plaintiff to advance money or pay the notes, and gave evidence tending to prove that he indorsed the notes for the accommodation of S., and offered to show that they were discounted by plaintiff at usurious rates. This evidence was excluded and the judge in submitting the case to the jury said that the only question for them to pass upon was whether on the 24th of May defendant requested plaintiff to take up the notes and whether plaintiff on that request took them up, "if so he is entitled to a verdict, otherwise it will be for defendant." Defendant claims that as plaintiff was under a prior legal obligation to pay the notes his doing so, although at defendant's request, creates no liability on the part of the latter. W. I. Butler, for applt. Held, Untenable; that the obligation primarily incurred by plaintiff was a contingent one; that it was not an obligation to defendant and he was not in any manner interested in its performance; that his obligations upon the paper did not prevent such an express contract as the one proved by plaintiff. It was not necessary to sustain it that it should appear that defendant acquired any actual advantage. It is enough that at his request something was done which originally plaintiff had not undertaken to do. 1 Taunt., 523; 4 id., 611; 9 C. B., N. S., 159; 10 id., 259; 6 H. & N., 295; 7 N. Y., 349; 59 id., 250; 45 id., 45. Plaintiff `waived a right to which he was entitled, and so enlarged his liability, and defendant received a benefit. The respondent now objects that the case was not a proper one to be heard in the first instance at General Term, where a decision was rendered in his favor. It does not appear that he objected at the trial to directions sending the case to the General Term. Held, That it is now too late to object. Order of General Term, setting aside verdict for plaintiff and directing a new trial, reversed, and judgment ordered on verdict for plaintiff. Opinion by Danforth, J. All concur. MASTER AND SERVANT. N. Y. COURT OF APPEALS. Brick, admrx., respt., v. The Rochester, N. Y. & Pa. RR. Co., applts. Decided Feb. 10, 1885. Intestate was in the employ of defendant engaged in repairing the track. The construction train on which he was riding ran off the track at a crossing where mud had been thrown on the track by passing wheels and had frozen, filling up the rails, and he was killed. One T., who was in charge of the train, was also general foreman of repairs and charged with the duty of seeing that crossings were properly cleaned and in safe condition, and this he had attempted to do. Held, that intestate in performing these services must be assumed to have understood the condition of the road and subjected himself to greater risks than he would have incurred under ordinary circumstances, and that T. in the duties he was performing at the time, was only a fellow-servant for whose negligence defendant was not liable. This action was brought to recover damages for the death of B., plaintiff's intestate. It appeared that at the time B. was killed the railroad, over which he was passing in a car of defendant on which he was employed, had been allowed to fall into decay and was then in process of reconstruction. He was one of a number of laborers who were repairing the track and had been passing over it and was familiar with it. The train ran off the track at a crossing and the accident was attributable to the fact that rain had fallen the previous night, which caused the mud from passing wagon wheels to fill up the space alongside of the rails, in which the flanges of the wheels ought to run, and this mud froze solid and prevented the cars from passing along on the track. One T. was general foreman in reconstructing and repairing defendant's track and had the direction of the movements of its trains, and was charged with the duty of seeing that the crossings were properly cleaned and kept in safe condition for the passage of trains. He had charge of the train in question at the time of the accident, and had attempted to perform the service with which he was charged. The court held that defendant was liable for the negligence of T. and denied a motion to dismiss the complaint. Sherman S. Rogers, for applt. F. C. Peck, for respt. Held, Error; that B. in performing the services in which he was engaged and in traveling on the construction train may be assumed to have understood the condition of defendant's road, and thus subjected himself to greater risks and perils than he would have incurred under ordinary cir cumstances. The obstruction on the track was not a defect of an intrinsic character, but one which arose from extrinsic and temporary causes for which defendant would not be liable: that T., in the capacity in which he acted, was only a fellow servant, and defendant was not liable for his negligence. The fact that T. had imposed upon him larger duties, embracing the construction of the entire road, does not alter his relation here. Even if T. may be regarded as representing defendant in some respects in reference to the road generally, the duties he was performing at the time of the accident were those of a fellow servant and not of the master, and if he was chargeable with negligence it was that of a fellow servant and not of the master. 81 N. Y., 516; 84 id., 77. The court was requested and refused to charge that if T. knew of the defect in the crossing proven, and undertook to start the train without removing it, it was the negligence of a co-employe and plaintiff could not recover. Held, Error. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial ordered. Opinion by Miller, J. All concur; Earl, J., on last ground. Danforth, J., absent. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Mary Dietrick v. The Firemen's Fund Ins. Co., of San Francisco. Decided Jan., 1885. An oral contract to insure property for one year against loss by fire by a written contract to be thereafter delivered, but to take effect immediately, is valid and if a loss occurs before the written contract is delivered the insured may recover on the oral contract. When a principal, intending to create a special agent with power to do a single act, negligently executes and puts forth a general power of attorney under which the agent acts, the principal is bound as between himself and a third person acting in good faith. Motion for new trial on exceptions ordered heard at General Term in the first instance after non-suit. Action to recover for the loss of a building by fire. The complaint alleges that Feb. 25, 1882, defendant by its duly authorized agent orally agreed, in consideration of $13 then paid, to insure plaintiff's unoccupied house and contents for one year from that date against loss by fire by a written contract thereafter to be delivered; that defendant failed to deliver a policy as agreed, and that Aug. 3, 1882 the property was burned. Evidence was given tending to prove these facts. It also appeared that the contract was made in the jail at Ithaca, where plaintiff and her husband were confined under sentences of imprisonment for one year in the Onondaga Co. Penitentiary, where they were taken Feb. 27 and remained until Dec. 23, 1882. On March 3 plaintiff executed and delivered to one O. a power of attorney to transact her business, rent buildings and land, sell personal property, insure building, pay for the insurance of the house, proceed with papers for the pardon of herself and husband and "for the transaction of my business of every name and nature." March 8, 1882, defendant issued a policy on said house for one year. It provided that "No liability shall exist under this policy for loss on any vacant or unoccupied building, unless consent for such vacancy or unoccupancy be hereon endorsed." "Proofs of loss under this policy as herein required must be made and filed by the assured within 60 days from the date of the fire." the fire." "No action *** for the recovery of any claim by virtue of this policy shall be sustainable *** unless commenced within six months next after the loss shall occur." The loss, if any, was made payable to the mortgagee. In all these respects the policy differed from that called for by the oral contract. The uncontradicted testimony showed that this policy was exhibited by defendant's agent to O., who examined it and handed it to the agent to keep. Plaintiff testified that she signed the power of attorney supposing it authorized O. to sell a colt, and that she did not ask to have it read over or explained to her. Neither O. nor S., by whom the power was witnessed, were called. It appeared by the evidence of plaintiff and her letters that O. acted for her in various matters until long after the fire, when she became dissatisfied with him because of his inactivity in attempting to procure her pardon. M. N. Tompkins, for.plff. Held, That the motion should be denied. An oral contract to insure property for one year against loss by fire by a written contract to be thereafter delivered, but to take effect immediately, is valid, and if a loss occurs before the written contract is delivered the insured may recover on the oral contract. 24 Hun, 132; 90 N. Y., 280; 50 id., 402; 44 id., 538; 27 id., 216. Under the evidence and the admissions in the answer it cannot be held as a question of law that the agent was not authorized to enter into the oral contract declared on and testified to by plaintiff and her husband. 50 N. Y., 402; 59 id., 171; 16 Gray, 448; May on Ins., § 128. For the purpose of this motion it must be assumed that the agent had authority to bind defendant by an oral contract. The policy differed from the oral contract and was not a performance of it unless accepted as a performance by plaintiff or her agent. Of course if the power of attorney was a fraud it was not binding on plaintiff, and a person acting under it could not bind her unless she was negligent in executing and putting it within the power of O. to deceive others. When a principal, intending to create a special agent with power to do a single act, negligently executes and puts forth a general power of attorney, under which the agent acts, the Vol. 21-No. 1a. principal is bound as between himself and a third person acting in good faith. Assuming plaintiff's evidence as true, that she executed this short and simple power in the presence of a subscribing witness. and others without asking to have it read or explained, she was negligent, even though unable to read it for herself. Plaintiff did not ask to have the question submitted to the jury as to whether the agent knew of the existence of this power of attorney, or whether the policy was exhibited to and approved by O. Defendant's agent does not swear in express terms that he had seen the power of attorney before he submitted the policy to O. for his approval; but from the corresponddence and evidence it pretty clearly appears that the agent knew of this power of attorney when he delivered this policy. This being so, the policy delivered was substituted for the oral contract and became the contract of insurance between the parties. That plaintiff did not comply with the conditions of the policy is undisputed. She did not furnish the proofs of loss, nor did she sue within six months after the loss, and the building was unoccupied at the time of the fire. It is unnecessary to consider whether the policy was legally cancelled on June 2, 1882, or at any subsequent time before the fire, as plaintiff would not be entitled to recover even though it had remained uncancelled. Motion denied and judgment ordered for defendant, with costs. Opinion by Follett, J.; Hardin, | terposed and obtained a judgment P.J., and Boardman, J., concur. APPEAL. N. Y. COURT OF APPEALS. Stoughton, respt., v. Lewis, impld., applt. Decided Feb. 10, 1885. Where a demurrer was stricken out as frivolous and served in violation of a stipulation, and judgment was obtained by default, Held, that an appeal from the judgment alone brought up nothing for review. The respondent is not precluded from moving to dismiss by the fact that he placed the case on the calendar and noticed it for argument. This was a motion to dismiss an appeal in the above entitled action. It appeared that the action was brought to foreclose a mortgage. The complaint contained all the requisite allegations and was served upon the defendant L. He thereafter obtained a stipulation from the plaintiff's attorney for further time to answer, agreeing at the same time that he would not put in an answer, and would not ask for or apply to the court for any further extension of time. On the last day given by the stipulation L.'s attorney served a demurrer, which alleged that the complaint did not state facts sufficient to constitute a cause of action. Thereafter plaintiff's attorney moved at Special Term to overrule and strike out the demurrer on the ground that it was frivolous and served in violation of the stipulation. This motion was granted and plaintiff proceeded as if no demurrer or answer had been in of foreclosure by default. L. appealed therefrom to the General Term, where the judgment was affirmed, and from the affirmance there to this court. No appeal was taken from the order striking out and setting aside the demurrer. Augustus Haviland, for motion. Franklin Bien, opposed. Held, That the order overruling the demurrer remains in force and cannot be assailed on this appeal; the appeal from the judgment therefore brings up nothing for review. It was claimed that plaintiff was precluded from making this motion because he noticed the case for argument and placed it upon the calendar. Held, Untenable; that he waived nothing by so doing. It was still optional with him to wait until the case was reached on the calendar, or to make this motion on the ground that an appeal to this court from such a judgment was not authorized. Motion granted. LIMITATIONS. N. Y. COURT OF APPEALS. De Freest, respt., v. Warner et al., admrs. applts. Decided Feb. 10, 1885. One W., who was indebted to plaintiff, conveyed certain real estate to his sons by deed which charged the land with and the grantees assumed to pay said indebtedness with interest. Held, That the acknowledgment of the indebtedness, although made to strangers to it, was just as effectual to defeat the statute of limit |