor of plaintiff, entered upon a verdict, and from an order denying a motion for a new trial. The RR. Co. erected an embankment near the mouth of Dry Brook, whereby the surface waters were prevented from passing below the RR. as they had before done. It then opened a ditch to carry said waters along the upper side of the RR. to the southeast along the side of its track, and on its own land, to a point below plaintiff's land, which was adjoining. For a series of years this ditch was kept open and the water discharged through it without unnecessary injury to plaintiff. But after 1877 defendant failed to keep open the ditch, whereby the water was accumulated in unusual quantities in a depression of the surface of the ground and by reason thereof overflowed plaintiff's land, causing the injury for which this action is brought. This act resulted in carrying surface waters by a ditch, and by its failure to keep the ditch open dis charging an unusual and unnatural quantity of water upon plaintiff's land. D. C. Robinson, for applt. Held, That the facts bring the case within those decisions forbidding such interference with the flow of surface water to the detriment of others. Andrews, J., in Barclay v. Wilcox, 86 N. Y., 147, says the owner of land "may get rid of it [surface water] in any way he can, provided only he does not cast it by drains or ditches upon the land of his neighbor." To the same effect is Noonan v. City of Albany, 79 N. Y., 470; 67 id., 267; 65 id., 341; 20 W. Dig., 528. The same principle applies to highway officers who stop up culverts and carry the surface water upon the upper side of a highway for some distance and then through a culvert discharge the same in unnatural and unusual quantities upon the lower proprietor to his injury. 63 Barb., 185. Judgment and order affirmed, with costs. Where such creditor was afterward employed by other creditors to induce the debtor to pay them a sum in addition to the offer, in an action to recover the agreed compensation for such services, Held, That a motion for nonsuit on the ground that a double agency existed and thereby a fraud was practiced on defendants wa properly denied; that the question of fraud was for the jury to determine The complaint in this action set up a special contract, whereby plaintiff was to go to Canada and see E. B., the senior member of the insolvent firm of E. B. & Co., which was largely indebted to defendants, and procure him to pay $24,000, in cash, in addition to an offer of a compromise of fifty cents on the dollar of said indebtedness, which had been previously made to defendants on behalf of said firm, defendants agreeing that if plaintiff succeeded in procuring said payments to be made they would pay him $4,000 and his traveling expenses and disbursements. The complaint alleged performance on plaintiff's part and refusal by defendants to pay plaintiff as aforesaid. It appeared that plaintiff was a friend of E. B., and also a creditor of the firm of E. B. & Co., which facts were known to defendants, who were also aware that plaintiff desired to have a compromise by E. B. & Co. and their creditors effected, and had urged the acceptance of one already offered, and defendants supposed plaintiff knew where E. B. was. There was no proof that plaintiff was in any way employed by E. B. & Co. Plaintiff exerted his influence on E. B. and fulfilled his contract with defendants. Defendants moved for a nonsuit on the ground that a double agency existed on the part of plaintiff, involving the exercise in some degree of judgment and discretion, and so imposing upon him the performance of inconsistent duties, and thereby a fraud was practiced on defendants. The motion was denied. Charles W. Gould, for applts. Aaron Pennington Whitehead, for respt. Held, No error. Whether the evidence justified defendants' assumption and whether a fraud was thereby practiced was to be determined by the jury. It was inherent in the contract that there could be no breach of trust or confidence by plaintiff towards defendants as it respected the terms of compromise, for they reposed none in him. Where an insolvent offering a compromise requests some creditor, upon whose friendship and good will he thinks he can rely, to accept the offer for himself and advise its ac ceptance by the other creditors, and the latter promises to do so and fulfills the promise, he does not thereby become the agent of the debtor to make the settlement or commit a fraud upon those he advises to accept. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Finch, J. All concur, except Rapallo, J., not voting. EVIDENCE. N. Y. SUPREME COURT. GENERAL Decided March 4, 1885. Vol. 21-No. 9a. It appeared that during the negotiations for the sale of the vessel defendant referred plaintiff to the captain, who, he stated, would show him the vessel and could tell him all about her, and plaintiff proposed to prove what the captain had said concerning the vessel in a conversation which plaintiff subsequently had with him upon the subject. This evidence was excluded. Dexter A. Hawkins, for applt. E. W. Taft and R. D. Benedict, for respt. Held, That SO far as the exclusion of this evidence may have proceeded upon the ground that plaintiff could not prove further representations as to the condition of the vessel after he had subscribed the memorandum of the contract for her purchase, the deci |