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what occasions it was so called, so Defendant pleaded the truth of
fendant for the distribution of its Judgment reversed, new trial newspapers in a certain district, granted, costs to abide event. and appointed plaintiff a local
Opinion by Follett, J.; Hardin, agent for that purpose at Fulton P. J., and Boardman, J. concur. and its vicinity. He testified that
plaintiff, at the time he was apLIBEL. EVIDENCE. pointed, represented that he was N. Y. SUPREME COURT. GENERAL the owner of a house and lot. This TERM. FOURTH DEPT.
fact, if so stated, is conceded to be Bruce J. Kimball, applt., v. The untrue. Defendant was permitted, Herald Co., respt.
under objection, to show that this Decided Jan., 1885.
representation was reported by S.
to defendant's president and genIn an action for libel in publishing plaintiff as a swindler in having obtained credit
eral manager. by false representations, where the truth S. N. Dada, for applt. of the statement is pleaded in justification E. Nottingham, for respt. and mitigation, evidence that defendant's
Held, No error. Whether the general agent, to whom the representa
information was true or false it tions were made, communicated them to defendant and that it relied upon them, is was competent evidence in mitigacompetent in mitigation of damages. tion of damages if defendant relied
Appeal from judgment entered upon it in making the publication. on verdict of a jury for defendant, 81 N. Y., 246; 7 Robt., 319; 34 and from order denying motion How.,
How., 488. for a new trial on the minutes. J., defendant's president, was
Action for libel. The complaint permitted to testify that S. reportalleged that defendant published, ed to him the representations made in its daily newspaper, Sept. 13, by Kimball, and that he relied 1880, the following article: “Mr. upon the representations. Kimball owes The Herald Com
81 N. Y., pany a debt contracted in the 246. course of his business relations Also held, That the verdict canwith us which he refuses to pay. not be disturbed on the ground His account was permitted to run that it is contrary to the evidence. on because he grossly misrepre- The evidence of plaintiff and of S., sented his pecuniary circumstances as to whether plaintiff made rep
When we discovered the resentations as to his property, is trick we resolved to nip his swind- directly in conflict, and it was the ling operations in the bud, and duty of the jury to decide as betook steps which will enable us to tween them. If plaintiff represhow publicly in court what man- sented that he owned the house ner of man he is.”
and lot it was untrue, as he con
cedes. He also concedes that at period named as its life-time. Held That the time of the publication he was
such policy was a valid and subsisting in
surance at that time, notwithstanding indebted to defendant for news
a clause contained therein, that the compapers.
pany should not be liable upon the policy The jury having found that until the premium should be actually plaintiff had no cause of action, it
A clause contained in a policy of fire insuris unnecessary to determine
ance declaring that the agent of the comwhether the charge as to exem- pany has no authority to waive, modify, plary damages was correct or in- or strike from the policy any of its printed correct.
conditions, applies only to agencies of the
company maintained separately and disJudgment and order affirmed,
tinctly from the office of the company itwith costs.
self, and not to the officers and imme.
diate employees of the company. Opinion by Follett, J.; Hardin,
A policy which has become a valid and P. J., and Boardman, J., concur.
subsisting contract cannot be cancelled without notice to the person for whose
benefit it is issued. FIRE INSURANCE.
The fact that an insurance company has ob
tained reinsurance upon a policy issued by N. Y. SUPREME COURT. GENERAL
it, and that entries have been made in its TERM. FIRST DEPT.
books charging the premium to the in
sured, may be considered in determining Eliza B. Anderson, respt., v. The
the understanding of the company as to Continental Ins. Co., applt.
the effect and validity of the policy. Decided Jan. 9, 1885.
Appeal from judgment recovA policy of fire insurance was issued by de. ered on the verdict of a jury, and
fendant upon property owned by plain- from an order denying® a motion tiff, and was sent by defendant to the for a new trial. hotel at which she had been staying for the purpose of being delivered to her.
A policy of fire insurance was She had left said hotel, and the policy issued by defendant upon propwas sent to the person through whom she erty owned by plaintiff. This had made application for it, but it was policy was sent by defendant to the returned by him with the statement that plaintiff had left the city and he had no
hotel in New York city where knowledge of her wishes in reference to plaintiff had been staying for deliit. Defendant then charged the premiums very to her, but she had left said to plaintiff on its books and sent bills for hotel. The policy was then sent to the same to two places where it was supposed plaintiff might be found, stating
one M., through whom plaintiff had that the policy was held subject to her or applied for said policy, and was left der, but these bills were not received by at his address. M. returned said her. Plaintiff returned to the city during policy to defendant with a letter the period named as the life-time of the policy. but made no efforts to pay the stating that plaintiff had left the premium. In the meantime defendant city, and he was not advised as to had procured reinsurance upon the policy, her wishes in respect to said policy. but, the premium not being paid, it can- Defendant then charged plaintiff celled such reinsurance and stamped the policy as cancelled, without, however,
with the premium upon its books notifying plaintiff. The property was
and sent bills for the same to two subsequently destroyed by fire during the places where it was thought she might be reached, stating that the facts made to appear, because the policy was held subject to her or- policy further declared, “That the der. These bills were not received agent of this company has no auby plaintiff. She subsequently, thority to waive, modify, or strike during the period designated as the from this policy any of the printed life-time of said policy, returned to conditions." the city, but failed to pay the Held, That this provision was premium upon the policy. In the not framed in such language as to meantime defendant had procured be rendered applicable to the comreinsurance upon the policy, but, pany and its officers, but was the premium not being paid, it had wholly restricted to the business such reinsurance cancelled and intended to be carried on and transstamped the policy as cancelled, acted by insurance agents mainbut without notifying plaintiff. taining a separate business of their Subsequently, but during the time own; and, since this policy emannamed as the life-time of the policy, ated directly from the company itthe property insured was destroyed self it was within the authority of by fire, and plaintiff then brought the persons having the business of this action upon the policy to re- the company in charge, under the cover the value of such property. immediate control and supervision The policy contained the state- of its officers, to give credit for the ment or condition that the com- premium and waive the provision pany should not be liable upon it in question. That that gave it the until the premium therefor should character of a valid and subsisting be actually paid, and this action contract between defendant and was resisted chiefly on account of plaintiff, and the insurance could the omission of plaintiff to receive not be cancelled without notice the policy and pay the premium. to the insured, and, as no such no
Wm. Allen Butler and Thos. H. tice was given, the formal cancelHubbard, for applt.
lation of the policy was of no efBenjamin H. Bristow and Ed- fect. 109 U. S., 278. ward Mitchell, for respt.
The court was requested to charge Held, That the facts showed that that taking reinsurance was no there was a delivery of the policy evidence of an intent on the part by defendant to M., then plain- of defendant to excuse the pay. tiff's agent, with the intention that ment of the premium, and that enit should take effect as an insurance tries by defendant in its books not of her property, and that a credit brought to plaintiff's notice were was given for the premium, there- not evidence of defendant's intent by waiving the condition requiring toward plaintiff. its actual payment for the validity These requests were both deof the policy.
7 Hun, 74, 77; 66 clined. N. Y., 613.
Held, No error. That the court It was objected that such an ef- had already properly charged that, fect could not be ascribed to the while the taking of reinsurance
created no liability on the part of The production upon the argument of an defendant to plaintiff, it was a fact
appeal of the judgment roll showing the
reversal of the judgment entered upon which the jury could take into con
such report will not correct the error of sideration, and that the entry in the the referee in disregarding such report books, whereby the premium was
without evidence of said reversal. charged to plaintiff, was a circum- Appeal from a judgment recovstance indicating the understand- ered on the report of a referee. ing of defendant to be that the This action was brought to repolicy had become effectual, and cover the sum of $3,000 as the that the plaintiff thereby had in- amount of commissions plaintiffs curred an indebtedness to the com- were entitled to under an agreepany for the payment of the pre- ment made with defendant upon mium.
orders received by it in the course Judgment and order affirmed. of its business upon which plain
Opinion by Daniels, J.; Brady, tiffs had advanced money. J., concurred.
The defense was that the agreeDavis, P. J., dissented, holding ment under which the commissions that the facts did not amount to a were claimed was made by fraud delivery of the policy, and an es- and collusion on the part of plaintablishment of an indebtedness on tiffs and the directors of defendthe part of plaintiff to the com- ant, and that the
ant, and that the money advanced pany for the premium which the by plaintiffs should be considered latter could have enforced by suit as invested in the business of deagainst her, inasmuch as the policy fendant under a previous agreewas never actually accepted either ment between the parties. Another by plaintiff or her agent.
action between the same parties
had been tried before the same EVIDENCE.
referee to whom this was referred,
the object of which was to reN. Y. SUPREME COURT. GENERAL
cover back the money claimed by TERM. FIRST DEPT.
plaintiffs to have been advanced Bolton Hall et al, respts., v. U. by them, and in which the same S. Reflector Co., applt.
defense was set up, and was susDecided Jan. 9, 1885.
tained by the referee. The report
of the referee in that action was When
upon the trial of an action before a referee a report made by him in the trial
received in evidence without obof a previous action between the same jection in this action, but it was parties is admitted in evidence without disregarded by the referee in decidobjection, the referee, in deciding the
ing this case, for the reason that, case, cannot disregard such report as evidence on account of the fact that subse- subsequent to the submission of quent to the submission of the case to him, this action to him, but before its but previous to his decision of it, the decision, the judgment entered judgment entered upon such report
upon it had been reversed, and he has been reversed upon appeal, because
considered that it had therefore there is no evidence of such reversal before him,
been deprived of its weight as evi
dence, and he rendered judgment Opinion by Daniels, J; Brady, in favor of plaintiffs.
J., concurred in result. Edward P. Miller, for applt.
Davis, P.J., concurred, with the Wm. B. Hornblower, for respts. understanding that no force was to
be given to the report of the referee Held, That the fact of the rever
in the former case in the new trial sal of the said judgment was in no
ordered. manner at any time proved in this action, and it was therefore a fact
LOTTERY. which could not be legally known to the referee in the disposition of N. Y. SUPREME COURT. GENERAL this action, and no weight or effect
TERM. FIRST DEPT. should have been given to that
The People, respts., v. Chas. F. circumstance by him in its deter
Runge et al, applts. mination.
Decided Jan. 9, 1885. That the production upon the
Upon the trial of an indictment charging appeal of the judgment roll show
the crime of contriving or assisting in ing the reversal of said judgment
contriving a lottery, the confession of the did not correct the error of the re- defendant, consisting of bis explanation feree in disregarding the report, of the contrivance to a purchaser, is suffor while it has been the practice
ficiently corroborated by proof of such
purchase and the production of the article of the Court to receive upon the
purchased to warrant a conviction upon hearing of an appeal corrected re- it under g 39., Penal Code. cord evidence to supply defects in It is not necessary, in order to warrant a proof given of the same facts upon
conviction under $ 325 of the Penal Code
for contriving or assisting in contriving a the trial, this rule does not permit
lottery to prove that any person paid or independent and additional evi
agreed to pay anything for any chance dence to be given. That its object
for which the lottery provides. is to afford an opportunity to cor- Appeal from a conviction in the rect informalities in record evi- Court of General Sessions. dence received during the progress The defendants were indicted of a trial, and to permit such evi and convicted of contriving or asdence to be produced for the first sisting in contriving a lottery in time upon appeal. 40 Barb., 449; violation of the provisions of $ 325 45 N. Y., 160; 70 N. Y., 613. That of the Penal Code. other proof of the defense might The evidence for the prosecution have been given if the referee's re- consisted of the testimony of a port had not been put in and re- witness who testified that he had ceived, and it could not be said that purchased of defendants an ara good defense might not have ticle which he produced, and been established by such other which was a box having numbered proof.
compartments containing certain Judgment reversed and new trial articles and pieces of chewing-gum ordered, costs to defendant to correspondingly numbered, and abide event.
that, at the time of such purchase,