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the policy based upon such answers “engaged in or connected with void. 90 N. Y., 450.

the manufacture or sale of any If an insurance policy in plain beer, wine or other intoxicating and unambiguous language makes liquors,” and replied “No.” The the observance of an apparently policy in suit contained, among immaterial requirement the con- others, this provision : “This poldition of a valid contract, neither icy is issued and the same is accourts nor juries have the right to cepted upon the following express disregard it, or to construct by im- conditions and agreements: that plication or otherwise a new con- the same shall cease and be null tract in the place of that deliber- and void and of no effect ately made by the parties. 54 N. if the representations made in the Y., 253; 61 id., 591; 87 id., 69; 90 application for this policy, upon id., 450. Such contracts are only the faith of which this contract is subject to construction when upon made, shall be found in any rethe face of the instrument it ap- spect untrue.” The insured died pears that its meaning is doubt- Nov. 15, 1878, immediately before ful or its language ambiguous or a second quarterly premium beuncertain. May on Ins., 172; 2 came due. It appeared that he Parsons on Cont., 500; 1 H. Blk., had been engaged in keeping a 494, 569; Willes R., 332; Addison hotel from May, 1874, until March, on Cont., 165; 9 Cl. & Fin., 565. 1877, and during that period he

In considering the language of regularly and systematically sold an insurance contract the words wines and liquors in bottles of of a promise are to be regarded as various sizes bearing the name of those of the promisor, while those his hotel blown into the glass to of a representation on which the such of his guests as desired them. promise is founded are the words He had a wine or liquor room in of the promisee and are to be taken which was stored a large supply of most strongly against the party wines and liquors, and that while using them. May on Ins., $ 175. he kept the hotel he applied for

Plaintiff's application contained and paid and received from the a series of questions as to his gen- State and National Governments eral business and occupation dur- licenses authorizing him to carry ing the preceding ten years, which on the business of selling wine and he was required to carefully spec- liquors at retail to be drank upon ify. He stated that he had been his premises. It also appeared engaged in the real estate business that he kept no bar and did not and as a grain dealer, and in reply sell to persons who were not his to the question whether the busi- guests. It appeared from repeated


. ness was his own or whether he answers made by the insured in worked for other persons and in applications for insurance to other what capacity, he replied it was companies to similar questions, his own.

He was then asked made within three weeks before whether he was now or had been the application for the policy in


suit, that he had stated that he There was no evidence that the had kept a hotel for three years in insured had been engaged in the which liquor was sold in packages. business of real estate or as a grain The court refused to pass upon dealer. He had made sworn statethe question whether the facts ments to the contrary a short time constituted a breach of warranty, before his application for insurand left it to the jury to say ance was made to defendant, and whether the sales of liquor proved there was proof that he had been were sales within the intent and constantly employed in other vomeaning of the contract.

cations. Held, Error; that if any ques- Held, That his answers to the tion was presented it was one of questions relating to his business law, 25 N. Y., 361 ; 67 id., 563; and occupation were evasive and that the false answer of the in- untrue, anduponthe whole evidence sured being a warranty invalidated required the dismissal of the comthe policy ; that it could not be plaint; that the evidence given claimed that the insured did not overcame the presumption of truth comprehend the question, or that existing in favor of his representathe question was not capable of a tions and made a case calling for precise, definite and categorical

categorical affirmative evidence to overthrow

it. Montor v. Am. L. Ins. Co., 111 While the sworn statements of U. S., 335, distinguished.

the insured as to his business and When the terms and language occupation did not constitute an of a contract are ascertained its estoppel against plaintiffs as to meaning and intent present ques- | the truth of such statements, they tious of law only, and it is the did constitute evidence of the facts duty of the court and not of the stated, and in the absence of counjury to determine and declare what tervailing evidence became conthat is. 2 Pars., 492; 51 N. Y., clusive upon his representatives 431; 52 id., 191; 67 id., 563; 69 id., as to such facts. 470; 3 Cranch, 180; 13 Gray, 86; If the proof of a fact is so pre29 N. J. L., 371; 7 S. & R., 373; 3 ponderating that a verdict against Binn., 329; Pars. on Con., 492; it would be set aside by the court Add. on Con., 165.

as contrary to the evidence, it is It seems that no questions af- the duty of the court to direct a fecting the interpretation of con- verdict. 8 N. Y., 67; 2+ id., 433; tracts can properly be submitted 45 id., 509; 6+ id., 427; 69 id., 392. to a jury except those arising upon It is not enough to authorize conflicting evidence as to their the submission of a case to the terms, or when extrinsic evidence jury that there is some evidence. raises some doubt over the iden- A scintilla of evidence tity of the subject matter or of mere surmise to the contrary is the claimants thereunder. Add. not sufficient. 59 N. Y., 366; on Con., 165.

3 C. B., N. S., 146; 60 N. Y.,



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136; 88 id., 667; 91 Penn. St., 200; and lived with him about a year L. R., 4 Exch., 39; 14 Wal., 442; and a half, and had one child by 22 id., 120; 94 U. S., 284; 104 id., | him, when they separated, as she 553; 21 Fed. Rep., 159; 71 N. C., claims, because he abused her, 431.

and have not cohabited since. G. Judgment of General Term, at the time of his marriage with affirming judgment for plaintiffs respondent had a living wife whom on verdict, reversed, and new trial he had married in 1870, and with ordered.

whom he had cohabited and had a Opinion by Ruger, Ch. J. All child and which marriage had concur, except Danforth, J., dis- never been annulled or dissolved ; senting, Miller, J., not voting, nor has the marriage of G. and reand Finch, J., taking no part. spondent been annulled.

Petitioner claims that, as such MARRIAGE. SURROGATES.

marriage with G. has not been an

nulled, the marriage with decedent SURROGATES' COURT. OSWEGO

was “absolutely void” under the COUNTY.

R. S., Chap. 6, title 1, art. 1, § 5; In re estate of William S. Hether- / that notwithstanding said statute ington, deceased.

respondent could not contract a

second legal marriage until her Decided May, 1886.

former marriage was dissolved by On an application to revoke letters issued

a decree of a competent court havto the widow of deceased the surrogate has power to pass upon the validity

ing original jurisdiction to dissolve of a former marriage of such widow the marriage relation between where the question affects the validity of husband and wife, and that this her marriage with the deceased.

court has no jurisdiction to decide Decedent's widow was formerly married to

that matter even in this proceedone G. from whom she separated. At the time of said marriage G. had another ing. wife living. In neither case has the mar- Respondent claims that, G. riage been annulled. Held, That the

having a lawful living wife at the marriage to G. was absolutely void; that

time she was married to him, her a decree dissolving it was not necessary to the legality of her marriage to dece. marriage to him was “absolutely dent and that she was the legal wife of void" under the above statute, decedent.

and therefore, it being so declared Application by an heir-at-law by said statute, she was at perfect to have the letters of administra- liberty to enter into a legal martion heretofore issued to Alice riage with decedent. Hetherington as the widow of de- C. H. David, for petitioner. ceased revoked.

Flowe & Rice, for respt. It appears that said Alice mar- Hell, That the Surrogates ried decedent in August, 1883, and Court has power to pass upon the lived with him until his death. validity of that marriage in this Prior to such marriage and in proceeding; it is one of the “inci1878, she was married to one G. dental powers” possessed by a Sur



rogates Court provided for by subd. cover damages received by plain11, $ 2481, Code Cir. Pro., to carry tiff through the alleged negligence into effect the power expressly of defendaut. It appeared that in conferred on it by $ 2472, subd. 2. 1877 plaintiff was defendant's yard

That respoudent's marriage with master at Syracuse, and as such it G. was absolutely void and that was his duty to superintend and aid she was the legal wife of decedent in the shifting of cars, and to couand is his widow and entitled ple and uncouple cars. At the time to her letters of administration. plaintiff was injured the shifting That a decree dissolving respond- engine was attached to twelve cars ent's marriage with G. was not and after drawing them a short necessary to the legality of her distance upgrade it became stalled, marriage with decedent.

and under plaintiff's direction it Prayer of petitioner denied, but was backed so as to enable him to without costs, as the relations of uncouple some of the cars.

For respondent with the two men have this purpose he went between two been shrouded in so much public while they were moving doubt as to invite the proceeding. slowly backward, and his foot Opinion by David, S.

caught under a brake-beam and he was dragged about forty-five

feet, when a car wheel ran over MASTER AND SERVANT. one of his legs and crushed it so NEGLIGENCE.

as to render amputation necessary. N. Y. COURT OF APPEALS.

Plaintiff claimed that the engine

was out of repair and insufficient Bajus, respt., v. The S., B. & N.

for the use to which it was deY. RR. Co., applt.

voted. He alleged first that the Decided Oct. 12, 1886.

flues of the engine were foul and Plaintiff, while engaged in uncoupling cars

somewhat stopped up. The only in defendant's employ, caught his foot in effect of this was that steam was a frog, and signaled the engineer to stop, generated less rapidly and the but the engine, being defective, could not be stopped in time, and plaintiff was run

power of the engine was thus diover and lost his leg. There was no

minished. Second, that the main proof that the engineer heard the first valve in the steam chest leaked. signal, but it appeared that as soon as This simply diminished the power he heard it he easily reversed the engine and it did not

of the engine. Third, that the throtthan five feet afterward. Held, That

tle valve leaked. This would prethe engine was

dangerous vent the steam from being entirely one; that it did not cause the injury, shut off, and an engine with such a but simply failed to rescue him from the danger in which he was placed ; that

defect may move from its position defendant was not negligent in putting when placed at rest unless blocked. it to the service in which it was employed No leakage can occur when the and that plaintiff could not recover. throttle valve is

open, but

, Reversing S. C., 20 W. Dig., 399.

such a defect frequently makes This action was brought to re- it more difficult to throw over the





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lever and thus reverse the engine. Also held, That defendant was
Plaintiff claimed that when his not bound to restore this engine
foot was caught he immediately to the power it originally pos-
signaled the engineer to stop, and sessed, as it owed no duty to pur-
if the throttle valve had been in chase a new engine of greater
order the engineer could have power than this then possessed.
more readily reversed the en. 126 Mass., 84; 12 R. I., 112 ; 69
gine and thus arrested its mo- Mo., 34; 33 Mich., 133; 50. Ga.,
tion before his leg was crushed. 465; 32 Md., 411; 103 Penn., 124.
There was no proof that the en- Judgment of General Term, af-
gineer saw or heard plaintiff's sig. firming judgment on verdict for
nal when he first gave it. The plaintiff, reversed, and new trial
only person who was on the en- ordered.
gine and saw what took place was Opinion by Earl, J. All concur,
called as a witness by plaintiff, except Danforth and Andrews,
and testfied that when the engineer JJ., dissenting.
heard plaintiff's signals, he at once
threw over the lever and reversed
the engine and that he did this

quickly and without any difficulty, N. Y. SUPREME COURT. GENERAL
and that thereafter the engine

TERM. FIRST DEPT. passed backward only about five feet. It appeared that plaintiff

The People ex rel. Sidney Dillon

et al., v. Edward Gilon et al., was familiar with the capacity and power of the engine.

composing the Board of Assessors Louis P. Marshall, for applt.

of the city of N. Y. William P. Goodelle, for respt.

Decided Oct. 15, 1886. Held, That plaintiff was not en- The tunnels under Fourth avenue in the titled to recover; that the engine city of N. Y., owned by the railroad was not a dangerous one and did

companies using the same, and the parks

in said avenue upon the top of said tunnot cause the injury, that having

nels and around the openings therein been caused by the brake-beam

made for ventilation, are not liable to asaccidentally catching plaintiff's sessment for expense of paving said foot, the engine simply failing to rescue him from the danger in Certiorari to review an assesswhich he was placed. As defend- ment for the expense of improving ant had no reason to anticipate and paving Fourth avenue from such an accident, and was not 72d street to Ninety-ninth street, bound to have an engine there in the city of N. Y. Under Chap. adequate to avert its consequences, 702 Laws of 1872, certain railway there was

negligence on companies were authorized to, and defendant's part in putting this did, construct and maintain tunengine to the service in which it nels under said avenue for their was employed. 98 N. Y., 562; 101 tracks to pass through. Said act

. id., 396, 520.

authorized the making of openings




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