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. 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 238. security, the property of the Fish- Also held, That a counter-claim kill Bank, and restored them to was not allowable. plaintiff. In the same month B., as Judgment of General Term, afcashier, and in the name of the firming judgment for plaintiff, afFishkill Bank, and on its account, firmed. returned the bonds to said bank

Opinion by Danforth, J. All ing firm, taking back the securities concur. which he had put in their place. Further advances were made by that firm to the Fishkill Bank, and

WATER-COURSES. the bonds were subsequently sold, N. Y. COURT OF APPEALS. pursuant to the conditions of the

McCormick et al., respts., v. Horan, pledge, and the proceeds placed to the credit of the Fishkill Bank.

applt. John Thompson and Homer A. Nel- Decided June 1, 1880. son, for applts.

The right of an owner of lands through which Milton A. Fowler and William S.

A water-course runs to have the same kept Eno, for respt.

open, and to discharge therein the surface Held, That the facts authorized water, is not limited to the drainage and dis

charge of surface water into the stream in the a finding of a conversion of the

same precise manner as when the land was bonds by the Fishkill Bank.

unimproved and uncultivated. As a general rule, a principal is such an owner may change and control the liable, civiliter, for a wrong of the

natural flow of the surface water, and by

ditches or otherwise accelerate the flow or agent, committed in the course of

increase the volume of water, and if he does his employment, and for the benefit

so in the reasonable use of his premises, and of the principal, and this, although does not discharge surface water into the no express command or privity is stream in quantities beyond its natural caproven. L. R., 2 Exch., 259; L. R., pacity, to the damage of the other owners,

he exercises only a legal right. 5 P. C. Apps., 394; Strobh Ch., 263; 34 N. Y., 30; 72 id., 286. This action was brought to re

Also 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 there in 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 lauds 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 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 sufficieut 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. Dəfendant, 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.

Judgment of General Term, W. F. Cogswell, for applt. affirming judgment for plaintiffs, afS. E. Filkins, for respt.

firmed. Held, That plaintiffs were entitled Opinion by Andrews, J. All conto the relief demanded, and defend- cur, except Danforth, J., of counsel, ant's act under the circumstances not voting. was unlawful.

The right to the use of a water- MASTER AND SERVANT. NEGcourse for the discharge of surface

LIGENCE or other waters exists only in respect of waters of which the water

N. Y. COURT OF APPEALS. course is the natural outlet, and Cone, respt., v. The D., L. & W. does not justify the diversion and RR. Co., applt. turning of the water of one stream

Decided June 1, 1880. into another not its natural channel. The right of an owner of lands The negligence of a servant in using imperfect

machinery will not excuse his principal from through which a water-course runs

liability to a co-employee for an injury which to have the same kept open and to could not have happened if the machinery

had been suited to the use to which it was The negligence of a servant in applied.

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 Opinion by Danforth, J. All conthe escape of steam through a de- cur. fective valve into the cylinder, which defect had been known to defend

FIRE INSURANCE. ant's superintendent for several months. The employee in charge

N. Y. COURT OF APPEALS. of this engine also knew of this de- Hermann, respt. v.The Merchants' fect, and had left the engine stand- Ins. Co., applt. ing without using certain means Decided June 1, 1880. which he knew of, and which would

A house thoroughly furnished, from which the have prevented the escape of the

owner has removed for a season intending to steam.

return again and resume possession, is not a Isaac S. Newton, for applt.

vacant house within the meaning of a clause Scott Lord, Jr, for respt.

in a policy which provides that it shall be

void if the premises become " vacant and unHeld, That plaintiff was entitled

occupied.” To avoid such a policy the to recover; that as between plain

premises must not only be unoccupied but tiff and defendant it was the duty of also vacant. the latter to furnish its employees, Where a policy contains express conditions as

to vacancy, occupancy, and use of the for use in the prosecution of its bus

premises. a general condition as to increase iness, good and suitable machinery, of risk does not apply to cases thus specially and to keep it in repair. 25 N. Y., noticed. Such a condition must be strictly 562; 49 id., 432; 53 id., 533; 59 id., construed against the underwriter. 519. It was also its duty to furnish Affirming S. C., 8 W. Dig., 19. for the management of such ma

This was an action upon a policy chinery capable and trustworthy of fire insurance, which provided, servants. 5 N. Y., 492. But defend- among other things, that if the ant, having failed in its duty to sup- premises should become “ vacant ply suitable machinery, was liable, and unoccupied ” the policy should although the employee in charge of be void. The premises consisted of the engine could have so managed a summer residence and certain it that the defects in it would have personal property therein, belonging caused no harm.

to the plaintiff

. He lived in it during The case is not one for the appli- the summer and fall of 1876, and recation of the doctrine of equiva- moved therefrom in November, inlents.

tending 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 ary origin.

condition should render the policy George W. Parsons, for applt. void. N. B. Hoxie, for respt.

Held, That as the policy conHeld, 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 sup- As what is to be regarded in posed to be familiar with the meaning the business of insurance as an inof such words when used in the crease of risk is frequently a matter business of fire insurance, and if of much difficulty, about which even the sense in which they were used experts differ, such general language is uncertain, as they are found in a must be strictly construed against contract prepared and executed by the underwriter. the insurer they should be construed The words risk increased “ either most favorably to the insured. 32 internally or externally” do not N. Y. 405; 59 id. 387.

convey to the mind of the court an A dwelling house is unoccupied increase of risk by removal from the when no one lives in it, but it is not house, but an increase of risk by then necessarily vacant. A house internal or external changes in the filled with furniture throughout can- house itself or its exposure. not 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, afirmed. vacant.

Opinion by Earl, J. All concur. A house thoroughly furnished, from which the owner has removed for a season, intending to return

APPEAL. again and resume possession, is not

N. Y. COURT OF APPEALS. in any proper sense a vacant house.

Van Gelder, applt, v. Van Gelder, Alston v. Ins. Co., 80 N. C., 326; N. A. F. Ins. Co. v. (tranger, 63 Ill.,

respt. 464, and Am. Irs. Co. v. Padfield, Decided June 1, 1880. 73 id., 167, distinguished.

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 ap

Appeal dismissed. peal in September, 1878. Held, That as the Opinion per curiam. All concur. amount in controversy, with interest to September, 1878, was less than $500, an appeal would not lie to the Court of Appeals.


UTES. VILLAGE TRUSThe complaint in this action de

TEES. manded judgment for $400, with in

N. Y. SUPREME COURT. GENERAL terest from May 4, 1875. The ac

TERM. SECOND DEPT. tion was commenced May 5, 1875. Judgment was rendered for defend

In re Livingston street, in the vilant, at Special Term, July 21, 1877, lage of Rbinebeck. and was affirmed at General Term September 30, 1878. No special

Decided May, 1880. leave to appeal to this court was The effect of the repeal of one act which given.

amended another is to restore the latter

statute in all respects as it stood before the James B. Olney. for applt.

amendatory act was passed. James H. Van Gelder, for respt.

The grant to the trustees of the village of

Rhinebeck of the powers of commissioners Held, That the case was not one of highways is in no sense restrictive of the in which an appeal would lie to this

special powers granted by chap. 360, Act of

1867, SS 24 and 25. court; that the amount in controversy, with interest to September 30, Appeal from an order of the Spec1878, was less than $500; that inter- ial Term, on application of the trusest accruing after the judgment could tees of the above named village, not be added to make the case ap- appointing commissioners to assess pealable to this court. 67 N. Y., 199. damages accruing to the appellant The amount due at the commence in the above matter, by the taking of ment of the action, according to the lands and building owned and occuclaim in the complaint, is to govern. pied as a residence by her, in said 75 N. Y., 156.

village, for the purposes of said The amount demanded in the street. 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 founde, 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 made an order appointing commisentitled to recover as large a sum sioners of assessment, and from such as he demands as damages. The order this appeal is taken. distinction is not made on the Van Alstyne & Hevenor, for applt. theory that he may in an action on A. Wager, for respt.

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