That is the situation here. Long before this | by-laws, rules, and regulations of the society, action was commenced Burnside had been and of the conditions printed hereon, to nine discharged from his debt; the bonds had dollars, weekly indemnity, not exceeding passed into the possession and ownership of three months; or if said member shall have defendant under parol agreement; their in- become permanently and totally disabled by terest had been collected and appropriated by accident for life, i. e., so as to preclude the the owner in part before the death of Burn- possibility of ever following any vocation, or side; the bonds had been wholly paid; and in the event of death, and upon satisfactory the debtor's representatives had accepted the proofs thereof, the membership entitles Peter surplus. The whole contract, in every de- O'Brien, heirs or assigns, within ninety days tail, and on both sides, had been 'fully exe- after satisfactory proofs have been furnished cuted, and all its purposes accomplished. To to the officers of the society at the home office, such a case the statute has no application. to all of the amount realized from one assessWithout, therefore, passing upon the ques-ment, not exceeding $2,000, payable at the tions raised upon the construction of Mrs. home office of the society in New York: proBurnside's will, we are of opinion that the vided, said member continues to observe and judgment was right and should be affirmed, comply with the conditions, requirements, with costs. All concur.

and stipulations above referred to, and to duly

pay the semi-annual dues and assessments of (117 N. Y. 310)

said society during membership; otherwise O'BRIEN 0. HOME BEN. Soc. 1 the membership, with all moneys paid to the (Court of Appeals of New York. Nov. 26, 1889.) society, and all claims against the same in INSURANCE – APPLICATION - ERRORS OF AGENThis behalf, shall be forfeited, and this certifiMUTUAL BENEFIT-REFUSAL TO MAKE ASSESS-cate shall be null and void, without any no

tice to said member, or any action thereon be1. Where an applicant for life insurance gives ing taken by this society. Given under the true answers to the questions pụt to him as the seal of the society, at New York, [L. s.] this basis of insurance, but an authorized agent of the insurance company inserts in the application false twenty-five of April, 1884.” answers, the company, and not the insured, is re The application was taken from O'Brien sponsible for such falsity, and it is no defense to by an agent of the defendant, and it contains an action on the policy.

2. A benefit society, which by its certificate of the answers to various questions, some of membership is bound to pay upon the death of a which are as follows: “(1) Are you now in member such sum as may be realized by an assess- good health, and free from any disorder, inceeding a certain amount, is liable to an action at firmity, or weakness? Answer. Yes.

(2) law for the damages sustained by a beneficiary by Have you ever had any of the following disreason of its breach of contract in refusing to levy eases? If so, state particulars and separate such assessment.

answer to each question. [To all of which Appeal from supreme court, general term, he answered, •No. Among the diseases third department.

enumerated was rheumatism.'] (3) What . This action was brought by the adminis- sickness, disease, or injury have you ever trator of Peter O'Brien, deceased, to recover

had? A. None. (4) When were you atupon a certificate of membership issued to tended by a physician last, and for what comhim upon his application by the defendant, plaint? A. None. (5) Name and residence as follows: “This is to certify that Peter of your visual medical attendant? A. None." O'Brien, of 15 Fayette St., city of Albany, The application also contained the following: state of New York, has paid the sum of “I further declare and agree that the statetwelve dollars, being the amount required on ments and representations contained in the application for membership, and is therefore foregoing application and declaration, togethaccepted as a member of the Home Benefit er with those made to the medical examiner, Life and Accident Society of New York, in shall be the basis of the contract between me division B, subject to the conditions and re- and the said society; that I hereby warrant quirements of the amended by-laws, rules, the same. to be full, complete, and true, and regulations of the society, and stipula- whether written by my own hand or not; and tions contained in the application for mem- that if the same, or any of them, are in any bership, and also to the conditions printed respect untrue, the certificate which may be hereon. The membership entitles Peter issued hereon shall be null and void and of O'Brien, after the presentation of satisfac- no effect, and all moneys which may have tory proof of the affliction with disabling in- been paid on account of such insurance shall jury by accident of said member, subject to be forfeited to said society, and the said conand in accordance with the charter, amended tract shall not become binding upon the so

ciety unless at the time of its delivery the 1 Affirming 4 N. Y. Supp. 275.

applicant is in sound health and mind.” ? That an insurance company is estopped to deny O'Brien died on the 10th day of January, liability on an insurance policy on the ground that 1886, from the disease of rheumatism, which the application therefor contained false representations, when such application was prepared by the disease he had had for some years prior to company's agent, the insured not knowing of the his application, and he had been attended false representations, see Pudritzky v. Knights of therefor by physicians, and the answers given surance Co. v. Barnes, (Kan.) 21 Pac. Rep. 165, and to the questions above set out were untrue. note; Brink v. Association, 7 N. Y. Supp. The plaintiff made proofs of the death of

O'Brien, and forwarded them to the defend- | ance, and an authorized agent of the insurant, and the defendant refused to make an ance company inserts in the application false assessment for the payment of his claim; al- answers, the company, and not the insured, leging that it had been defrauded by the un- is responsible for the falsity, and that their true answers given by O'Brien as to his health falsity is no defense to an action upon the and the medical attendance upon him. There- policy. after this action was commenced, and the There is no doubt that the complaint in plaintiff alleged in his complaint the mem- this action sets forth an action at law to rebership of Peter O'Brien; his death; that the cover a money demand. The defendant conamount to which he was entitled under and tends that, if the plaintiff is entitled to mainin pursuance of the certificate was the sum tain any action, it is only an action in equity of $2,000; that the defendant had neglected to compel it to make and collect an assessand refused to pay the same, or any part ment for the payment of plaintiff's claim, thereof; and he demanded judgment for $2,- and that therefore the complaint should have 000, with interest. The defendant in its an- been dismissed. By its certificate, and the swer alleged, as a defense, among other conditions annexed thereto, and under its bythings, the untrue answers of O'Brien con- laws, the defendant agreed to do something, tained in his application, and that they were and that was to make an assessment upon false and fraudulent. The action

action was. its members for a death claim, and to pay brought to trial, and a verdict was rendered the proceeds, not exceeding the stipulated in favor of the plaintiff. The judgment amount. It is undoubtedly true that a suit upon that verdict having been affirmed at in equity could have been maintained upon the general term, the defendant appealed to the facts of this case to compel the defendthis court.

ant to make and collect an assessment, and Charles Blandy, for appellant. E. Coun- to pay to the plaintiff the proceeds thereof. tryman, for respondent.

Such a suit, however, would have required

complicated and tedious proceedings, and the EARL, _J., (after stating the facts as plaintiff was not obliged to resort to it. above.) The application for membership tak- When the defendant refused to make an asen by the defendant's agent from O'Brien sessment it violated its contract, and became was signed by his mark. He did not read liable to the plaintiff for the damages caused and was not able to read it, and it was not by such violation; and such damages, like all read to him, and there was evidence upon damages for breaches of contract, can be rethe trial that he gave correct answers to all covered by an action at law. So it has been the questions contained in the application, held in many analogous cases. Peck v. Asbut that his answers were incorrectly writ-sociation, 5 N. Y. Supp. 215; Freeman v. ten therein by the agent, without his knowl- Society, 42 Hun, 252; Cuinming v. Mayor of edge or consent. There was also evidence Brooklyn, 11 Paige, 596, 602: Fulmer v. Asgiven on the part of the defendant that the sociation, 12 N. Y. St. Rep. 347; Fitzgerald answers of O'Brien to the questions put to v. Association, 5 N. Y. Supp. 837; Leuders' him were correctly written, just as he gave Ex'r v. Insurance Co., 12 Fed. Rep. 465; them, and the trial judge submitted to the Earnshaw v. Society, 68 Md. 465, 12 Atl. jury this evidence on both sides. He charged Rep. 884; Jackson v. Association, 73 Wis. them that if O'Brien did not truly answer 507, 41 N. W. Rep. 708; Burland v. Associthe questions the plaintiff could not recover; ation, 47 Mich. 424, 11 N. W. Rep. 269; Taybut that if he answered them truly, and the lor v. Relief Union, 94 Mo. 35, 6 S. W. Rep. agent of the defendant did not write them in 71; Protective Union v. Whitt, 36 Kan. 760, the application as they were given, the de- 14 Pac. Rep. 275; Association v. Lemke, 40 fendant was responsible for the mistake or Kan. 142, 19 Pac. Rep. 337; Association v. fraud of its agent, and that in that event the Riddle, 91 Ind. 84. untrue answers would furnish no defense to Our attention is called by the learned counthe action. The jury having found a verdict sel for the defendant to certain cases which for the plaintiff, we must assume that, upon uphold his contention. But those cited above, sufficient evidence, they found that O'Brien we think, stand upon the best reason. gave true and honest answers to the ques. While upon the trial it was claimed on betions put to him, and that the untrue an- half of the defendant that this was an action swers contained in the application were at law, and that such an action could not be therein inserted by the agent of the defend- maintained against it, no claim was there ant by fraud or inistake. That upon such made that the facts stated in the complaint facts the defendant has failed to sustain its were not sufficient for the maintenance of an defense of breach of warranty and fraud is action at law, if such an action was mainabundantly established by the authorities in tainable. The complaint is open to some this state. Grattan v. Insurance Co., 80 N. criticism, but its alleged defects worked no Y. 281, 92 N. Y. 274; Miller v. Insurance harm to the defendant, and its objections Co., 107 N. Y. 292, 14 N. E. Rep. 271;. Ben- to it came too late here. The plaintiff was nett v. Insurance Co., 106 N. Y. 243, 12 N. therefore entitled to recover something; and E. Rep. 609. These authorities hold that what was the measure of his damages? where the insureü gives true answers to the Just what he lost by the defendant's breach questions put to him as the basis of insur- of its contract. He was entitled to have an


assessment made and collected, and the pro- ment of the action, were substituted as deceeds thereof paid to him. What was the fendants in place of the sheriff, under seccontract worth to him? and what would the tion 1421 of the Code of Civil Procedure. assessment have produced for him? It was The defendants, in their answer, justified the incumbent upon the plaintiff to give evidence taking of the property by the sheriff under which would enable the jury to answer these an attachment in an action commenced by questions. As the assessment was not made, Isaac Goldschmidt and others against J. M. it was impossible for the plaintiff to show ac- Hirschhorn & Co., the assignors, to recover a curately or precisely what such an assessment debt owing by the defendants to the plainwould have produced. He was bound to give tiffs therein at the time of the assignment. such evidence as the nature of the case per- The answer set forth the proceedings taken mitted, bearing upon the matter of damages, to procure the attachment, showing a compliand legitimately tending to prove their ance with the statutory requisitions prelimamount. We have carefully read the evi- inary to the issuing of that process, and furdence, and we think there was sufficient to ther averred that the assignment of Hirschjustify the verdict of the jury. These views horn & Co. was made with intent to hinder, dispose of the most material exceptions bear-delay, and defraud their creditors. At an ing upon the general merits of the case taken early stage of the trial, and before the deat the trial. There were, however, many fendants had entered upon their defense, the exceptions taken on behalf of the defendant, court ruled, in substance, that the defendants both to the reception and exclusion of evi- would not be permitted to raise any question dence having relation to the question of dam- as to the validity of the assignment, and at ages, which are also complained of. We have the conclusion of the case instructed the jury carefully scrutinized these exceptions, and that the only question which they could conwe do not believe that they point out any ma- sider was the question of damages. We think terial error to the prejudice of the defend the ruling was erroneous. Goods and chatant. Our conclusion, therefore, is that the tels fraudulently assigned by a debtor to hinjudgment should be affirmed, with costs. All der, delay, and defraud creditors are attacha

ble in the hands of his voluntary assignee at

the suit of a creditor defrauded by the assign(117 N. Y. 306)

ment. Rinchey v. Stryker, 28 N. Y. 45; HESS 0. HESS et al.1

Frost v. Mott, 34 N. Y. 253. The rule which (Court of Appeals of New York. Nov. 26, 1889.) prevents the levy of an execution under simASSIGNMENT FOR BENEFIT OF CREDITORS—HRAUDilar circumstances upon equitable assets or ATTACHMENT.

choses in action proceeds upon peculiar 1. Goods and chattels assigned by a debtor to grounds, not applicable to chattels, of which defraud creditors being attachable in the hands of there can be a manual tradition. Thurber v. his assignee at the suit of a defrauded creditor, the Blanck, 50 N. Y. 80; Anthony v. Wood, 96 of such goods by showing that it was under a valid N. Y. 180. If, therefore, the present action attachment, and that the assignment was fraudu. had been continued against the sheriff, there lent as to the attaching creditor.

2. Such taking may be justified even if the at: can be no doubt that he could have defended tachment be vacated, provided it was valid when the original taking by showing that he took the taking occurred.

the goods under a valid attachment against 3. In an action by an assignee for the conver- Hirschhorn & Co., and that the assignment sion of property covered by the assignment, a ruling that defendants may not so justify the taking to the plaintiff was fraudulent as to the plain. and attack the validity of the assignment, cannot tiff in the attachment suit. The defendants, be supported on the ground that the debt and the as his indemnitors, stand in his shoes. We papers on which the attachment issued were not need not consider whether they would be proved, and therefore the attachment may have

probeen void for want of jurisdiction, where the rul- tected to the same extent as the sheriff, if the ing was made before defendants had any oppor- process, though regular on its face, was af. tunity to prove the attachment proceedings. fected by some latent vice, as, for example,

Appeal from superior court of New York if issued without jurisdiction. city, general term.

It is quite evident from an inspection of Otto Horwitz, for appellants. W.J. Town- cluding inquiry as to the validity of the as

the record that the ruling of the court, exsend, for respondent.

signment, was based on an admission of the ANDREWS, J. The action is brought by defendants in their answer that, subsequent the plaintiff, as assignee of the firm of J. M. to the seizure of the goods by the sheriff, the Hirschhorn & Co., under a general assignment attachment was vacated. This admission was for the benefit of creditors, dated May 16, made in connection with a separate matter 1887, to recover for the alleged conversion by set up in the answer, relating to the conduct the sheriff of the city and county of New of the sheriff after the vacation of the attachYork of certain goods and merchandise, part ment, for which the defendants alleged they of the assigned property taken by him from were not responsible; the acts not being, as the possession of the plaintiff after the assign- claimed, within the terms of the indemnity. ment. The present defendants are indemni- It is clear that the defendants were entitled tors of the sheriff, who, after the commence- to litigate the validity of the assignment, un

less the vacation of the attachment precluded 1 Reversing 5 N. Y. Supp. 959, mem.

them from justifying under it. If the attach


ment was void, it would afford no protection trial term entered on a verdict for $2,500, deto the party suing it out, whether vacated or fendant appeals. not, and it is probable that indemnitors who Davies & Rapallo, (Edward S. Rapallo come in in aid of the party would stand in and Brainard Tolles, of counsel,) for appelthe same position; but if valid, the process lant. Roger Foster, for respondent. would protect both the officer and the party for what was done under it before it was va PER CURIAM. This action was brought to cated, the liability of the property to seizure recover damages for injuries occasioned to being shown. The case of Day v. Bach, 87 the easements of light, air, and access perN. Y. 56, is a decisive authority that trespass taining to the property of the plaintiff's teswill not lie for the seizure of goods under a tatrix for six years prior to 1887, the time of valid attachment subsequently vacated for the commencement of the suit, by the erec

The process is a protection to the offi- tion, operation, and maintenance of an elecer or party for whatever is done under it vated railway by the defendant in Division while in force. The vacation of the process street, in the city of New York. The propfor error does not convert into a trespass that serty consisted of a lot and building on that which was legal until it was set aside. The street, 127 feet wide, and which for a period subsequent conduct of the officer or party in of 20 years had been occupied as a millinery dealing with the attached property may cre- store. ate a cause of action; but if the original tak The only material question raised by the ing was justified, this would afford no ground appellant on this appeal is whether the opinfor a recovery against the indemnitors. ions of witnesses were admissible as to "what

The ruling of the court is sought to be sup- would have been the fair rental value of this ported on the ground that the existence of property in the years 1879, 1880, and 1887, if the debt and the papers on which the attach- the railroad had not been built.” Similar ment issued were not proved, and that there- questions were put to two witnesses on the fore the attachment may have been void for part of the plaintiff, and were allowed to be want of jurisdiction to issue it. But this an- answered, by the court. It may be said, with swer is insufficient. The ruling of the court regard to the evidence called for by the queswas made in limine, before the defendants tions, that it did not purport to cover the had any opportunity to prove the attachment whole period for which damage was claimed, proceedings. It was assumed by all parties but included but a small part of one year, and that there was a valid attachment, and the had therefore but a slight bearing on the isruling proceeded, as is clearly to be inferred, sue in controversy. It is further to be obupon the ground that nevertheless the vaca- served that the evidence was not specifically tion of the process deprived the defendants of objected to upon the ground that the opinions their justification.

of witnesses were inadmissible on the subject, We think the court erred, and that the judg- but generally, as being incompetent, irrelement should be reversed, and a new trial vant, hypothetical, and the witness not comgranted. All concur.

petent to give an opinion. The objection

seemed to imply that opinions were competent (117 N. Y. 219)

on the subject. The trial seems to have been MOGEAN V. MANHATTAN RY. Co. conducted on both sides, and more particu(Court of Appeals of New York. Nov. 26, 1889.) larly on that of the defendant, upon the theory EMINENT DOMAIN-DAMAGES-OPINION EVIDENCE that opinions were admissible as to rental

1. In an action for damages for injury to prop" value of the premises, and causes which aferty by the erection and maintenance of an ele- fected it. The evidence on the part of the devated railroad, the opinions of witnesses as to what fendant was almost exclusively of this charthe fair rental value of the property would be if acter; and it seems ungracious in it now to the railroad had not been built are inadmissible.

2. At the trial there was abundant evidence insist upon a rule which it systematically viothat the actual rental value of similar property in lated during the course of the trial. Assumthe same street had diminished from $1,600 or $1,800 a year to $600 or $900, and that after the erec-ing, however, that the objection was suffition of the road business in the street commenced ciently taken, we are of the opinion that the to fall off, and left the street, on account of the dirt evidence called for was inadmissible on the and smoke from defendant's train. Held, that this evidence, of itself, was sufficient to establish question in controversy. The opinions of a depreciation of $900 a year in the rental value of witnesses as to the causes which occasioned the property, and the admission in evidence of the the decrease of rental value, as well as to the opinion of a witness as to what the rental value of amount of damages done thereby, were clearly the property would have been if the road had not improper. As was said by Judge ALLEN in reversal; 'the jury having rendered a verdict for Teerpenning v. Insurance Co., 43 N. Y. 279, only $2,500, the road having been operated six “as a rule, witnesses must state facts, and years.

not draw conclusions or give opinions. * * *. EARL, J., dissenting.

It is not permitted to give in evidence the Appeal from superior court of New York opinion of witnesses having knowledge of the city, general term.

subject-matter as to the damages resulting Action by James H. McGean, as executor of from a particular transaction.” In Marcly v. Delia Powers, deceased, against the Manhat- Shults, 29 N. Y. 346, quite a similar case, tan Railway Company. From a judgment of Judge DENIO said: “The plaintiff's counsel the general term, affirming a judgment of the offered to ask the plaintiff, while under ex

amination as a witness, what the value of the where a similar business was prosecuted, and use of the house was per annum before the largely increased the trade and rental value raising of the dam. I think this was objec- of property in such streets. tionable, as calling for the opinion of the wit- clearly indicated, in the absence of some other ness.

We may suppose the ques- explanation, that the injury to the plaintiff's tion was to have been followed up by inquir- property was occasioned by the defendant's ing the value of the rent after raising the road, and that the annual injury in the dedam, and then taking the difference for the preciation of rental value of the premises amount of the damages. It will not be pre- amounted to at least $900 a year, aggregattended that a witness could be allowed to ing damage to the sum of over $5,000 for state his opinion of the amount of damages. the six years covered by the complaint. The He could describe the character of the over- evidence of the plaintiff's witnesses was pracflowing, and its effect; and then it would be tically undisputed on these propositions. for the jury to estimate the damages. If the Aside from the evidence of one witness, who house had been kept for renting, and some- testified that the rent of certain premises octhing in the nature of a market price of the cupied by him in Division street for confecuse could have been proved, it might have tionery and restaurant purposes had increased been competent.”

from 1880 to the time of the trial, the entire But, conceding the inadmissibility of the evidence on the part of the defendant conevidence given, it does not follow that the sisted of the opinions of witnesses that the judgment should for that reason be reversed. rental value of such property had not been The court must be satisfied, upon an exam-impaired by the construction and mainteination of the whole case, that the appellant nance of the defendant's road. They adwas prejudiced by the admission of the evi- mitted that such value had decreased since dence, to warrant a reversal. It was said by the building of the road, in the aggregate, WRIGHT, J., in a case where error in the ad- for the six years in question, from $1,000 to mission of evidence was urged as cause for $2,600, but gave it as their opinions that reversal without reference to its materiality: such decrease was occasioned by other causes “This is hardly the rule now in a court of than the operation of the defendant's road. law.

Even these courts undertake The grounds upon which the various opinto judge for themselves of the materiality of ions were predicated were fully explained to evidence found to have been improperly ad- the jury by the witnesses, and presumably mitted or rejected; and, when satisfied that occasioned a diminution of their verdict from no injustice has been done, and that the ver- the sum warranted by the evidence to that dict would have been the same with or with- actually found. The damage sought to be out such evidence, they have refused a new established by the objectionable questions trial.” Forrest v. Forrest, 25 N. Y. 510. was less than that indicated by the plaintiff's In People v. Fernandez, 35 N. Y. 59, Judge evidence generally; and the verdict of the PORTER lays down the rule that “the recep-jury, therefore, fails to show that it was intion of illegal evidence is presumptively in- quenced by the objectionable evidence to the jurious to the party objecting to its admis- prejudice of the defendant. The uncontrasion; but where the presumption is repelled, dicted evidence showed a general decrease in and it clearly appears, on examination of the rental value of the property in Division street whole record, beyond the possibility of ra- after the building and operation of defendtional doubt, that the result would have been ant's road, and a sufficient cause in such the same if the objectionable proof bad been building and operation to account for such rejected, the error furnishes no ground for decrease. If the evidence objected to was reversal." Upon a careful examination of stricken out, it would not materially impair the case, we are satisfied that the defendant the strength of the plaintiff's case, or lead to was not harmed by the evidence in question. any different result than that reached by the Abundant and competent evidence was given jury. Upon the whole evidence, it is apparon the trial, by witnesses who had knowledge ent that the jury awarded damages upon the of the facts, that the actual rental value of theory of a decrease in rental value, occasimilar property in the same street had stead- sioned by the inaintenance and operation of ily diminished, after the building of the de- the defendant's road, to the extent of about fendant's road, until that which had before one-half of the actual diminution of value rented for from $1,600 to $1,800 per annum during the contested period, and held the had decreased to a rental of from $600 to other half to be attributable to other causes. $900 a year. Evidence was also given that Such a verdict was, we think, warranted by after the defendant commenced making ex- the evidence, and the defendant has no just cavations, in 1878, and while its road was reason to complain of the result. While the being constructed and operated, business on court submitted all of the evidence in the the street commenced to fall off, and custom- case to the consideration of the jury, no exers ceased to come there as before, and that ception was taken by the defendant to such dirt, ashes, smoke, and cinders from the de- submission in respect to the incompetency of fendant's road and trains filled the air, opinions upon the question of rental value, darkened the light, and embarrassed the trade and the causes which led to its decrease. to such an extent that business left the The reason for the omission of the defendant street, and flowed into adjoining streets, to take this point is obvious, since it would

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