239. That the policy is not assign- thereof defendant agreed to make able. 26 N. Y., 15. That the guar- the payment specified in the agreeantee by the wife of the validity of ment. Also, that the leases were such an assignment must partake of irregular and defective, as were the the fundamental objection to the as- proceedings taken by the Mayor to signment itself. If the guarantee make them. The findings set out a be valid, the law would not declare copy of the agreement, and contain the assignment invalid. A promise a conclusion of law that, by the to make the assignment valid and terms of the contract, plaintiffs were sufficient has not as much strength bound to grant, convey and assign as actually assigning. to defendant not only the leases, Opinion by Sedgwick, J.; Freed- but with them an estate in land, man, J., concurred. SPECIFIC PERFORMANCE. N. Y. COURT OF APPEALS. viz. in the premises described, to be held by defendant and his assigns from May 1, 1871, during the terms mentioned in said leases. The agreement, in fact, contained language which sustained Bensel et al., exrs., applts., v. Gray, the finding and conclusion of respt. Decided April 6, 1880. Plaintiffs and defendant entered into a contract, the trial court. It was contended that this resulted from the inadvertent use of an inappropriate blank, and that the agreement to transfer the terms is contained in the printed part only, and should for be disregarded. There were no allegations in the by which plaintiffs were to sell defendant two tax lenses "and all and singular the premises therein mentioned the terms of said leases." It appeared that the leases were irregular and defective. Held, That the agreement being to transfer not only the leases, but the land and buildings, an action for specific performance could not be maintained, as plaintiffs could not transfer a good title for the terms thereby granted. complaint of any mistake in the agreement, and no case was made for a reformation of it. The making of it in the form in which it appears in the case was found as a fact. This finding was not excepted to. The printed part of the agreement is not inconsistent with the written part. This was an action to compel the specific performance of a contract for the purchase of two tax leases, John E. Parsons, for applts. claimed to have been made by the Abram Wakeman, for respt. corporation of the city of New York. Held, That the agreement, as The trial court found that the agree- found, being not merely to transfer ment was that plaintiffs should the leases, but the land and build- • transfer the two leases described ings for the terms of the leases, this therein, and all and singular the case is distinguished from Boyd v. premises therein mentioned, with Schlesinger, 59 N. Y., 301; and the the appurtenances, for the terms of general rule that the specific persaid leases, and in consideration | formance of a contract for the con . veyance of land or an estate will not be decreed against the vendee, unless the vendor can give a good title, is applicable, and it having been found that the leases were invalid, and that, consequently, plaintiffs could not transfer a good title for the terms thereby granted, they could not maintain this action. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Rapallo, J. All con cur. PUBLICATION. AMENDMENT. N. Y. COURT OF APPEALS. Mojarrietta et al., respts., v. Saenz et al., applts. Decided April 6, 1880. An order for service of summons by publication, which appears, from the body thereof, to have been made by a judge, is not void by reason of its having a caption and a direction to enter; and there is no objection to the court amending it by striking out such superfluous portions. N. Y. COURT OF APPEALS. The People ex rel. Hetzel, applt., v. Hall, respt. Decided Feb. 24, 1880. The clause in the New York charter which pro- An order for the service of the summons in the above entitled action by publication was made. It appeared from the body of the order This was a proceeding by quo that it was made by a judge. The warranto to ascertain by what right order recited that the application the defendant exercises and claims was made to him, and the necessary to hold the office of alderman of the proof made to his satisfaction. It city of New York. Defendant rests had a caption as if made at Special his right upon the fact that the Term, and a direction to enter. Board of Aldermen of that city havAfter the order had been acted ing acquired jurisdiction so to do, upon, the court, on motion, amended it by striking out the superfluous portions. Edward Patterson, for applts. had duly adjudged that he was duly elected a member thereof. The charter of the city enacts that the Board of Aldermen "shall be the judge of the elections, returns, and in the charter that, either in terms qualifications of its own members." or by necessary implication, exLaws of 1873, ch. 335, § 6. L. C. Waehner, for applt. presses a legislative purpose to take from the Supreme Court its jurisdiction, and to make the power of the board exclusive, and its judgment final and conclusive; it cannot be held that the jurisdiction of the Supreme Court was taken away. 1 222. legislative purview the words giving power would, without some restrictive phrase, have conferred sole, exclusive, and final jurisdiction. The most that can be implied from it is that the law-maker apprehended that the judgment of the board might be considered final, so far as that proceeding had by it was concerned, unless it was declared otherwise. Held, That that clause gives power to a judge, but did not give exclusive power in the first instance; it did not oust the courts of the State of jurisdiction, or shut them out Coke, 2d Inst., 199, cap. 204; 2 from originating an inquiry as to Burr. 1040; 3 Hill, 52; 23 Wend., the right to that office; that although the clause in the charter is The phrase "subject, however, in the same form of words as the to the review of any court of comclauses in the constitutions of the petent jurisdiction," found in the United States and this State, con- clause in the charter, is not to be ferring the sole and exclusive power construed as implying that in the upon the Houses of Congress and the Houses of the State Legislature to judge as to the elections, &c., of their members, U. S. Const., art. 1, § 5, subd. 1; Const. of N. Y., art. 3, 10, force is added to the words of the constitutions by a consideration of the occasions and the instruments in which they are found, and of the character of the political bodies to which they are applied, and a greater weight is given to It appeared that the relator had them than they will bear in a legis- began a direct proceeding before lative act passed in view of consti- the Board of Aldermen, and that it tutional provisions creating courts was adjudged therein that he was of justice, and clothing them with not entitled to the office, and that general jurisdiction. The power the defendant was as against him thus given to the houses of the entitled to it. This adjudication Legislature is a judicial power, and has never been reversed. each house acts in a judicial capa- Held, That although the Supreme city when it exerts it. The council Court was not ousted of jurisdiction of a city is the creature of the Legis- by the clause in the charter, it did lature, and has not the inherent give judicial power in the matter to powers of one of the constitutional the Board of Aldermen. 3 Gray, depositaries of authority. It is a 472. The adjudication of the rebody inferior to the judiciary, and, as a general rule, answerable to it. There being no word in the clause lator's proceeding by the board was res adjudicata for all that were parties to it. The relator was debarred thereby from further pursuit in the case, McCord, S. C., 52; that the people not having been a party to it was not barred by it, and might still inquire by what right defendant claims the office. This was an action on a policy of insurance issued by defendant upon the life of M. The policy provided that part of the premiums should be paid in notes, and in case of a failure to pay any note when due the policy should become void. The pre Judgment of General Term, dismissing complaint, affirmed as to miums were made payable at the relator, and reversed as to the company's office, in Boston, Mass., people. and no payment elsewhere was alOpinion by Folger, J. All concur, lowed except with a special certifiexcept Church, Ch. J. dissenting cate authorizing the same, signed by from reversal, and agreeing as to the secretary, stating the specific affirmance. LIFE INSURANCE. FORFEITURE. N. Y. COURT OF APPEALS. payment for which it was issued, and attached to which must be the receipt for which it was given. The policy was obtained through R., who was agent in New York city for several insurance compan How, respt., v. The Union Mutual ies, but not for the defendant. He Life Ins. Co., applt. Decided Feb. 3, 1880. One M. obtained a policy in defendant's company from one R., who was not an agent of defendant, which provided that it should be void in case of non-payment of any note when due. He paid half the first premium by a note, which provided that in case it was not paid the policy should be void. He also gave a note to R. for more than the annual premium, on the understanding that he should take care of the premium note. Be fore the first note came due the policy was assigned to plaintiff, but the note was not paid. On application by plaintiff to pay the second annual premium, defendant's agent corresponded with defendant, which notified the agent of the non-payment of the note and claimed a forfeiture. M. had died during the time of this correspondence. Held, That the policy was forfeited; that no waiver was shown, and that none could be inferred from a retention of the note by defendant; that R. was not an agent or authorized to waive or modify any condition; that plaintiff stood in the place of M. and took the policy subject to all its conditions; that she had no right to rely on the statement in the policy that the first annual premium was paid. an had obtained several policies in defendant's company from its general agent. M. paid the first nual premium in the following manner, $176 in cash and a premium note for $176, payable six months after date to defendant's order, which provided that the policy should become void if this note was not paid at maturity; another note for $234, payable in twelve months, was also given. Before the first note became due M., with defendant's consent, assigned the policy to plaintiff, who was his house-keeper, in consideration of her services, "subject to all the provisions and conditions of the policy." The policy contained a recital that the first premium had been paid. Neither of the notes given were paid. The note for $176 fell due in April, 1873. It was left in the hands of defendant's agents in New York. On October 9, 1873, about the time the second annual premium became due, the plaintiff to the defendant his relation was took the policy to the office of de- that of an insurance broker, and fendant's agent at Philadelphia, and when the policy and the premium asked to have it changed, so that notes were delivered, his authority she could pay the premium quart- as to defendant was at end. He erly instead of annually. The agent was not authorized to waive or forwarded the policy to defendant's modify any condition in the policy Boston office, on the same day, but or in the notes. Also held, That plaintiff had no right to rely upon the statement in the policy that the first annual premium had been paid. did not hear from it until about Also held, That plaintiff by the asNovember 1, M. having died Oc-signment tock simply the place of tober 26. Plaintiff, between Octo- M. as the owner of the policy, and ber 9 and 26 had called several took it subject to all the conditions. times at the agent's office to pay the annual premium which fell due October 5. The agent informed her that he was not authorized to receive the money, but would send for Also held, That a waiver cannot the renewal receipts. He knew noth-be inferred from the retention of the ing about the unpaid note and six months' note by defendant. 63 plaintiff said nothing about it. The N. Y., 160. agent heard from defendant at about the time of M's death, and was then informed of the unpaid note, Order of General Term, reversing and that defendant claimed the judgment for defendant on report of policy was forfeited. He informed referee, reversed, and judgment on plaintiff of the forfeiture claimed report of referee affirmed. Prentice from Knick. L. Ins. Co., 77 N. Y., 483, distinguished. APPEAL. about November 1. It appeared Opinion by Earl, J. All conthat R. at the time he obtained the cur, except Danforth, J., dissentthe policy, received from M. a note ing. for more than enough to pay the annual premium, which R. had discounted. Plaintiff claimed that R. was to take care of the six months' note when it fell due. It did not appear that any of the proceeds of the note R. had discounted were ever received by the defendant. Merritt E. Sawyer, for applts. B. F. Mudgett, for respt. Held, That the policy was forfeited both as to the insured and his assignee; that no waiver of the forfeiture was shown on the part of the defendant; that R. was in no proper sense defendant's agent; as N. Y. COURT OF APPEALS. Decided April 13, 1880. An order of General Term reversing a judg- On an appeal from a judgment of |