frm was indebted to an estate a new firm was formed under the same name, by bringing in a new partner. The latter knew of the existence of the debt, but not the amount thereof, and he made no inquiry. He contributed no capital to the new firm, had none except the stock and assets of the old firm, and the business was conducted after he became a member precisely as before. The debt to the estate was credited to the executors on the books of the new firm. They were subsequently credited with interest accruing, charged with goods and money paid, and statements of the accounts were rendered to them. The court held that the new partner was charged by reason of these facts. There is no conflict of evidence regarding the material facts in the case at bar, and consequently there was no error in the learned trial judge directing a verdict for the plaintiff, and ordering the exceptions to be heard at the appellate division. The judgment appealed from should be affirmed, with costs. PARKER, C. J., and O'BRIEN, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur. Judgment affirmed. (163 N. Y. 312) PEOPLE v. MULLEN. (Court of Appeals of New York. June 5, 1900.) HOMICIDE-INSTRUCTIONS-CROSS-EXAMI NATION. 1. A memorandum was found on accused foretelling the death of his wife and himself by his own haud, and on the trial for the murder of his wife he stated that she was to be the murderer, and the writing was to save her from the consequences of her crime should her courage prove insufficient for her self-execution after taking his life. Held, that an instruction leaving to the jury whether they would accept the written memorandum, or his statement on the trial exonerating himself, as to who was the murderer, was not erroneous, as treating the memorandum as a narrative of the commission of the crime instead of evidence of an intention, where the memorandum was subsequently referred to as the one which accused wrote previous to the homicide. 2. The allowance of too great latitude in cross-examination is not reversible error, where the questions of which complaint is made did not elicit answers injurious to accused. Appeal from supreme court, trial term, New York county. Joseph Mullen was convicted of murder, and he appeals. Affirmed. William F. Howe, for appellant. Charles E. Le Barbier, Asst. Dist. Atty., for the People. PARKER, C. J. Shortly before midnight on the 3d of June, 1898. Officer Hampshire, of the New York police force, while standing on the corner of Seventy-Ninth street and Riverside drive, heard a noise and a cry for police. Running in the direction from which the sound came, he soon found himself in the basement area of number 331 West Seventy-Eighth street, and, looking through an iron gate which barred his entrance, he saw two figures,-one a woman in a reclining position, with her back towards the gate; the other a man standing and apparently looking out towards the street, from whose mouth a moment later came a gurgling sound, followed almost immediately by his falling across the woman. There were no other occupants of the room, and Officer Hampshire hastened up to the front door of the house, which was soon opened, and thence he quickly found his way into the basement, pulled the man off the woman, and laid him across the door sill. Though both man and woman were unconscious, both were living. By the side of the woman lay a revolver, and an examination disclosed that a bullet from it had entered the woman's neck on the right side, and after chipping off a portion of the verte bra had lodged just behind it, while another bullet had penetrated her left thigh, severing the femoral artery, and imbedding itself in the tissues. A third bullet had been fired into the mouth of the man, making an ugly wound, which resulted in unconsciousness,. but did not prove fatal. The woman died within a few minutes after the arrival of the officer. It was soon discovered that the parties were husband and wife, having been married on the 10th day of November, 1895. The man recovered from his wound, and an indictment was found against him, wherein he was charged with the crime of murder in the first degree; and on the trial it was shown that shortly after his marriage to Jobanna O'Brien, in November, 1895, she drew out of the savings bank $300, and either gave or loaned it to him, after which he went to Ireland, returning to his wife after the money had been expended. They afterwards ap plied for and obtained in a family the posi tions of coachman and cook, respectively. After a few months of work, defendant was sentenced to the penitentiary, where he remained until three days prior to the homicide. Immediately upon his release, and on the 1st day of June, he called upon his wife, who was serving as cook in No. 331 West Seventy-Eighth street, under the name of Johanna O'Brien. He spent some portion of that day and evening and of the next with her, and on both evenings they went out walking together, but on the third the chambermaid wished an evening out, and so the cook stayed in, and her husband, the defendant, stayed with her. It was about 10 o'clock when the chambermaid returned, and she testified that she found the defendant and his wife sitting by the kitchen table, and she sat down in the room with them, where all remained until about half past 10 or 11 o'clock, when Johanna said to the defendant. "It is now time for you to go home." The defendant smiled, but made no answer, and together they started towards the basement stairs, which they descended, and then the witness says they quarreled, although all she could remember having heard was a scream by the deceased, followed by an exclamation by her, "Oh, Joe!" after which she heard a pistol shot. The people also introduced in evidence a small book, which the police officer found in the defendant's pocket in a search made almost immediately after the officer took the defendant away from his wife and laid him across the sill. That book contained a memorandum in the handwriting of the defendant, which reads as follows: "Dear Friend: Whoever you may be that finds us first, and finds this note, don't blame me. This sad affair is not my fault. My wife is as much to blame as me. I am doing this dreadful thing because I love my wife, and she will not do what I want her to do. She has been away from me for eighteen months, and I have asked her to go to look for a place with me as man and wife, and she will not do it, and she is causing me for things in the wrong, and she puts the blame on me and I put it on her. So she is not happy, nor I am not happy either. So I thought that, with my one hand, I would end her life and mine, in each other's arms. So she said it would be the best thing. Then we would be out of our troubles, and so I think that I can say no more in the matter, only that it is all love of my wife what made me do it. So I ask the world at large to forgive me for what I have done. It is better for us both, and I hope that the Lord will forgive me for doing this; and I ask one request, and that is to bury me and my wife by my side, as we were found. This is a very hard lot to write. My hand shakes so much so I have no more to say, only God bless all my enemies and everybody. I will put no address on this note. From a heartbroken husband. "Joseph Mullen. "Born in Ireland, in the county Derry, in the year 1870. "And now it is my own life and my loving wife's with one hand. There are no jealousy in this case. The whole fault is my wife's mother that has brought all this on. The Lord forgive her, for she don't know what she is talking about no more, only that she and my dear love will be happy in heaven together. The people in this world won't let us be happy. Maybe the ones in the next will. This note, please take this to Mrs. O'Brien, No. 6 Cole street, Jersey City. "June 3d, 1898." The defendant was the only witness sworn on the part of the defense, and he testified that his wife did the shooting, that the revolver was hers, and that she told him that she had purchased the ammunition on that day. His version of the story was that his wife was very much discouraged as to their future, especially because of the fact that he was an ex-convict, and she insisted that people would not employ them, and if they were employed the story would come to the ears of their employers after a time, with the necessary result of their being discharged. To his suggestion that they would not. find it out, she insisted that her people hated him so that it was impossible to hope to keep his past to themselves. She suggested on the 2d day of June that he visit her mother on the morning of the 3d, and see if the strained relations existing between them could not be improved, and he attempted to carry out that suggestion, but his mother-inlaw opened the door, and as soon as she recognized him slammed the door in his face. His story was intended to convey the impression that this act of the mother-in-law was regarded by his wife and himself as demonstrating that their gloomy forebodings as to their future were unquestionably well founded, for he testified: "We had come to the conclusion the way everything was going against us, and the way her mother was and the strain she put on her, her mind and mine, we made an agreement at that kitchen table to do away with both in each other's arms." The defendant's version of the nature of the agreement between himself and his wife, and how it came to be made and how executed, is told by himself in these words: "Well, the agreement was come to. as my wife had been talking about doing suicide, and she said that she meant it, and I knew if my wife said a thing she meant it, and I said, 'Well, Jo, if you are going to do away with yourself, you might as well do away with me first and yourself afterwards, because it will be a case of two, no matter how it goes;' and she said, 'Do you really mean what you say, Joe?' and I said, 'I do, if you do;' and so we agreed to die together at that table, and the first agreement was, she asked me if I would shoot her, and then my. self, and I said, 'No, Jo, I wouldn't shoot you, and I don't think I will have the courage to shoot myself;' and then she said, she says, 'Wouldn't you have the courage to take she first stated. I asked her, 'What do you intend to kill us both with?' and she said, 'Don't you think carbolic acid would be the quickest?' and I said, 'No; if we take it, we are ready to be found and ready to be cured;' and she said, 'Well, you know that revolver what I have got in my trunk? and I says, 'Yes.' 'Well,' she says, 'I have got that.' She says, 'We can shoot ourselves;' and I said, 'Where is the ammunition coming from?' and she said, 'I have got it; and I said, 'How did you get ammunition?' and she said, 'I was out this afternoon in town and bought it,' she says, 'because I was intending to shoot myself anyhow, whether you did or not; and I said, 'Well, if you have got ammunition, the shooting is the speediest and the surest;' so we come to the conclusion that my wife would shoot me and then herself; and she says that when we went down- That was our agreement, what I wrote down in the book, and I wrote that agreement in the book that my wife was to shoot me in the mouth, or I had to shoot my wife No, I am telling it wrong; but it is no odds, anyhow. The agreement that was made I want to try to explain it all as straight as I can. The agreement was that she was to shoot me anyhow, and then herself; but I made the agreement to write in the book for the purpose of, if my wife shot me and failed for to shoot herself, that the book would clear her by my stating in the book that I died by my own hand." It will be seen, therefore, that the defendant upon the trial admitted writing the memorandum in the book foretelling the death of his wife and himself by his hand, but insisted that the real agreement was not that he should be the murderer, but that his wife should be, and the object of the writing was to save her from the consequences of her crime should her courage prove to be insufficient for self-execution after taking the life of her husband. The examination of the witness covered many pages of the record, but it will serve no useful purpose to further advert to it; for, of course, no question is made that the evidence was of such a character as to support a judgment of conviction for murder in the first degree, the contention of the learned counsel for the appellant in this court being that the court erred in its charge to the jury, and in overruling objections interposed by the defense to certain questions asked the defendant by the prosecuting officer on cross-examination. The portion of the charge of which complaint is made is as follows: "Now, therefore, it omes down to the question, did the deceased kill herself or did this defendant kill her? As to that question, you have his own statement, made once in writing and once under oath, and they are at variance. Which statement, gentlemen, are you going to believe,the statement which he wrote out and left on his person, to be found after his death, or the statement which he now gives for the purpose of exonerating himself?" The contention of the learned counsel is that the charge treated both the statement in the book and the testimony given on the witness stand as narratives of the commission of the crime by the one or the other of the parties to it, and hence that the jury were given the impression that the memorandum of the defendant could be treated by them as an account of the shooting, whereas it was in fact but evidence of an intention. The charge of the judge, as a whole, left no opportunity for a mistake on the part of the jury touching the nature of the memorandum, as will appear later on, but it should first be observed that the learned counsel for the defendant leaves out of consideration an important feature of the memorandum which speaks of something besides the intention of the party writing it. It tends to show the existence of an agreement between defendant and his wife that they should both die, and by his hand, whereas his testimony is that they had not so agreed, but, on the con trary, that while the agreement was that they should die it should be by her hand. Thus it appears that, as to the nature of the agreement, the memorandum and the testimony were in conflict, and a view of the memorandum which regards it as merely evidence of intention is too narrow. But the charge of the court, considered in its entirety, must have presented the real situation to the minds of the jury with perfect clearness, as we think; for, in addition to that portion of the charge which we have quoted, the court said, in speaking of this memorandum: "It is not the history which he gives of this transaction here on the witness stand, but it is the history which he gave of what was going to happen before it did happen. I will read so much of this statement made in writing before this transaction as gives the history of it by him at that time. [The court here read part of the memorandum to the jury, after which the charge continued.] That is the statement which the defendant says he wrote himself previous to the time when this homicide took place. When he was examined as a witness he admitted that he wrote it so that if his wife should succeed in killing him, and not in killing herself, she could clear herself from responsibility by pointing to this letter showing that he did it." There are other portions of the charge bearing upon this question. That portion so far quoted, however, demonstrates not only that the jury was correctly informed of the character of the memorandum, but that the charge was put with such clearness and force that there was no opportunity for confusion as to whether the memorandum spoke before or after the event. The other question presented relates to the cross-examination by the district attorney, and, while we are inclined to agree with the defendant's counsel in so far as he urges that the court was disposed to give the counsel for the prosecution too much latitude in cross-examination, we are unable to assent to his claim that the judgment should be reversed on that account, for the reason that the questions of which complaint is made did not elicit answers that were at all injurious to the defendant. The judgment of conviction should be affirmed. O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur. Judgment affirmed. (163 N. Y. 237) NEWPORT IMP. CO. v. HOME INS. CO. (Court of Appeals of New York. June 5, 1900.) FIRE INSURANCE-EMPLOYMENT OF MECHANICS ON PREMISES-PROVISION IN POLICYVIOLATION — EFFECT - CONTRIBUTION TO LOSS-IMMATERIALITY. A fire insurance policy provided that it should be void if mechanics were employed in building, altering, or repairing the insured premises for more than 15 days at a time, without the underwriter's consent. At the time of loss, carpenters, painters, etc., had been employed for more than 15 days in tearing down certain frame additions to the building insured, and erecting one large addition. Held, that the provision in the policy was violated, and hence a suit to recover thereon was properly dismissed on the merits; the question as to whether the alterations in the building contributed to the loss being immaterial. Appeal from supreme court, appellate division, Fourth department. Action by the Newport Improvement Company against the Home Insurance Company. From a judgment of the appellate division, Fourth department (47 N. Y. Supp. 1143) affirming a judgment dismissing plaintiff's complaint on the merits, plaintiff appeals. Affirmed. William Nottingham, for appellant. Jones, Townsend & Rudd, for respondent. BARTLETT, J. The plaintiff seeks to recover in this action the sum of $2,000 and interest upon a policy of insurance issued by the defendant on a knitting mill, the property of the plaintiff, in the village of Newport, N. Y. This policy was issued on the 4th of January, 1895, for the term of one year. The premises were destroyed by fire on the night of October 17, 1895. The defendant denies liability under the policy by reason of certain alleged acts of the plaintiff which rendered it void. The policy contained this provision, among others: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * [here are immaterial provisions]; or if the hazard be increased by any means within the knowledge or control of the insured; or if mechanics be employed in building, altering, or repairing the within-described premises for more than fifteen days at any one time." This clause in the policy contains a large number of provisions separated by semicolons, each of which renders it void, as therein provided. The answer pleaded the facts, and claimed that the hazard was greatly increased, and that the acts complained of were with the knowledge and under the direction and control of the plaintiff. It is clear that the acts to which reference is about to be made fall within the second provision above quoted, to the effect, "or if mechanics be employed in building, altering, or repairing the withindescribed premises for more than fifteen days at any one time." The question of increase of hazard is not necessarily involved. If mechanics are employed in building, altering, or repairing the premises for more than 15 days at any one time, and an agreement or consent is not indorsed on the policy permitting said work, the contract of insurance is void. The building insured stood on the south side of a street or highway running east and west. The main building was two stories in height, and about 60 feet on the street and 32 feet wide, with a basement under it. There was a creek lying south of this building some 30 or 40 feet, the land from the highway to the creek falling off considerably. On the south side of this building, and connected with it, was a house 22 feet by 28, used as an engine and boiler house. On the east, adjoining the main building, was a house about 32 feet long and 28 feet wide and one story in height. Beyond this was another addition, about 3 or 35 feet long and 25 feet wide. These two structures were used for storage purposes at the time the insurance was taken out. It rests upon uncontradicted evidence that some time in the month of August, 1895, these two additions on the east were torn down, and in place thereof was erected a new building 72 feet long and 35 feet wide, with a four-story tower at the east end thereof. It was put up to look in a general way like the old building, and was built up against the east end of it, and connected with it. The carpenters commenced work on this new building about the 2d of September, 1895, and the general work on the new structure was not completed at the time of the fire. It appeared that the east end of the main building, which separated it from the old additions on the east, had a stone wall, which was as high as the first floor, that was 20 inches thick. When the work on the new building had sufficiently progressed, this basement wall was removed, together with the entire east end of the building, and these openings were covered by matched stuff, to temporarily keep out the wind and rain. It appears by undisputed evidence that work was done in the old building in order to make the connection on the various floors, and that the work was not completed in that regard at the time of the fire; also, that the new building was tied and bolted to the old structure. The carpenters and painters were at work on the premises up to 6 o'clock of the night of the fire. It was also proved that there were in the new building considerable quantities of linseed oil, turpentine, dryer, and other necessary materials for the painters. There is no proof as to how the fire originated, but there is a conflict in the evidence as to the point at which it began. Several witnesses testified that the four-story tower at the east end of the new building was in flames at the time they reached the scene. Two witnesses testified that they went to the south side of the building on arriving at the premises, and found that the engine and boiler house was nearly consumed, and it is to be inferred from this evidence that the fire had spread from that building to the new part of the main structure. As the plaintiff was nonsuited, it is doubtless entitled to the most favorable view of the evidence as to the place where the fire originated, if it is material. The point was argued in the briefs, but we regard it as wholly unimportant. As before stated, the question of increase of hazard is not necessarily involved in this case, The policy was forfeited by reason of these alteratious and work in erecting the new building and connecting it with the old structure, which necessitated the removal of the entire east end of the latter, without written consent of the defendant. It is not claimed that any consent was obtained from the company to prosecute this work, and the plaintiff rests solely on the contention that the provision in the policy we are considering has not been violated. In Mack v. Insurance Co., 106 N. Y. 560, 13 N. E. 343, a policy of fire insurance contained the provision declaring that the work of carpenters and other mechanics in altering or repairing the building covered by the policy would cause a forfeiture of all claims under it, unless the written consent of the company was indorsed thereon. It also provided that, if the risk should be increased by any means within the control of the assured, the policy would be void. The building was, at the time of the insurance, occupied as a grocery store. It appeared at the trial that the plaintiff, after it was issued, leased the building for the purpose of carrying on the fruit-drying business, which required substantial alterations of the building; among others, the removal of portions of two floors and the roof, and the construction of large wooden flues extending up through the building from the cellar and above the roof. These alterations were being made without the defendant's consent, and while carpenters were engaged in the work the building was destroyed by fire. It was held that the evidence showed a violation of the conditions of the policy, which rendered it void, and that a submission of the question to the jury was error. Chief Judge Ruger, who wrote the opinion of the court, said: "The case is brought clearly within the spirit as well as the letter of the contract, and, if it does not show a violation of the conditions, we can conceive of no situation which would have effected that result. In case there had been a submission of the facts to the jury, and it had found that carpenters were not engaged in making alterations of this building within the meaning of the policy, it would have been the clear duty of the court to have set aside the verdict." There is, doubtless, a double object in inserting the provision we are considering in a fire insurance policy, to wit, the company desires to be advised of any change in the original conditions of the contract, and, further, to charge during the continuation of the work, if it sees fit to sanction it, an increased premium. While the question of hazard and the increase thereof is always one of great moment to an insurance company, yet, under the clause in question, it would doubtless have the right to terminate the contract of insurance on learning that forbidden work had been in progress for more than 15 days, and was still progressing, notwithstanding the fact that the premises had not been injured or destroyed by fire. The judgment appealed from should be affirmed, with costs. O'BRIEN, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur. PARKER, C. J., not sitting. Judgment affirmed. (163 N. Y. 332) CORN EXCH. BANK OF CITY OF NEW YORK v. AMERICAN DOCK & TRUST CO. (Court of Appeals of New York. June 5. 1900.) WAREHOUSE COMPANY-RECEIPTS -COLLATERAL SECURITY-FALSE REPRESENTATION PRESIDENT'S AUTHORITY-EVIDENCE-HARMLESS ERROR-MEASURE OF DAMAGES. 1. Where, in a suit àgainst a warehouse company to recover the value of warehouse receipts fraudulently issued by defendant's president, and taken by plaintiff as collateral security, it appears that plaintiff's agent, employed to ascertain whether the goods represented by the receipts were in actual storage, on going to the warehouse was informed by defendant's superintendent in charge that the goods were there, but could not be seen, and the loan was made on the faith of the agent's report that the goods were in storage, though they were not so in fact, such assurance by defendant's superintendent relieved plaintiff from further investigation, and defendant cannot claim that plaintiff was deceived by his own agent, and did not part with its money in reliance on the representations of the officer issuing the re ceipts. 2. Where, in a suit on warehouse receipts issued by the president of the defendant warehouse company to himself, and taken by plaintiff as collateral security for a loan to such president, plaintiff introduced evidence of a declaration of defendant's secretary that its president had sole authority to sign receipts, and it is not shown that the secretary referred to any authority in the president to issue receipts to himself, but only to other customers, the admission of such evidence is harmless error, defendant not claiming that its president did not have authority to issue receipts to customers generally, but only that he had none to issue them to himself. 3. In an action on warehouse receipts issued by the president of defendant warehouse company to himself, and taken by plaintiff as collateral security for a loan to such president, evidence that the attention of defendant's secretary had been called to the fact that its president had signed similar receipts, and stated that the president had sole authority to sign receipts, is admissible to show that defendant's officers acquiesced in the president's practice of issuing receipts to himself, and hence that he had been clothed with implied authority to do so. 4. Where plaintiff sues a warehouse company to recover the value of warehouse receipts which it has taken as collateral security for a loan to defendant's president, who had fraudulently issued such receipts to himself, the measure of plaintiff's damages is the amount of the loan, with interest, and not the value of the property represented by the receipts, notwithstanding an agreement between plaintiff and defendant's president that the receipts should also secure a note discounted to |