the jury.

error :

fect his right of recovery. The general nied, and the court submitted the case to state of the accounts of the partnership the jury, charging that if the assured was, therefore, not a ground of defense. answered falsely any question in the apJudgment aflirmied.

plication, whether he knew this answer to Per Curiam opinion.

be false or not, the policy was void.

John H. Bergen for respt.

Joshua M. Van Cott for applt.

Held, That the refusal to take the case Boos, respt. y. The World Mutual In- from the jury was not error, that it was

a question of fact for the jury to detersurance Company, applt.

mine whether the diseases proved were Decided February 22, 1876.

severe within the meaning of the policy, Whether or not a disease is serious” and whether the sunstroke was within within the meaning of a life insur. seven years. ance policy is a question of fact for

A motion was made for a new trial on The General Term has no power to set

the judge's minutes, which was denied. aside a verdict as against the weight

Defendant claimed that the General of evidence upon an appeal from Term erred in holding that it could not the judgment only. A motion for set aside the verdict as against the weight that purpose can only be made at of the evidence, the appeal being from the Special Term or Circuit, and must judgment only. be brought up on an appeal from the Held, no

That the appeal order thereon.

brought up questions of law only (Code, This was an action upon a policy of life $ 348); that the only mode in which the insurance brought by plaintiff as assignee General Term could acquire jurisdiction thereof, and to recover back an annual to review a case upon the facts when the premium paid by said assignee after the trial is by jury, is by an appeal from an death of the assured, but before it was order granting or refusing a motion for a known to plaintiff or defendant. The de- new trial on the evidence, which can only fence was a breach of warranty in that be made at the Circuit or at Special Term. that the deceased answered falsely certain (Code, S 265.) questions in the application. Among On trials by jury the only subjects of others were two questions, one whether he exception are rulings at the trial. A mohad had any of certain specified diseases, tion for a new trial is a proceeding subse" or any serious disease,” and another quent to the trial, and an order made whether during the last seven years he thereon is reviewable only by appeal. had had any severe sickness or disease, Judgment of General Term, affirming both of which were answered in the nega- judgment for plaintiff on verdict, affirmed. tive. The application was made in 1870,

Opinion by Rapallo, J. evidence was given that in 1865 the deceased had an attack of pneumonia which

PRACTICE. AMENDMENT. lasted ten days, and that in 1863 or 1865 he had a sun stroke which laid him up

N. Y. COURT OF APPEALS. for a few days. Neither of these diseases In re Petition of Ingraham. were mentioned in said questions. De

Decided February 25, 1876. fendant's counsel moved for a non-suit on Upon a proper showing this court will the ground that the answers to these ques order its remittitur amended so as tions were proved false. This was de to state that the order of affirmance

is without prejudice to an applica Shaw, respt. v. The Republic Life Intion by the appellant to the court surance Company, applt. below to re-open the case.

Decided January, 1876. This was a motion by the petitioner for the amendment of the remit An agreement to issue a policy of life

insurance is good, although the pretitur so as to allow him a re hearing mium was paid by note, and the in the court below, or to renew his note was not paid at maturity, where application (which was to set aside an

the policy contains no condition assessment) on further proofs. The mo


avoiding policy unless the note is tion was founded upon affidavits to the paid. . effect that the defect of proof upon which In 1868 the Hahneman Life Insurance this court based its judgment of affirm- Company insured the life of plaintiff's ance could be supplied, and that the husband for $2,000, and the policy was point upon which the case was decided in for plaintiff's benefit, and up to Septemthis court was not taken in the court be- ber, 1872, plaintiff's husband paid the low. The case was decided in the court premiums thereon, when, in that year he below on the ground that the land claimed neglected to pay, and the policy, by its by the petitioner, and through which a terms, lapsed. In the fall of 1871 the sewer had been constructed, had been Hahneman Life Insurance Company sold dedicated to the public. When the case out to defendant, and defendant reinsured came to this court the point was taken all their risks. that the proofs failed to show that any

In November, 1872, after plaintiff's part of the sewer was on the land claimed policy had lapsed, M. & DeV., a general by the petitioner, or that the owner of the and local agent of defendant, called at the land had not consented to its being placed house of plaintiff's husband and wanted there. This point was found to be well him to take a new policy in defendant, taken, and the question of the dedication saying that they were engaged in taking of the land as a street was not raised or up old policies in the H. Co. and reissuing, passed upon by this court.

new ones in defendant. M. told plaintiff's Held, That it is beyond the province of husband that his policy in the H. Co. had this court to grant the amendment de- lapsed, and that he would try and get desired, but as it is proper that the peti- fendant to issue a new one, and plaintiff's tioner should have an opportunity to put husband then gave M. his note for $56.00, his case in such shape as that the question and signed an agreement, forms for which of dedication may be passed upon, or- M had, as follows, viz: dered that the remittitur be amended so

“Received November 26, 1872, of R. B. as to show that this question was not Shaw, policy No. 2,705, issued by H. Co., passed upon, and to state that the affirm- &c., now in force, dated, &c., for amount ance of the order is without prejudice to an application by the appellant to the $2,000, annual premium payable on Sepcourt below to re-open the case and allow tember 8, each year, in exchange for the parties a rehearing on further proofs, which the R. Co. (defendant) will issue or, if the petitioner desires, to a new ap- its policy of same amount and deliver plication. Per curiam opinion.

same in a reasonable time, and in the meantime keep the insurance good.


Special Agent, &c.” N. Y. SUPREME COURT, GENERAL TERM, for $50.00.

The insured, S., then gave M. his note FOURTH DEPARTMENT.

The defendant's policy was a few days

later sent to De V., in pursuance to above.

MECHANICS' LIEN. De V. refused to deliver same to plaintiff N. Y. SUPREME COURT, GENERAL TERMor her husband, and plaintiff and her hus

FOURTH DEPARTMENT. band offered to pay the note. The insured

Nellis, respt., v. Bellinger, applt. at this time was sick, and in the fall of

Decided January, 1876. 1873 died of consumption. There was a judgment for plaintiff for When the owner of land permits the

construction of a building on his $2,000, &c.

land occupied by another, and for M. was the general agent for defendant

another's benefit, the statute permits a in this State, and was particularly en lien by a mechanic or person furngaged in taking up the old H. & Co. poli

ishing material. cies.

One B. was the owner in fee of 40 acres Lyman & James for applts.

of land, and about 15 years ago gave to E. W. Gardner for respt.

his son the use of said 40 acres so long as Held, That the agreement above was he should use same and pay taxes. The properly considered by the judge at cir- son proceeded to erect a dwelling house cuit as constituting an agreement binding thereon, and plaintiff performed work on upon detendant to issue to Shaw a new the house and thereafter regularly filed a policy. Such an agreement constituted in mechanic's lien thereon for such labor. and of itself in legal effect from its date a The father, B., it was proved, lived near policy of insurance, or imposed upon the the house in question, frequently assisted defendant the duty of issuing a policy in its construction, knew that plaintiff thereon in proper form. It had no con- was working on it, and in fact was around nection with the H. Co. policy. The old the house nearly every day. The son policy may have constituted an induce- made all the contracts for labor in his ment, but not in any sense a considera- own name, &c., and the son hired plaintion. The consideration for the new tiff and plaintiff charged his labor to the policy was the note of S., and it must be son. held that this note was received in pay There was a judgment for the plaintiff. ment of new premium. This note was Earl, Smith & Brown for applt. made at the sime time as the agreement, J. A. & A. B. Steele for respt. and was not given for any pre-existing

Held, That the evidence clearly shows debt.

that defendant was willing and consented That the non-payment of the note at to the construction of the house on his maturity did not avoid the policy. The

land and this was a sufficient consent uncontracts were independent of each other. der the statute, and the fact that the deThe defendants had an ample remedy at fendant gave such implied consent under law upon the note, and it appears that

an impression that there was no liability payment of the note was tendered to de

on him made no difference. Ils mistake fendant's agent, who had the same for col- of law cannot affect the rights of others. lection.

That the statute now gives a lien as There was no clause in the policy that well where the owner of land consents to the same should be void, unless the note the erection of a structure upon it as was paid, hence policy was not void.

when he contracts directly for its Judgment affirmed.

construction, and the consent of such Opinion by Smith, J.; Mullin, P. J., owner may be prored by the fact that and Gilbert, J., concurring.

he entered into such contract or by other acts and circumstances as well as

by direct evidence. One who takes the 28th, 1870, was rejected solely upon the benefit of the labor or property of another ground that the signature to it of “J. F. in improvements on his land subjects the Moffatt, Cashier,” did not bind the bank. land to a lien for the value of such labor This was error. It was proved that Mofor property.

fatt was Cashier of the bank, and that the That it is not necessary that the con contract was signed by him by the direcsent required by the statute should have tion of the president of the bank, in the entered into the consideration or in some course of the transaction in which the way induced the acts of lienor. The bank became the owner of the note. His statute contains no such qualification. act purported to have been done on beJudgment affirmed.

half of the bank, and is binding upon it, Opinion by Gilbert, J.; Mullin, P. J. upon the ground that it was within the and Smith J., concurring.

scope of the authority conferred upon
him (Bank of Genesee v. Patchen Bank.

19 N. Y., 312), and because, also, the

bank necessarily ratified the whole transN. Y. SUPREME COURT-GEN'L TERM action by availing itself of the note which FOURTH DEPT.

formed a part of it. A party will not be Merchants’ Bank, respt. v. The Meyers permitted to avoid his agent's negotiations Steel and Wire and Iron Co., applt.

as to part of a transaction, and disavow Decided January, 1876.

them as to the residue. (How. on Fraud,

144; Story on Ag., $ 250.) Where a contract is signed by "the

The judgment must be reversed, and a cashier," and it is found that he so signed under the direction of the new trial granted, with costss to abide the president of the bank, and his act event. purported to be on behalf of the Opinion by Gilbert, J.; Mullin, P. J., bank, the bank is bound.

and Smith, J., concurring. A party cannot avoid his agent's acts

as to part of a transaction and avail
himself of them as to the residue. SUMMARY PROCEEDINGS.
This was an action on a note.

On the trial an agreement dated Sept.

FIRST DEPT. 28, 1870, made simultaneously with the note in suit and signed by the cashier of

Paine, respt. v. The Rector, &c., of the bank as “J. F. M., Cashier," was offered Trinity Church, applt. in evidence and rejected on the ground

Decided March 6, 1876. that J. F. M., Cashier, could not bind the Covenants in a lease that if lessee keeps plaintiff.

his covenants lessor will, at expiraThe real contract or agreement related tion, pay lessee value of any buildto the note in suit, and as defendant

ings that he may erect on demised claims, controled as to terms of payment

property, do not prevent lessor from

instituting summary proceedings and time, &c. It was signed at the same

against lessee for non-payment of time thé note was, and was signed by or rent. der of the president of plaintiff. There

Appeal from order at Special Term conwas judgment for plaintiff.

tinuing injunction: C. G. Myers for applt.

Defendants, in 1812, leased certain lots B. Winslow for respt.

of land in New York City to Jacob de la Held, The contract dated September Montaguie for sixty years, granting to the

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lessee the privilege of removing all mate- resort to an action for rent or to ejectrials or any buildings within ten days ment. after the expiration of the term, but not Plaintiff defaulted in the payment of at any time thereafter.

his rent, and so failed to perform the coveAt the expiration of the term in 1872,the nants of the leases. He continued his delots were let to plaintiff by two leases, at a fault until, by the terms of the leases, the yearly rent amounting to $12,500, subject right of re-entry had accrued. to the lawful rights of all persons claim Defendant is seeking to enforce the ing under the former lease to De la Mon- remedy given him, as landlord, by the taguie. Each lease contained a proviso for leases, upon the occurrence of such dere-entry for non-payment of rent, also a fault. clause to the effect that if the lessee erects The statute gives the right to proceed buildings thereon, only such as are al summarily against a tenant for years, lowed by the law in respect to build- whenever he holds over without permission ings within the fire limits of the city, and after default in the payment of rent. “shall, during the whole of the said time, It is difficult to see why the process is well and faithfully keep all and every the not applicable to this case. covenants and agreements herein con The fact that by the covenants of the tained,” then, at the expiration of the lease the plaintiff may have certain favorterm, the lessor will pay the full valuation able rights at the expiration of the term, of the buildings standing on the lots, or some eighteen years hence,cannot be urged grant a new lease.

as an excuse for the breach at the present On the 1st of May, 1875, six months time of the principal covenant on his part, rent became due, but was not paid, and or as a legitimate reason why the landlord on the 29th of May, 1875, resort was had should not be allowed the remedies proto summary proceedings under “ The vided for him by statute. Landlord and Tenant Act,” to remove the And such rights of plaintiff depend lessee (plaintiff herein). Plaintiff brings altogether upon the faithful performance this action to restrain defendants from of his covenants. further prosecuting the dispossess pro It is difficult to see how his present receedings. Plaintiff claims that the build- fusal to pay the rent due puts him in a poings now on the lot are worth $40,000. sition to enforce the covenants of his landPlaintiff has neither paid, nor offered to lord, which are to be performed in futuro, pay the rent, since the same became due. and then only upon plaintiff having kept

The court, at Special Term, granted the the covenants, which he admits he has injunction,

broken. C. Fine for respt.

The length of the term of the leases S. P. Nash for applt.

furnishes no suggestion against the sumE On appeal. Held, That the real ques- mary remedy, they are still leases for years. tion in this case is, whether the provisions

The right to re-enter reserved in the of the lease in respect to the payment by leases is not subject to any adjustment for defendants to plaintiff, at the end of the the value of buildings or improvements term of the full value of the buildings, upon the lots, but accrues upon a default which may be then on the lots, and in re- of ten days in the payment of the rent, spect to the granting of new leases of the and is then absolute, and may be enforced lots, can have the effect of taking the case independently of any of the provisions of out of the statute authorizing summary the lease in respect to renewals or comproceedings, and compel the landlord to pensation at the end of the term.

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