security the latter bank, in the usual part to perform their official duty, course of business, continued to and defendant should be treated as draw upon the former. In June, if they had full knowledge. 3 N. Y., 1875, B., as cashier, took the bonds 156. from the New York bank, and It was objected that the action pledged them with the banking should have been for money had and firm of W. D. & Co., with which received, and not in tort. 238. the Fishkill Bank also dealt. In Held, Untenable. 7 Cow., 485; January, 1876, B. repossessed him- 16 East., 6; 3 Mass., 363; 21 N. Y., self of the bonds by furnishing other security, the property of the Fishkill Bank, and restored them to plaintiff. In the same month B., as cashier, and in the name of the Fishkill Bank, and on its account, firmed. Also held, That a counter-claim was not allowable. Judgment of General Term, affirming judgment for plaintiff, af returned the bonds to said bank- Opinion by Danforth, J. All ing firm, taking back the securities concur. John Thompson and Homer A. Nelson, for applts. Milton A. Fowler and William S. Eno, for respt. Held, That the facts authorized a finding of a conversion of the bonds by the Fishkill Bank. As a general rule, a principal is liable, civiliter, for a wrong of the agent, committed in the course of his employment, and for the benefit of the principal, and this, although no express command or privity is proven. L. R., 2 Exch., 259; L. R., 5 P. C. Apps., 394; Strobh Ch., 263; 34 N. Y., 30; 72 id., 286. WATER-COURSES. N. Y. COURT OF APPEALS. McCormick et al., respts., v. Horan, applt. Decided June 1, 1880. The right of an owner of lands through which a water-course runs to have the same kept open, and to discharge therein the surface water, is not limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was unimproved and uncultivated. Such an owner may change and control the natural flow of the surface water, and by ditches or otherwise accelerate the flow or increase the volume of water, and if he does so in the reasonable use of his premises, and does not discharge surface water into the stream in quantities beyond its natural capacity, to the damage of the other owners, he exercises only a legal right. This action was brought to reAlso held, That ignorance of the strain defendant from interfering on directors of the bank of the action his own land with a stream of water of its cashier did not affect the liabi-running from plaintiffs' to and lity of the bank, as, if ignorant, it through defendant's land. It apwas because of omission on their peared that plaintiffs, in opening a quarry on their lands, made an ex-discharge therein the surface water; cavation which formed a reservoir is not limited to the drainage and into which the surface water from discharge of surface water into the the contiguous lands collected, and stream in the same precise manin the spring, when plaintiffs com- ner as when the land was in a state menced their work, they pumped of nature and unchanged by cultithis water, together with that aris-vation or improvements. The ing from the melting snow, and owner of lands drained by a waterwhat came from the small water- course may change and control the courses cut off by the excavation, natural flow of the surface water into the stream which flowed down thereon, and by ditches or otherwise through defendant's land. The court accelerate the flow or increase the found that this water, if the excava- volume of water which reaches the tion had not been made, would have stream, and if he does this in the naturally descended and flowed in- reasonable use of his own premises, to this stream, and that, although he exercises only a legal right and the flow was greater when the pump- incurs no liability to a lower proing was going on than it otherwise prietor. 53 N. Y., 11; 47 Penn., would have been, the natural capac- 154. This right is subject to the ity of the water-course was sufficient qualification that one owner cannot to carry off the water pumped into by artificial arrangements on his it, together with th the other water land concentrate and discharge inrunning into the stream. Defendant, to the stream surface water in quanin order to obstruct the flow of the tities beyond the natural capacity water, filled in the stream on his of the stream to the damage of other land and built a dam, thereby caus- owners. Noonan v. City of Albany, ing the water to set back upon 9 W. Dig., 418. plaintiffs' lands. W. F. Cogswell, for applt. S. E. Filkins, for respt. Held, That plaintiffs were entitled to the relief demanded, and defendant's act under the circumstances was unlawful. The right to the use of a watercourse for the discharge of surface or other waters exists only in respect of waters of which the watercourse is the natural outlet, and does not justify the diversion and turning of the water of one stream into another not its natural channel. The right of an owner of lands through which a water-course runs to have the same kept open and to Judgment of General Term, affirming judgment for plaintiffs, affirmed. Opinion by Andrews, J. All concur, except Danforth, J., of counsel, not voting. MASTER AND SERVANT. NEG- N. Y. COURT OF APPEALS. Decided June 1, 1880. The negligence of a servant in using imperfect machinery will not excuse his principal from liability to a co-employee for an injury which could not have happened if the machinery had been suited to the use to which it was applied. Opinion by Danforth, J. All con The negligence of a servant in using imperfect machinery will not This action was brought by plain- excuse his principal from liabiltiff, who was one of defendant's em- ity to a co-employee for an injury ployees, to recover for injuries re- which could not have happened if ceived while repairing one of de- the machinery had been suitable for fendant's cars on a side track. It the use to which it was applied. appeared that while so engaged Judgment of General Term, afplaintiff was struck by another car firming judgment on verdict for which was impelled by an engine plaintiff, affirmed. attached to it which was moved by the escape of steam through a defective valve into the cylinder, which defect had been known to defendant's superintendent for several months. The employee in charge of this engine also knew of this defect, and had left the engine stand- Ins. Co., applt. ing without using certain means which he knew of, and which would have prevented the escape of the steam. cur. FIRE INSURANCE. N. Y. COURT OF APPEALS. Hermann, respt. v.The Merchants' Decided June 1, 1880. A house thoroughly furnished, from which the owner has removed for a season intending to return again and resume possession, is not a vacant house within the meaning of a clause in a policy which provides that it shall be void if the premises become " vacant and unoccupied." To avoid such a policy the premises must not only be unoccupied but also vacant. to vacancy, occupancy, and use of the premises. a general condition as to increase of risk does not apply to cases thus specially noticed. Such a condition must be strictly construed against the underwriter. Isaac S. Newton, for applt. Scott Lord, Jr, for respt. Held, That plaintiff was entitled to recover; that as between plaintiff and defendant it was the duty of the latter to furnish its employees, Where a policy contains express conditions as for use in the prosecution of its business, good and suitable machinery, and to keep it in repair. 25 N. Y., 562; 49 id., 432; 53 id., 533; 59 id., 519. It was also its duty to furnish for the management of such machinery capable and trustworthy of fire insurance, which provided, servants. 5 N. Y., 492. But defendant, having failed in its duty to supply suitable machinery, was liable, although the employee in charge of the engine could have so managed it that the defects in it would have caused no harm. The case is not one for the application of the doctrine of 'equivalents. Affirming S. C., 8 W. Dig., 19. This was an action upon a policy among other things, that if the premises should become "vacant and unoccupied " the policy should be void. The premises consisted of a summer residence and certain personal property therein, belonging to the plaintiff. He lived in it during the summer and fall of 1876, and removed therefrom in November, intending to return in the May following. He left all the furniture The policy in suit also provided in the house, it being furnished that if the risk should be increased throughout, and left a person who "internally or externally" the inlived near by in charge of the house sured should give proper notice and its contents. The premises thereof in writing, and have the were destroyed by a fire in April, same entered on the policy, and 1877, which was probably of incendi- that any failure to comply with this condition should render the policy void. ary origin. George W. Parsons, for applt. Held, That as the policy con Held, That the words "vacant tained express conditions as to and unoccupied," as used in the vacancy and occupancy, and as to policy, must be taken in their the mode in which and purposes for ordinary sense, as commonly used which the house was to be used, it and understood; they need not be is not to be supposed that this taken in the sense in which they general condition was intended for may have been understood by any of the cases thus specially underwriters, as both parties to the noticed. contract were not underwriters supposed to be familiar with the meaning of such words when used in the business of fire insurance, and if the sense in which they were used is uncertain, as they are found in a contract prepared and executed by the insurer they should be construed most favorably to the insured. N. Y. 405; 59 id. 387. 32 As what is to be regarded in the business of insurance as an increase of risk is frequently a matter of much difficulty, about which even experts differ, such general language must be strictly construed against the underwriter. The words risk increased" either internally or externally" do not convey to the mind of the court an increase of risk by removal from the house, but an increase of risk by internal or external changes in the house itself or its exposure. A dwelling house is unoccupied when no one lives in it, but it is not then necessarily vacant. A house filled with furniture throughout cannot be said to be vacant. To avoid Judgment of General Term, the policy in suit the premises must affirming judgment on verdict for not only be unoccupied but also plaintiff, affirmed. vacant. A house thoroughly furnished, from which the owner has removed for a season, intending to return again and resume possession, is not in any proper sense a vacant house. Alston v. Ins. Co., 80 N. C., 326; N. A. F. Ins. Co. v. Granger, 63 Ill., 464, and Am. Irs. Co. v. Padfield, 78 id., 167, distinguished. Opinion by Earl, J. All concur. APPEAL. N. Y. COURT OF APPEALS. Van Gelder, applt, v. Van Gelder, respt. Decided June 1, 1880. A complaint in an action commenced in 1875 demanded judgment for $400, with interest contract recover more than he defrom the day before the action was commands in his complaint. menced. Judgment was rendered for defendant in 1877, which was affirmed on appeal in September, 1878. Held, That as the amount in controversy, with interest to September, 1878, was less than $500, an appeal would not lie to the Court of Appeals. See S. C., 7 W. Dig. 169. The complaint in this action demanded judgment for $400, with interest from May 4, 1875. The action was commenced May 5, 1875. Judgment was rendered for defendant, at Special Term, July 21, 1877, and was affirmed at General Term September 30, 1878. No special leave to appeal to this court was given. James B. Olney. for applt. Held, That the case was not one in which an appeal would lie to this court; that the amount in controversy, with interest to September 30, 1878, was less than $500; that interest accruing after the judgment could not be added to make the case appealable to this court. 67 N. Y., 199. The amount due at the commencement of the action, according to the claim in the complaint, is to govern. 75 N. Y., 156. Appeal dismissed. Opinion per curiam. All concur. CONSTRUCTION OF STATUTES. VILLAGE TRUSTEES. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. In re Livingston street, in the village of Rhinebeck. Decided May, 1880. The effect of the repeal of one act which amended another is to restore the latter statute in all respects as it stood before the amendatory act was passed. The grant to the trustees of the village of Rhinebeck of the powers of commissioners of highways is in no sense restrictive of the special powers granted by chap. 360, Act of 1867, §§ 24 and 25. Appeal from an order of the Special Term, on application of the trustees of the above named village, appointing commissioners to assess damages accruing to the appellant in the above matter, by the taking of lands and building owned and occupied as a residence by her, in said village, for the purposes of said street. The amount demanded in the complaint is made controlling by The trustees published the notice section 191 of the Code only in ac- required in such cases, under § 25 of tions not founded on contract for the Act of 1867, chap. 360, and in the reason that in actions ex con- pursuance thereof the claimant filed tractu the facts alleged in the com- her claim for damages with the clerk plaint may show that the plaintiff, of the village. The Special Term if successful, would not be in law entitled to recover as large a sum as he demands as damages. The distinction is not made on the theory that he may in an action on made an order appointing commissioners of assessment, and from such order this appeal is taken. Van Alstyne & Hevenor, for applt. |