ed beyond what was necessary for that purpose, or that he received any injury by resisting. There was also evidence showing that the train was in motion at the time.

The bill charges the defendant with acts of extreme and repeated cruelty inflicted upon the person of the complainant, and also alleges desertion for the space of two years.

To the bill the defendant put in an answer in which he de ied each and every charge therein contained. He also filed a cross bill, in which he charged the complainant with desertion, wito

Held, That under the circumstances, it was questionable whether the request to charge was applicable, that if it was, it was sufficiently covered by the charge already made; that if the train was in motion, the law of self-preservation out cause, for more than two years, upjustified plaintiff in repelling any at- on which ground he he prayed for a ditempt to eject him which would endan- vorce. To the cross-bill the complainger his life or subject him to great haz- ant put in an answer denying the ard and peril. 23 N. Y., 343. Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y., 295, distinguished.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Miller, J.

charges therein contained. Replications having been filed, a trial on both bill and cross-bill was had before a jury, which resulted in a verdict in favor of the complainant in each of the cases presented by her bill, and against the defendant on the cross-bill. The court, on motion, set aside the finding in the charge of desertion, but sustained the verdict as to extreme and repeated cruelty. A decree was therefore rendered dissolving the marriage and dismissing the cross-bill; to reverse which this appeal has been brought by the defendant in the original bill.

In an action for divorce on the ground of cruelty, bruises and marks observed and sworn to by witnesses are The complainant and defendant were competent testimony in confirmation married in 1855, and resided together of the evidence given by the complainant. in Cook county until 1851, when the It is the province of the jury to recon-wife left the home of her husband, and cile the conflict of proof, and deter- they have not since resided together. mine from all the evidence whether The complainant claims that the

the truth is on the side of the com

plainant or of the defendant; and cause of her leaving was on account of when this has been done, free from repeated acts of personal violence re passion and prejudice, and the rec- ceived from her husband; while, on the ord contains evidence sufficient to other hand, it is claimed she was well sustain or justify the result, the ver- treated, and deserted her husband of dict must be regarded as final. Evidence of complainant's good char. her own accord, and not through any acter, her character not being at is- improper treatment on his part.

is inadmisible.

This was a bill for divorce brought by Catharine Berdell against Nicholas Berdell, her husband.

The complainant, in her evidence, testifies to numerous acts of personal violence on the part of her husband, which were unjustifiable and without

cause or provocation; and, if her evi- final. As was said (Coursey v. Courdence be true, there can be no doubt sey, 60 Ill. 186) the jury had the witbut a clear case of divorce was estab-nesses before them, and have passed uplished. But, independent of her evi- on the weight of evidence. dence, on several occasions the marks of violence were discovered on her person by her neighbors; often she complained of having received blows from her husband.

It is, however, argued that the court erred in permitting the complainant to introduce evidence of good character in the neighborhood where she resided.

Held, error. That while it is true Held, That while this character of the defendant introduced, on the trial, evidence is not as satisfactory as if wit- evidence of specific acts of the comnesses had been produced who saw the plainant tending to reflect upon her blows given, yet the bruises and marks character for sobriety and modest, observed and sworn to were competent peaceable behavior, yet, under the rule testimony in confirmation of the evi-announced by Starkie, we do not underdence given by the complainant.

stand that she had the right to rebut by

It was also proven, that on two occa-proof of general good character. Her sions, when the complainant returned general good character was not in issue. to the house of the defendant, he al- But it was "of no intrinsic strength or lowed her to be assaulted in his weight;" and for that very reason it presence; and in his own house, on one could do the defendant no harm. occasion, as the evidence shows, pushed down stairs; and on another, her hair was torn from her head, and her clothing badly injured by an inmate of the

Decree affirmed.
Opinion by Craig, J.

CONSIDERATION.

house, while, as one witness testifies, N. Y. SUPREME COURT. GENERAL TERM, the defendant held the complainant so she could not defend herself.

The defendant, in his evidence positively denied every and all acts of violence, and said that he never in any manner mistreated or abused the complainant, and testified to misconduct on her part, and introduced other evidence tending to establish the truth of his own.

Held, That it was the peculiar prov ince of the jury to reconcile the conflict of the proof, and determine from all the evidence whether the truth was on the side of the complainant or the defendant; and when this has been done, free from passion or prejudice, and the record contains evidence sufficient to sustain or justify the finding, the result of the verdict must be regarded

FOURTH DEPARTMENT.
George F. Barton, respt. v. Shelby
A. Harrington et al., applts.

Decided April, 1876.

The trouble and expense to which a party is subjected in following the directions of a contractor in respect to the time and place of filing his claim against a sub-contractor, is a sufficient consideration to support a promise on the part of the contractor to pay the debt of the sub-contractor. This action was commenced in a justice's court.

The plaintiff had judgment and there was an appeal to the county court, a new trial had, and judgment for the plaintiff.

The defendants appeal to this court.
The defendants made a contract to

build a railroad and sublet a portion the Union Trust Company, as receiver, of the work to others, who employed to pay over to plaintiffs an accumulathe plaintiff to labor for them. The tion of rents in its custody before any plaintiff, before his pay was due, pre-final judgment in the action as to the sented his claims for wages at the de- rights of the parties, on their underfendants' office, and was told by the taking to repay the same into court person in charge, one of the defend- if so ordered. ants, that the claim was all right and if

The rents were collected from prophe wished to have him or the contrac-erty to which defendant, when the actors holden for the same he should take tion was commenced, had the legal tithe papers to Naples and have them tle. His title thereto had been set aside filed in the company's office. That the company, defendants, were good for the debt, and will pay every dollar of it when due, on the 15th of February. The plaintiff did as directed. Briggs & Knox, for respt. E. B. Potter, for applt.

Held, That the promise of the defendant was a new one, formed on a new and independent consideration.

The judgment of the county court was right, and must be affirmed.

Opinion by Mullin, P. J.

POWER OF COURT. APPEAL.

N. Y. COURT OF APPEALS.

and his rights reduced to those of a mortgagee in possession. An accounting directed by the decision is now progressing.

The Union Trust Company had been appointed receiver of the rents and profits of the property on plaintiff's motion, defendant consenting.

Stephen P. Nash, for applt.
Wm. R. Martin, for respts.

Held, That the rents disposed of by the order, having been paid into court. by consent of defendant, were subject to its control and direction, and it therefore rested in the power of the court to determine what disposition should be made of them pending the accounting.

Platt et al., ex'rs., &c,, respts. v. It had power to make plaintiff's receivPlatt, applt.

Decided June 6, 1876.

er of the fund instead of the receiver originally appointed, and, in the exercise of its discretion, to award that they

Rents paid into court on application of plaintiff's and by consent of de- be paid over to the party to whom the fendant, are subject to its control judgment gave a right to them, subject and discretion, and the court has to the defendant's equitable rights uppower, in the exercise of its discre- on such terms as might be proper untion, to award that they be paid over der the circumstances. to the party to whom the judgment gave a right to them, subject to the rights of the other party. An order which, though involving a substantial right, is discretionary, is not appealable.

This is an appeal by defendant from an order of the General Term affirming an order of Special Term, directing

That even if the order involved a substantial right it was, notwithstanding, discretionary, and was therefore not appealable. 59 N. Y. 315.

Appeal dismissed.
Per curiam opinion.

MANDAMUS.

the society, was not eligible to office,

N. Y. SUPREME COURT. GENERAL TERM. and that his election was therefore a

FIRST DEPARTMENT.

Matter of Hebra Hased Va Emet.

Decided May 1, 1876.

nullity, called upon the President to
convene a meeting of the society for a
new election of Secretary. He de-.
clined to comply. They then applied
to this court for a writ of mandamus
to compel such an election.

Gratz Nathan, for applt.
Adolph L. Sanger, for respt.
On appeal.

To remove a duly elected officer of a society, because of alleged "ineligibility, the proper mode of proceeding is by quo warranto, and not by mandamus to compel a new election. Appeal from order of Special Term denying motion for mandamus. The Held, That the writ was properly Hebra Hased Va Emet (Society of denied. It was not the proper remedy Mercy and Truth) is a benevolent or for the alleged wrong. The opinion of ganization, whose object is the "secur- the court below, which we adopt, sets ing and performance of the rites and forth the reason clearly, as follows, ceremonies practiced among Israelites viz.: as respects the dead." By the By

That it is a case of plenarty, and the Laws of the society, "any seat-holder only mode of proceeding is by quo in the congregation Shearith Israel,' warranto (34 Eng. L. & E. 59; 7 Ad. not married contrary to the religious & E. 215).

laws of Israelites, may be elected a The charter of the society does not member of the society," but that any in terms declare the election of an unviolating such laws of marriage, or qualified person void, and that is the discontinuing their seats in the syn- test (1 M. & S., 76; 2 Burr., 1,016). agogue should forfeit their member- Hence Mr. Hendricks fills the office de ship. The officers, including the Sec-facto, until ousted by judgment at the rtary, were to be elected from among suit of the People, (6 Cow., 23). We the members, on the first Sunday of the are here asked, without hearing the Jewish month Tebeth, but if no elec-party to be affected, to adjudge that he tion then took place, the old officers is neither member nor officer, for the were to remain in office, until an elec- mandamus could not in any event issue, tion should be had some time in that unless the court was prepared to say month. that both of these questions were entirely free from doubt.

Isaac Hendricks held the office of Secretary during the past year, and at the election for this year, was reelected. Some days prior to this election he had discontinued his seat in the synagogue "Shearith Israel," though he still remained a member thereof, and he was not dismissed from the society Hebra, &c. Certain members of this society, claiming that by reason of his discontinuing his seat in the synagogue, he was no longer a member of

Mandamus denied.

Order of the Special Term affirmed. Opinion by Davis, P. J.; Brady and Daniels, JJ., concurring.

LIFE INSURANCE. . WAIVER.

N. Y. COURT OF APPEALS. Merseran, admrx. &c., respt., v. The Phoenix Mutual Lite Ins. Co., applt. Decided May 30, 1876.

Insurance companies doing business by previously and regularly signed reagencies are responsible for the acts ceipts. The judge left it to the jury of an agent within the general scope to say whether there had been a waiver of the business in his charge, and no limitation of his authority will be of payment of the premium.

binding on parties with whom he deals which are not brought to their knowledge.

Samuel Hand, for applt.

R. E. Andrews, for respt.

But where insured has knowledge of Held, (Church, Ch. J., Andrews the limitation of the agent's author and Miller, JJ., dissenting), error. ity, he is estopped from claiming That the authority of the agent that the agent could contract with him so as to change the terms of the policy or waive performance of its conditions.

being limited as to the receipt of the renewal premiums, and this being known to the insured, he was estopped from claiming that W. could, as agent of defendant, contract with him so as to change the terms of the policy or conditions; that to establish a waiver, dispense with the performance of its evidence was necessary to justify the belief that the company, by direct authority, enlarged the agent's powers or knowingly permitted him to act for ally conferred. 33 N. J., 487; 25 it beyond the scope of the power origi

Conn. 542.

This action was brought upon a poli cy of life insurance. The defense interposed was the non-payment of the semi-annual premium, due August 31, 1872. By the terms of the policy, the liability of the insurer ceased upon the failure of the insured to pay the renewal premiums at the office of the company, at Hartford, Conn., or to an agent of the company on his producing a receipt signed by the President or Secretary on or before the days at Also held, That insurance compa which they were payable. Plaintiff proved that in July, 1872, the insured nies, doing business by agencies, are resaw W., defendant's agent at Hudson, sponsible for the acts of the agent, saw W., defendant's agent at Hudson, within the general scope of the business N. Y., and offered to pay the premium intrusted to his care, and no limitations to become due Aug. 31, 1872, that W. declined to receive the money because of his authority will be binding on parhe had not the company's receipt, and ties with whom he deals which are not told the insured that he would keep 560; 51 N. Y, 117; 26 Id., 460; 57 brought to their knowledge. 20 Wall., him good with the company. W. was Barb., 519; 10 Abb. (N. S.), 166. defendant's local agent at Hudson, and was authorized to solicit insurance, receive and forward applications to the general managers at Albany, and on receipt of the policy, to deliver it and collect the premiums and renewal premiums, when he had the receipt of the

Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial granted. Opinion by Allen, J.

COMMON CARRIER. AGENT.

copany, and upon delivery of the N. Y. SUPREME COURT. GEN'L TERM.

same to the insured.

tained a notice to the

The policy con-
effect that the

FOURTH DEPARTMENT. Armstrong, applt. v. American Ex

agent was only entitled to receive the press Company, respt. semi annual renewal premiums upon Decided June, 1876.