before it is exercised and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, how ever inconsiderable, it is a burden on the operations of the government, and might be carried to an extent which would arrest them entirely. 2 Peters, 449. 2 Peters, 449. The exemption is not confined to the par value, but includes any premium there may be as well. The premium is not distinct from the bond, but is a part of it, inherent in it, and goes with it. This was a controversy submitted on agreed facts under § 1279 of the Code. Plaintiff's steamer stranded in a storm and was in danger of being wrecked. The Phoenix Insurance Co. had a $10,000 policy on her, the steamer being valued for the purpose of the insurance at $75,000, and which was by its terms to cover "all perils of the sea and navigation usually taken by marine underwriters, loss by fire exceptive, but no thirds are to be deducted in case of partial loss." The thirteen other insurance companies, who are also defendants herein, each had a similar policy on the vessel of $5,000. The several insurance companies were called together on Judgment of General Term, affirming order of Special Term dismissing writ of certiorari, reversed and assessment vacated. Opinion by Earl, J. All con- receipt of the news of the disaster cur. MARINE INSURANCE. N. Y. COURT OF APPEALS. The Providence & Stonington SS. Co., applt., v. The Phoenix Ins. Co. et al., respts. Decided Oct. 10, 1882. The owners of a vessel damaged by perils insured against may estimate the expense of repairing her, in order to determine whether it should be treated as a total loss; and for this purpose expenses of releasing her from peril, as getting her afloat preparatory to repairing, may be added to the expense of repairs. Where the policy contains an agreed valuation of the vessel less than its actual value, such valuation, in the absence of fraud, is in the nature of liquidated damages and is not open to inquiry or dispute after a loss occurs, but is conclusive between the parties in respect to all rights and obligations which arise upon the policy. Modifying S. C., 11 W. Dig., 174. by plaintiff's president, and by their representatives told him "to act as if the steamer was uninsured." Plaintiff's president instructed the captain of the Coast Wrecking Company, who was present at the meeting, "to use every effort to save the vessel." The vessel was saved and on October 19, 1877, reached New York and was docked for repairs. The insurance companies after examination offered to pay $46,000 to cover the expenses of repairs. This offer was accepted and receipted for on the policies as "being in full settlement of partial loss on steamer, &c." Subsequently a bill for $35, 000 was rendered by the Coast Wrecking Company for services. After consultations with defendants and with their assent plaintiff settled with the Coast Wrecking Company and paid it $17,500 in full and also paid $4,300 for other necessary expenditures. On December 15, 1877, a statement of "general average' was made, in which the contributory value of plaintiff's steamer was stated at $275,000, which was the fair value thereof. Plaintiff claimed that defendant should pay in addition to the $46,000 paid for repairs $21,840, which they called costs of saving the steamer. Defendants claimed that having paid $46,000 they were not liable for any further sum, and if liable to pay any proportion of the $21,840 it was only so much as the value of the steamer stated in the policies ($75,000) bore to the value stated in the general average adjustment. The court decided that defendants were liable to pay by way of contribution towards the $21,840 of expenses in the proportion of the value of the steamer as stated in the policies to the value as stated in the general average adjustment. William M. Erarts, for plff. William Allen Butler, for deft. Held, Error. The owners of a vessel damaged by perils insured against are at liberty to estimate the expense of repairing it in order to determine whether or not it. should be treated as a total loss, and for this purpose expenses of releasing her from her peril, as getting her afloat from the rock or from submergence in the sea, preparatory to repairing, may be added to the expenses of the repairs. 11 Pick., 90; Arnould on Insurance (Perkins' Ed., 1850), 1106. Also held, That as between these parties no inquiry is pertinent as to the actual value of the steamer, it having as to them been fixed by agreement for every purpose (fraud being out of the question); it must be taken as so fixed that the insured may be indemnified to that amount for all losses occasioned "by perils of the sea and navigation." The value so fixed and inserted in the policy is in the nature of liquidated damages, 3 Kent, 273, and is therefore not open to inquiry or dispute after a loss occurs, but is conclusive between the parties in respect to all rights and obligations which arise upon the policy. L. R., 5 Q. B., 244. Defendants are estopped from saying there was any value. in excess of the $75,000 agreed upon. Judgment of General Term modified so as to require each defendant to pay such proportion of $21,840 and interest as the sum insured by it bears to the total amount, $75,000, and as modified affirmed. Opinion by Danforth, J. All concur. ASSESSMENTS. N. Y. COURT OF APPEALS. In re petition of The Mutual Life Ins. Co. to vacate assessment. Decided Oct. 10, 1882. An ordinance of the Common Council regularly passed and within the scope of the authority conferred upon it by the Legislature is a law, within the meaning of 4, Chap. 226, Laws of 1871. By that act the Commissioner's power to fix a grade was confined to cases in which no lawful grade had been previously established. Where the property benefited is only assessed for work lawfully done and the unlawful portion of the expense is charged upon the │ city because in excess of one-half the valuation of the property benefited, the validity of the assessment is not affected by the fact that a portion of the expense was illegal. Affirming S. C., 14 W. Dig., 343. i modify its binding effect. The power of the commissioner to fix a grade was confined to cases in which no lawful grade had been already established. The details of this improvement show that it was 1,931 feet in length. All of this distance, except a space between First avenue and the East river, was regulated, curbed and guttered upon the lawful grade as fixed by the Common Council. Beyond First avenue towards the river the crown of the street was moved fifty-nine feet six inches further east, the change apparently beginning 197 feet east of First avenue; the total additional The assessment assailed in this proceeding was for regulating and grading 106th street from Third avenue to the East river, and it was claimed the work was done without authority, as the Commissioner of Public Works changed the established and lawful grade. The authority claimed is derived from 4 of Chapter 226 of Laws of 1871, which empowers the Com-rise at the new point of the crown missioner "to establish and fix the grades of the streets extending to the East river north of East Fourteenth street and east of First avenue, where the same have not heretofore been fixed and established by law." It was admitted that the grade of 106th street had been "fixed and established" in 1853 by an ordinance of the Common Council, but it is claimed that the act of 1871 must be con strued to except from the authori- Charles E. Miller, for applt. An ordinance of the Common Council regularly passed and within the scope of the authority conferred upon it by the Legislature is a law. That it is local and not general in its operation does not alter its inherent character or being but seven inches, and at Avenue A, on the bank of the river, but one foot. It was shown that this change required an excess of 1,000 cubic yards of filling at a cost of less than $1,000 and that the difference in the cost of curb and gutter and flagging on the changed grade was trifling and unimportant. The whole expense of the improvement was $28,387.60. Of this $27,378.18 was assessed on the property benefited and the balance, $1,009.42, was charged upon the city because in excess of one-half the valuation of the property benefited. Held, That whether the work of filling in the small section of the street where the grade was changed was done lawfully or unlawfully it did not alter the amount of the assessment upon adjoining property; as the entire increased expense resulting from the unlawful work came upon the city, there ant supposed it was a good note, given for lumber sold to the maker thereof by one of the endorsers and so asserted; that both parties were more or less acquainted with the maker and endorsers of the note and believed them to be financially responsible. It is further found that the representations made by defendant to plaintiff of ownership and of the amount he was to pay therefor were untrue to defendant's knowledge, but that plaintiff was not financially injured thereby; that the statement that the note was given for lumber was false in fact, but was made by defendant without fraud or fraudulent intent and believing it to be William Gleason, applt., v. Cal- true. vin H. Bell, respt. Decided Sept., 1882. Where a person sells a promissory note at The referee finds that the note did not cost the defendant the amount he told plaintiff it cost him; that defendant was not the owner when he sold the one-half to plaintiff, as he falsely and knowingly asserted; that the note was not a valid business note at the time of such sale, but that defend The action of the plaintiff is in effect to recover money paid to the defendant upon a rescission of a contract for the purchase of onehalf of the note upon the ground of the fraud of defendant and also to recover such money upon the express and implied warranties of the defendant as to the character of the paper sold by him to the plaintiff. Wm. & J. B. Gleason, for applt. Held, Error; that there was an express representation by defendant that the note was business paper while in fact it was an accommodation note. This brings the case within the principle established in Webb v. Odell, 49 N. Y., 583. The learned Chief Judge there says, "It is not material whether the defendant owned the notes or not * * * they sold them as their own and as business paper." The same prin- [ Appeal from a judgment entered ciple is applied to the case of a upon the verdict of a jury in favor forged note, both parties acting in of the plaintiff of $950 damages. good faith. Whitney v. Bank of Potsdam, 45 N. Y., 303. In Fake v. Smith, 7 Abb., N. S., 106, it is held that in such cases there is an implied warranty by the defendant that there is no legal defense to an action upon the note. N. Y. SUPREME COURT. GENERAL Decided Sept., 1882. ex Defendant's employee, while drawing an Action to recover damages for personal injuries received by plaintiff by being run into and hit by an express truck in the hands of an employee of the defendant, and the ground of action was negli gence. The evidence shows that plaintiff was at the Erie depot, in Owego, awaiting the departure of a train for Waverly, where he resided, and for which passage he had a ticket. The train having arrived, he, being upon the platform, stopped before getting upon the train to speak to a friend, and in a moment thereafter was run into and knocked down by the express The evidence truck mentioned. was conflicting as to whether any warning of the approach of the truck was given, and as to whether the truck was being pushed rapidly or slowly. A. G. Allen, for respt. Tracy, Catlin & Hudson, for applt. Held, That upon neither point do we think the principles applicable to injuries caused by locomotives and railroad cars should control this case. The elements and sources of danger are very different. Held further, That the giving of warning is not the only duty of him who draws the truck. He must move it carefully and prudently upon the platform, so as not needlessly to expose any one to danger, and he should also be constantly upon the alert not to |