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.

N. Y. COURT OF APPEALS. Boos, respt. v. The World Mutual Insurance Company, applt.

Decided February 22, 1876.

Whether or not a disease is "serious" within the meaning of a life insur ance policy is a question of fact for the jury.

The General Term has no power to set aside a verdict as against the weight of evidence upon an appeal from the judgment only. A motion for that purpose can only be made at Special Term or Circuit, and must be brought up on an appeal from the order thereon.

This was an action upon a policy of life insurance brought by plaintiff as assignee thereof, and to recover back an annual premium paid by said assignee after the death of the assured, but before it was known to plaintiff or defendant. The defence was a breach of warranty in that that the deceased answered falsely certain questions in the application. Among others were two questions, one whether he had had any of certain specified diseases, "or any serious disease," and another whether during the last seven years he had had any severe sickness or disease, both of which were answered in the negative. The application was made in 1870, evidence was given that in 1865 the deceased had an attack of pneumonia which lasted ten days, and that in 1863 or 1865 he had a sun stroke which laid him up for a few days. Neither of these diseases were mentioned in said questions. De

answered falsely any question in the ap-
plication, whether he knew this answer to
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 from the jury was not error, that it was a question of fact for the jury to determine whether the diseases proved were severe within the meaning of the policy, and whether the sunstroke was within seven years.

A motion was made for a new trial on the judge's minutes, which was denied.

Defendant claimed that the General

Term erred in holding that it could not set aside the verdict as against the weight of the evidence, the appeal being from the judgment only.

Held, no error: That the appeal brought up questions of law only (Code, § 348); that the only mode in which the General Term could acquire jurisdiction to review a case upon the facts when the trial is by jury, is by an appeal from an order granting or refusing a motion for a new trial on the evidence, which can only be made at the Circuit or at Special Term. (Code, § 265.)

On trials by jury the only subjects of exception are rulings at the trial. A motion for a new trial is a proceeding subsequent to the trial, and an order made thereon is reviewable only by appeal.

Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed. Opinion by Rapallo, J.

PRACTICE.

AMENDMENT.

N. Y. COURT OF APPEALS.
In re Petition of Ingraham.
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 questions were proved false. This was de

order its remittitur amended so as to state that the order of affirmance

is without prejudice to an application by the appellant to the court below to re-open the case.

This was a motion by the petitioner for the amendment of the remit titur so as to allow him a re-hearing in the court below, or to renew his application (which was to set aside an assessment) on further proofs. The motion was founded upon affidavits to the effect that the defect of proof upon which this court based its judgment of affirmance could be supplied, and that the point upon which the case was decided in this court was not taken in the court below. The case was decided in the court below on the ground that the land claimed by the petitioner, and through which a sewer had been constructed, had been dedicated to the public. When the case came to this court the point was taken that the proofs failed to show that any part of the sewer was on the land claimed by the petitioner, or that the owner of the land had not consented to its being placed there. This point was found to be well taken, and the question of the dedication of the land as a street was not raised or passed upon by this court.

Held, That it is beyond the province of this court to grant the amendment desired, but as it is proper that the petitioner should have an opportunity to put his case in such shape as that the question of dedication may be passed upon, ordered that the remittitur be amended so as to show that this questlon was not passed upon, and to state that the affirm ance of the order is without prejudice to an application by the appellant to the court below to re-open the case and allow the parties a rehearing on further proofs, or, if the petitioner desires, to a new application.

Per curiam opinion.

Shaw, respt. v. The Republic Life Insurance Company, applt.

Decided January, 1876.

An agreement to issue a policy of life insurance is good, although the premium was paid by note, and the note was not paid at maturity, where the policy contains no condition avoiding policy unless the note is paid.

In 1868 the Hahneman Life Insurance

Company insured the life of plaintiff's husband for $2,000, and the policy was for plaintiff's benefit, and up to September, 1872, plaintiff's husband paid the premiums thereon, when, in that year he neglected to pay, and the policy, by its terms, lapsed. In the fall of 1871 the Hahneman Life Insurance Company sold out to defendant, and defendant reinsured all their risks.

In November, 1872, after plaintiff's policy had lapsed, M. & DeV., a general and local agent of defendant, called at the house of plaintiff's husband and wanted him to take a new policy in defendant, saying that they were engaged in taking up old policies in the H. Co. and reissuing, new ones in defendant. M. told plaintiff's husband that his policy in the H. Co. had lapsed, and that he would try and get defendant to issue a new one, and plaintiff's husband then gave M. his note for $56.00, and signed an agreement, forms for which M had, as follows, viz:

"Received November 26, 1872, of R. B.

Shaw, policy No. 2,705, issued by H. Co., &c., now in force, dated, &c., for amount $2,000, annual premium payable on September 8, each year, in exchange for which the R. Co. (defendant) will issue its policy of same amount and deliver same in a reasonable time, and in the meantime keep the insurance good.

F. E. M., Special Agent, &c." The insured, S., then gave M. his note

N. Y. SUPREME COURT, GENERAL TERM, for $56.00.
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 TERM

or her husband, and plaintiff and her husband offered to pay the note. The insured at this time was sick, and in the fall of 1873 died of consumption.

FOURTH DEPARTMENT.

Nellis, respt., v. Bellinger, applt.
Decided January, 1876.

There was a judgment for plaintiff for When the owner of land permits the $2,000, &c.

M. was the general agent, for defendant in this State, and was particularly engaged in taking up the old H. & Co. policies.

Lyman & James for applts.
E. W. Gardner for respt.

Held, That the agreement above was properly considered by the judge at circuit as constituting an agreement binding upon defendant to issue to Shaw a new policy. Such an agreement constituted in and of itself in legal effect from its date a policy of insurance, or imposed upon the defendant the duty of issuing a policy thereon in proper form. It had no connection with the H. Co. policy. The old policy may have constituted an inducement, but not in any sense a consideration. The consideration for the new policy was the note of S., and it must be held that this note was received in payment of new premium. This note was made at the same time as the agreement, and was not given for any pre-existing debt.

That the non-payment of the note at maturity did not avoid the policy. The contracts were independent of each other. The defendants had an ample remedy at law upon the note, and it appears that payment of the note was tendered to defendant's agent, who had the same for col

lection.

There was no clause in the policy that the same should be void, unless the note was paid, hence policy was not void. Judgment affirmed.

construction of a building on his land occupied by another, and for another's benefit, the statute permits a lien by a mechanic or person furnishing material.

One B. was the owner in fee of 40 acres of land, and about 15 years ago gave to his son the use of said 40 acres so long as he should use same and pay taxes. The son proceeded to erect a dwelling house thereon, and plaintiff performed work on the house and thereafter regularly filed a mechanic's lien thereon for such labor.

The father, B., it was proved, lived near the house in question, frequently assisted in its construction, knew that plaintiff was working on it, and in fact was around the house nearly every day. The son made all the contracts for labor in his own name, &c., and the son hired plaintiff and plaintiff charged his labor to the son.

There was a judgment for the plaintiff.
Earl, Smith & Brown for applt.
J. A. & A. B. Steele for respt.

Held, That the evidence clearly shows that defendant was willing and consented. to the construction of the house on his land and this was a sufficient consent under the statute, and the fact that the defendant gave such implied consent under an impression that there was no liability

on him made no difference. II.s mistake of law cannot affect the rights of others.

That the statute now gives a lien as well where the owner of land consents to the erection of a structure upon it as when he contracts directly for its construction, and the consent of such

Opinion by Smith, J.; Mullin, P. J., owner may be proved by the fact that

and Gilbert, J., concurring.

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

28th, 1870, was rejected solely upon the ground that the signature to it of "J. F. Moffatt, Cashier," did not bind the bank. This was error. It was proved that Moffatt was Cashier of the bank, and that the

by direct evidence. One who takes the benefit of the labor or property of another in improvements on his land subjects the land to a lien for the value of such labor or property. That it is not necessary that the con-contract was signed by him by the direcsent required by the statute should have entered into the consideration or in some way induced the acts of lienor. The statute contains no such qualification. Judgment affirmed.

tion of the president of the bank, in the course of the transaction in which the bank became the owner of the note. His act purported to have been done on behalf 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.

AGENCY.

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 trans

N. Y. SUPREME COURT-GEN'L TERM action by availing itself of the note which

FOURTH DEPT.

Merchants' Bank, respt. v. The Meyers Steel and Wire and Iron Co., applt.

Decided January, 1876.

Where a contract is signed by "the cashier," and it is found that he so signed under the direction of the president of the bank, and his act purported to be on behalf of the bank, the bank is bound.

A party cannot avoid his agent's acts as to part of a transaction and avail himself of them as to the residue. This was an action on a note.

On the trial an agreement dated Sept. 28, 1870, made simultaneously with the note in suit and signed by the cashier of the bank as "J. F. M., Cashier," was offered in evidence and rejected on the ground that J. F. M., Cashier, could not bind the plaintiff.

The real contract or agreement related to the note in suit, and as defendant claims, controled as to terms of payment and time, &c. It was signed at the same time the note was, and was signed by order of the president of plaintiff.

was judgment for plaintiff.

C. G. Myers for applt.

B. Winslow for respt.

There

formed a part of it. A party will not be permitted to avoid his agent's negotiations as to part of a transaction, and disavow them as to the residue. (How. on Fraud, 144; Story on Ag., § 250.)

The judgment must be reversed, and a new trial granted, with costs to abide the

event.

Opinion by Gilbert, J.; Mullin, P. J., and Smith, J., concurring.

SUMMARY PROCEEDINGS.
N. Y. SUPREME COURT-GEN'L TERM.
FIRST DEPT.

Paine, respt. v. The Rector, &c., of
Trinity Church, applt.

Decided March 6, 1876. Covenants in a lease that if lessee keeps his covenants lessor will, at expiration, pay lessee value of any buildings that he may erect on demised property, do not prevent lessor from instituting summary proceedings against lessee for non-payment of

rent.

Appeal from order at Special Term continuing injunction.

Defendants, in 1812, leased certain lots of land in New York City to Jacob de la

Held, The contract dated September Montaguie for sixty years, granting to the

ment.

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

At the expiration of the term in 1872, the lots were let to plaintiff by two leases, at a yearly rent amounting to $12,500, subject to the lawful rights of all persons claiming under the former lease to De la Montaguie. Each lease contained a proviso for re-entry for non-payment of rent, also a clause to the effect that if the lessee erects

buildings thereon, only such as are allowed by the law in respect to buildings within the fire limits of the city, and "shall, during the whole of the said time, well and faithfully keep all and every the covenants and agreements herein contained," then, at the expiration of the term, the lessor will pay the full valuation of the buildings standing on the lots, or grant a new lease.

On the 1st of May, 1875, six months rent became due, but was not paid, and on the 29th of May, 1875, resort was had to summary proceedings under "The Landlord and Tenant Act," to remove the lessee (plaintiff herein). Plaintiff brings this action to restrain defendants from further prosecuting the dispossess proceedings. Plaintiff claims that the buildings now on the lot are worth $40,000. Plaintiff has neither paid, nor offered to pay the rent, since the same became due. The court, at Special Term, granted the injunction.

C. Fine for respt.

S. P. Nash for applt.

Plaintiff defaulted in the payment of his rent, and so failed to perform the covenants of the leases. He continued his default until, by the terms of the leases, the right of re-entry had accrued.

Defendant is seeking to enforce the remedy given him, as landlord, by the leases, upon the occurrence of such default.

The statute gives the right to proceed summarily against a tenant for years, whenever he holds over without permission after default in the payment of rent. It is difficult to see why the process is not applicable to this case.

The fact that by the covenants of the lease the plaintiff may have certain favorable rights at the expiration of the term, some eighteen years hence,cannot be urged as an excuse for the breach at the present time of the principal covenant on his part, or as a legitimate reason why the landlord should not be allowed the remedies provided for him by statute.

And such rights of plaintiff depend altogether upon the faithful performance of his covenants.

It is difficult to see how his present refusal to pay the rent due puts him in a position to enforce the covenants of his landlord, which are to be performed in futuro, and then only upon plaintiff having kept the covenants, which he admits he has broken.

The length of the term of the leases furnishes no suggestion against the sum

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.