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the policy based upon such answers void. 90 N. Y., 450.

If an insurance policy in plain and unambiguous language makes the observance of an apparently immaterial requirement the condition of a valid contract, neither courts nor juries have the right to disregard it, or to construct by implication or otherwise a new contract in the place of that deliberately made by the parties. 54 N. Y., 253; 61 id., 591; 87 id., 69; 90 id., 450. Such contracts are only subject to construction when upon the face of the instrument it appears that its meaning is doubtful or its language ambiguous or uncertain. May on Ins., 172; 2 Parsons on Cont., 500; 1 H. Blk., 494, 569; Willes R., 332; Addison on Cont., 165; 9 Cl. & Fin., 565.

In considering the language of an insurance contract the words of a promise are to be regarded as those of the promisor, while those of a representation on which the promise is founded are the words of the promisee and are to be taken most strongly against the party using them. May on Ins., § 175. Plaintiff's application contained a series of questions as to his general business and occupation during the preceding ten years, which he was required to carefully specify. He stated that he had been engaged in the real estate business and as a grain dealer, and in reply to the question whether the business was his own or whether he worked for other persons and in what capacity, he replied it was his own. He was then asked whether he was now or had been

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"engaged in or connected with the manufacture or sale of any beer, wine or other intoxicating liquors," and replied "No." The policy in suit contained, among others, this provision: "This policy is issued and the same is accepted upon the following express conditions and agreements: that the same shall cease and be null and void and of no effect if the representations made in the application for this policy, upon the faith of which this contract is made, shall be found in any respect untrue." The insured died Nov. 15, 1878, immediately before a second quarterly premium became due. It appeared that he had been engaged in keeping a hotel from May, 1874, until March, 1877, and during that period he regularly and systematically sold wines and liquors in bottles of various sizes bearing the name of his hotel blown into the glass to such of his guests as desired them. He had a wine or liquor room in which was stored a large supply of wines and liquors, and that while he kept the hotel he applied for and paid and received from the State and National Governments licenses authorizing him to carry on the business of selling wine and liquors at retail to be drank upon his premises. It also appeared that he kept no bar and did not sell to persons who were not his guests. It appeared from repeated answers made by the insured in applications for insurance to other companies to similar questions, made within three weeks before the application for the policy in

suit, that he had stated that he had kept a hotel for three years in which liquor was sold in packages. The court refused to pass upon the question whether the facts constituted a breach of warranty, and left it to the jury to say whether the sales of liquor proved were sales within the intent and meaning of the contract.

Held, Error; that if any question was presented it was one of law, 25 N. Y., 361; 67 id., 563; that the false answer of the insured being a warranty invalidated the policy; that it could not be claimed that the insured did not comprehend the question, or that the question was not capable of a precise, definite and categorical

answer.

Montor v. Am. L. Ins. Co., 111 U. S., 335, distinguished.

When the terms and language of a contract are ascertained its meaning and intent present questions of law only, and it is the duty of the court and not of the jury to determine and declare what that is. 2 Pars., 492; 51 N. Y., 431; 52 id., 191; 67 id., 563; 69 id., 470; 3 Cranch, 180; 13 Gray, 86; 29 N. J. L., 371; 7 S. & R., 373; 3 Binn., 329; Pars. on Con., 492; Add. on Con., 165.

It seems that no questions affecting the interpretation of contracts can properly be submitted to a jury except those arising upon conflicting evidence as to their terms, or when extrinsic evidence raises some doubt over the identity of the subject matter or of the claimants thereunder. Add. on Con., 165.

There was no evidence that the insured had been engaged in the business of real estate or as a grain dealer. He had made sworn statements to the contrary a short time before his application for insurance was made to defendant, and there was proof that he had been constantly employed in other vocations.

Held, That his answers to the questions relating to his business and occupation were evasive and untrue, and upon the whole evidence required the dismissal of the complaint; that the evidence given overcame the presumption of truth existing in favor of his representations and made a case calling for affirmative evidence to overthrow

it.

While the sworn statements of the insured as to his business and occupation did not constitute an estoppel against plaintiffs as to the truth of such statements, they did constitute evidence of the facts stated, and in the absence of countervailing evidence became conclusive upon his representatives as to such facts.

If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, it is the duty of the court to direct a verdict. 8 N. Y., 67; 24 id., 433; 45 id., 509; 64 id., 427; 69 id., 392. It is not enough to authorize the submission of a case to the jury that there is some evidence. A scintilla of evidence or a mere surmise to the contrary is not sufficient. 59 N. Y., 366; 3 C. B., N. S., 146; 60 N. Y.,

136; 88 id., 667; 91 Penn. St., 200; L. R., 4 Exch., 39; 14 Wal., 442; 22 id., 120; 94 U. S., 284; 104 id., 553; 21 Fed. Rep., 159; 71 N. C.,

431.

Judgment of General Term, affirming judgment for plaintiffs on verdict, reversed, and new trial ordered.

Opinion by Ruger, Ch. J. All concur, except Danforth, J., dissenting, Miller, J., not voting, and Finch, J., taking no part.

MARRIAGE. SURROGATES. SURROGATES' COURT. OSWEGO COUNTY.

In re estate of William S. Hetherington, deceased.

Decided May, 1886.

On an application to revoke letters issued to the widow of deceased the surrogate

has power to pass upon the validity

of a former marriage of such widow where the question affects the validity of her marriage with the deceased. Decedent's widow was formerly married to one G. from whom she separated. At the time of said marriage G. had another wife living. In neither case has the mar

riage been annulled. Held, That the

marriage to G. was absolutely void; that a decree dissolving it was not necessary to the legality of her marriage to dece

dent and that she was the legal wife of decedent.

Application by an heir-at-law to have the letters of administration heretofore issued to Alice Hetherington as the widow of deceased revoked.

It appears that said Alice married decedent in August, 1883, and lived with him until his death. Prior to such marriage and in 1878, she was married to one G.

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and lived with him about a year and a half, and had one child by him, when they separated, as she claims, because he abused her, and have not cohabited since. G. at the time of his marriage with respondent had a living wife whom he had married in 1870, and with whom he had cohabited and had a child and which marriage had never been annulled or dissolved; nor has the marriage of G. and respondent been annulled.

Petitioner claims that, as such marriage with G. has not been annulled, the marriage with decedent was "absolutely void" under the R. S., Chap. S, title 1, art. 1, § 5; that notwithstanding said statute respondent could not contract a second legal marriage until her former marriage was dissolved by a decree of a competent court having original jurisdiction to dissolve the marriage relation between husband and wife, and that this court has no jurisdiction to decide that matter even in this proceeding.

Respondent claims that, G. having a lawful living wife at the time she was married to him, her marriage to him was "absolutely void" under the above statute, and therefore, it being so declared by said statute, she was at perfect liberty to enter into a legal marriage with decedent.

C. H. David, for petitioner. Howe & Rice, for respt. Held, That the Surrogates Court has power to pass upon the validity of that marriage in this proceeding; it is one of the "incidental powers" possessed by a Sur

rogates Court provided for by subd. 11, § 2481, Code Civ. Pro., to carry into effect the power expressly conferred on it by § 2472, subd. 2. That respondent's marriage with G. was absolutely void and that she was the legal wife of decedent and is his widow and entitled to her letters of administration. That a decree dissolving respondent's marriage with G. was not necessary to the legality of her marriage with decedent.

Prayer of petitioner denied, but without costs, as the relations of respondent with the two men have been shrouded in so much public doubt as to invite the proceeding.

Opinion by David, S.

MASTER AND SERVANT.
NEGLIGENCE.

N. Y. COURT OF APPEALS.

Bajus, respt., v. The S., B. & N. Y. RR. Co., applt.

Decided Oct. 12, 1886.

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Plaintiff, while engaged in uncoupling cars in defendant's employ, caught his foot in a frog, and signaled the engineer to stop, but the engine, being defective, could not be stopped in time, and plaintiff was run over and lost his leg. There was no proof that the engineer heard the first signal, but it appeared that as soon as he heard it he easily reversed the engine and it did not move than five feet afterward. Held, That the engine was not a dangerous one; that it did not cause the injury, but simply failed to rescue him from the danger in which he was placed; that defendant was not negligent in putting it to the service in which it was employed and that plaintiff could not recover. Reversing S. C., 20 W. Dig., 399.

This action was brought to re

cover damages received by plaintiff through the alleged negligence of defendant. It appeared that in 1877 plaintiff was defendant's yard master at Syracuse, and as such it was his duty to superintend and aid in the shifting of cars, and to couple and uncouple cars. At the time plaintiff was injured the shifting engine was attached to twelve cars and after drawing them a short distance up grade it became stalled, and under plaintiff's direction it was backed so as to enable him to uncouple some of the cars. For this purpose he went between two cars while they were moving slowly backward, and his foot caught under a brake-beam and he was dragged about forty-five feet, when a car wheel ran over one of his legs and crushed it so as to render amputation necessary. Plaintiff claimed that the engine was out of repair and insufficient for the use to which it was devoted. He alleged first that the flues of the engine were foul and somewhat stopped up. The only effect of this was that steam was generated less rapidly and the power of the engine was thus diminished. Second, that the main valve in the steam chest leaked. This simply diminished the power of the engine. Third, that the throttle valve leaked. This would prevent the steam from being entirely shut off, and an engine with such a defect may move from its position. when placed at rest unless blocked. No leakage can occur when the

throttle valve is open, but such a defect frequently makes it more difficult to throw over the

lever and thus reverse the engine. Plaintiff claimed that when his foot was caught he immediately signaled the engineer to stop, and if the throttle valve had been in order the engineer could have more readily reversed the engine and thus arrested its motion before his leg was crushed. There was no proof that the engineer saw or heard plaintiff's signal when he first gave it. The only person who was on the engine and saw what took place was called as a witness by plaintiff, and testfied that when the engineer heard plaintiff's signals, he at once threw over the lever and reversed the engine and that he did this

Also held, That defendant was not bound to restore this engine to the power it originally possessed, as it owed no duty to purchase a new engine of greater power than this then possessed. 126 Mass., 84; 12 R. I., 112; 69 Mo., 34; 33 Mich., 133; 50 Ga., 465; 32 Md., 411; 103 Penn., 124.

Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial ordered.

Opinion by Earl, J. All concur, except Danforth and Andrews, JJ., dissenting.

ASSESSMENTS.

TERM. FIRST DEPT.

quickly and without any difficulty, N. Y. SUPREME COURT. GENERAL and that thereafter the engine passed backward only about five feet. It appeared that plaintiff was familiar with the capacity and power of the engine.

Louis P. Marshall, for applt. William P. Goodelle, for respt. Held, That plaintiff was not entitled to recover; that the engine. was not a dangerous one and did not cause the injury, that having been caused by the brake-beam accidentally catching plaintiff's foot, the engine simply failing to rescue him from the danger in which he was placed. As defendant had no reason to anticipate such an accident, and was not bound to have an engine there adequate to avert its consequences, there was no negligence on defendant's part in putting this engine to the service in which it was employed. 98 N. Y., 562; 101 id.. 396, 520.

The People ex rel. Sidney Dillon et al., v. Edward Gilon et al., composing the Board of Assessors. of the city of N. Y.

Decided Oct. 15, 1886.

The tunnels under Fourth avenue in the city of N. Y., owned by the railroad companies using the same, and the parks in said avenue upon the top of said tunnels and around the openings therein made for ventilation, are not liable to assessment for expense of paving said

avenue.

Certiorari to review an assessment for the expense of improving and paving Fourth avenue from 72d street to Ninety-ninth street, in the city of N. Y. Under Chap. 702 Laws of 1872, certain railway companies were authorized to, and did, construct and maintain tunnels under said avenue for their tracks to pass through. Said act authorized the making of openings

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