the policy sued on. Those provisions were as follows: "If the assured shall have any other insurance on the property hereby insured, or any part thereof, without the consent of this company, written hereon, this policy shall be void." Also, And that such compromise could not be urged by the defendant as an estoppel. Judgment and order affirmed. "In case of any other insurance TAXATION. ASSESSOR'S AFupon the property hereby insured, FIDAVIT. SUPERVISORS. TERM. THIRD DEPT. whether valid or not, the insured N. Y. SUPREME COURT. GENERAL shall be entitled to receive of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount so insured thereon." The German Insurance Company had issued a prior policy, covering the property, which policy contained this provision: "If the assured shall have, or shall hereafter make, any other contract of insurance, whether valid or not, on the property hereby insured, or any part thereof, without the consent of this company written hereon," then and in such case "this policy shall become void." Decided September, 1880. An affidavit made by assessors, under the statute, and attached to a town assessment roll, stated that they had estimated the value of the real property on the roll at sums which they had decided to be its "assessed value," instead of its "full and true" value, as required by statute; it also omitted the statutory words "and at which they would appraise the same in payment of a just debt from a solvent debtor." Finally, the affidavit stated that the assessors had performed their duties according to their "best knowledge instead of "best judgment." Held, that the affidavit was fatally defective, conferred no jurisdiction, and that defendant, a supervisor, was personally liable for a tax collected by a warrant based on the assessment roll. This is a controversy submitted without action, under secs. 1279-81 of the New Code. The plaintiffs are bankers, and claim that the defendant, a town supervisor, is liable in G. A. Clement, for applt. Parker & Countryman, for respt. Held, that according to the provisions of the policy issued by the German American Insurance Company, that policy became and was void, by its own terms, on the issuance of the policy in suit. Hence, damages for a sum collected of them there was not a double insurance by a collector to whom the superupon the insured property. visors of the county had issued a warrant commanding him to levy of plaintiffs the tax in question. The defect alleged by plaintiffs is that the affidavit made by the assessors to the town assessment roll in 1879 is insufficient, and hence that the supervisors had no authority to levy the tax, and that there was nothing That a compromise of the claim made upon the former policy, effected after such policy had become void, and payment of a part of the claim in satisfaction of it, did not give vitality to such policy; it being as clearly void after the compromise as before. to protect them in issuing their war DURESS. EVIDENCE. raut. The affidavit states that the N. Y. SUPREME COURT. GENERAL assessors have estimated the value Wm. N. Noble, for plff. TERM. THIRD DEPT. Burnham, respt., v. Douglas, applt. Decided September, 1880. The action was to set aside a chattel mortgage, given by a debtor's wife, on the ground of duress. The duress consisted, in part, of threats by defendant to have debtor arrested for fraud, and these resulted in the wife's giving the mortgage. Held, That defendant was entitled to prove on the trial of this action facts tending to show that the debtor had been guilty of fraud, and that defendant had a right to have him arrested, as threatened. The action was brought by plaintiff, a married woman, to set aside a chattel mortgage given by her to defendant Douglas, upon the ground of duress. It appeared that, theretofore, defendant obtained judgment against Joseph Burnham, plaintiff's husband. Douglas then took supplementary proceedings, and upon Held, that the affidavit was fatally that examination, by threats of defective and that defendant was sending the husband to state's liable. 7 N. Y., 517. To say that prison for perjury and to arrest him they had estimated the value of the for fraud, Douglas, by his attorney, real estate at the sums which they induced plaintiff. who was present, had decided to be the assessed to give the mortgage sought to be value is a plain evasion of the sta- set aside here. Upon this trial detute and means little or nothing. fendant offered to show that the prop To omit the clause," and at which Douglas judgment was recovered for they would appraise, &c.," leaves groceries used by plaintiff and the out a very important part of the family in general; that the mortstatutory affidavit. And the re-gaged chattels were a part of maining omission and alteration erty included in a bill of sale from carry out the violation of the statute. the husband to the wife, and that Judgment rendered on the sub- this bill of sale was executed to premission for the amount claimed by vent defendant from collecting his the plaintiff, with costs. judgment. Defendant insisted that Opinion by Learned, P.J.; Bockes this evidence was competent because and Follett, JJ., concur. it tended to establish defendant's right to have the husband arrested. All this evidence was excluded. Beckwith, Barnard & Wheeler, for applt. Geo. L. Clark, for respt. Held, error; the language used by Beckwith, the attorney for Doug-1857, sec. 30, the right to prosecute By chapter 628 of the Laws of las, implied that the threat of imfor penalties is given to any person, prisonment was for alleged fraud in in case the overseers, &c., shall negthe transfer of property by Burnham to his wife, as well as for alleged plaint that a provision of the act lect to do so for ten days after comperjury. If Burnham had, in fact, (the liquor law) has been violated, executed a bill of sale of his prop- "accompanied with reasonable proof erty to his wife, for the purpose of preventing the defendant from col- of the same." In this case, the comlecting his judgment, and if the chat- plaint presented to the overseer tel mortgage in question was given allegations were general, stating was on information and belief; its by the wife upon the same property, that Giles had sold liquors, during these facts would go far to explain five months, to divers persons. This and perhaps justify the threats that Beckwith made. Certainly these threats would affect the question how far plaintiff was influenced by the alleged threats, and how far by a knowledge that in mortgaging the property she was only securing Burnham's debt on property which justly belonged to him, and which had been transferred to her in fraud of creditors. Judgment reversed, new trial granted, costs to abide the event. Opinion by Learned, P. J.; Martin, J., concurs. EXCISE. PENALTIES. son, in case the overseer, &c., neglect to do was a motion for the reargument of (who had sued in the name of the a motion upon which one Brown overseer) had been charged with continued the action as brought by Giles' costs, the overseer having disBrown without authority, because of the insufficiency of the above. complaint. L. M. Conklin, for applt. Brown. Keeler & Palmer, for respt. Held, That the complaint was insufficient, and imposed no obligation on the overseer to prosecute. It did not identify the kind of liquor, or where it had been drunk. The plain meaning is, that the complaint shall be so definite, and shall be accompanied with such proof as reasonably to satisfy the overseer; or, if he is not satisfied, to enable him to investigate and decide whether or not there had been a violation of the statute. There being no neglect upon the part of the overseer, Brown had no right of action, and was properly charged with the costs of Giles. Motion for reargument denied, with $10 costs against Brown. Opinion by Learned, P. J,; Bockes, J., concurs. gence imputable to defendant in using a defective flange alone. As the flaw was latent and indiscoverable by any known test, the defendant cannot be held liable because he did not discover it. This action was brought for damages for injuries received by plaintiff through an accident caused by the derailment of defendant's train. NEGLIGENCE. LATENT DE- It was referred by consent to a FECT. referee, who found in his report N. Y. SUPREME COURT. GENERAL herein, that the breaking of the TERM. SECOND DEPT. John H. Brown, respt., v. Thomas R. Sharpe, Receiver of the L. I. R. R. Co., applt. Decided September, 1880. In an action brought for damages for an in and flange of the outside forward truck wheel was the immediate cause of the derailment of the train whereby the plaintiff was injured, and that such flange broke because at and near its base it had been so much worn away and weakened sharpened that it had not strength jury suffered by plaintiff by the derailment of defendant's train, the referee did not find of metal enough to resist the lateral any negligent act on defendant's part in the pressure against the outside steel construction of the curve of the track, or in rail of the curve resulting from the the speed of the locomotive running around sharpness of the curve when the flange broke and the speed with which the locomotive was going when the flange broke. it, but rested his decision, which was in favor of the plaintiff, on the finding, "that in view of the sharpness of the curve, and of the worn and weakened condition of the flange which broke, the speed with which the locomotive was going around the curve when the flange broke was dangerous and negligent." Held, The question then was, was the wheel so much worn as to render its use in the manner and under the circumstances in which it was used at the time of the accident consistent with the care due from the defendant. The presumption raised by the breaking of the flange is somewhat repelled by proof of a flaw in the flange at the point of fracture. The other facts appear in the opinion. Hinsdale & Sprague, for applt. Held, Assuming the correctness of the referee's finding, supra, he erred in refusing to give any effect to the evidence respecting the flaw in the wheel at the point of fracture. Therefore, in this view, to sustain a recovery it This finding contains three elements: should be found as a fact that notwithstanding 1, the wear of the wheel; 2, the the flaw the wear of the wheel which render- smallness of the radius of the curve; ed the use of it imprudent was an efficient cause of the accident, and that it would not 3, the speed of the locomotive. The have happened without the operation there- referee did not find that the construction of such a curve or the running around it at the rate of speed proved were negligent acts, of. While the existence of the flaw furnished adequate cause of the accident, and in view of the evidence seems to have been the chief cause ofit, yet the referee has not found any negli- and we think to have thus found would have done violence to the istence of the flaw furnished adetestimony. The referee does not quate cause of the accident, and in here find any negligence imputable view of the evidence this flaw seems to the defendant, but rests his de- to have been the chief cause of the cision on the finding which reads accident. But the referee has not "that in view of the sharpness of found that the defendant was neglithe curve and of the worn and gent in using a defective flaw alone. weakened condition of the flange As the flaw was latent and indiswhich broke, the speed with which coverable by any known test, the the locomotive was going around the defendant cannot be held liable becurve when the flange broke was cause he did not discover it. 58 N. dangerous and negligent." Y., 138. Judgment reversed; order of reference vacated, and new trial abide the Opinion by Gilbert, J. CERTIORARI TAXATION. N. Y. COURT OF APPEALS. The People ex rel. Weekes, applt., v. The Board of Supervisors of Queens Co., respt. Decided Oct. 5, 1880. The question then is, was the wheel so much worn as to render its use in the manner and under the ordered, with costs to circumstances in which it was used event. at the time of the accident consistent with the care incumbent on the defendant. On examination of the testimony it does not appear that the defendant was guilty of negligence in these respects. The presumption the law raised from the fact that the flange broke is somewhat repelled by proof of the existence of a flaw in the flange at the point of fracture. To sustain a recovery in such a case it should be found as fact that notwithstanding the flaw the wear of the wheel to a degree which rendered the further use of it imprudent was an efficient cause of the accident, and that it would not have happened without the operation thereof. 77 N. Y., 83. The relator brought a certiorari In this case the referee has in effect to set aside certain items of tax found that the use of a wheel so levy of Queens County for macadmuch worn, even if perfectly sound, amizing a road. It appeared by was an act of negligence. The the return to the certiorari that evidence does not warrant this con- prior to the issuing of the writ the clusion. Board of Supervisors had issued its Therefore, the defendant's negli- warrant to the tax collector of the gence, if any exist, must be at- town of Flushing for the collection tributed wholly or in part to some of the annual tax, levied by the other misconduct of his. The ex- board, which included the items On certiorari, to set aside certain items of a tax levy, it appeared that before the order to show cause was issued the Board of Supervisors had issued its warrant to the collector. Held, That the writ should have been quashed; that the jurisdiction of the supervisors, and their power to change the tax roll, terminated with the levy of the tax and the delivery of the tax roll and warrant to the collector. |