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and 140 New York State Reporter might be for making use of such furnaces in such a way as to violate the provision against suffering or allowing smoke to escape or be discharged from the factory. The rule is well established that a provision of a statute, not within the spirit of the enactment, is not a part of the law, and it is to be disregarded. Riggs v. Palmer, 115 N. Y. 506, 509, 511, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819. It may be remarked, in passing, that there is much room for doubt whether the evidence is sufficient to show that the furnaces in use in the factory involved in this case were not properly equipped with smoke consumers. The undisputed evidence is that they were equipped with the best known appliances at the time of the trial, and the affirmative evidence that smoke was seen to flow from the smokestacks on a given day may have been due to an improper use of the appliances, or a failure to put them into operation. But we prefer to rest this branch of the case upon the obvious fact that the provision of the Sanitary Code was not designed to reach an employé in a matter which was beyond his control. He might refuse to make use of furnaces, which would render him liable for violating the other provisions of the section, but he could not be held liable for a failure to provide the furnaces with proper equipments. That is a duty imposed by law upon the employer, and there is no good reason for punishing an employé for the employer's neglect of a duty. If the owners of the factory were before the court, a different question would be presented under this clause of the section.

We come, then, to the question of the defendant's guilt under the provision of the Code:

"Nor shall any person cause, suffer or allow smoke, cinders, dust, gas, steam or offensive or noisome odors to escape or be discharged from any such building, vessel or place to the detriment or annoyance of any person or persons not being therein or thereupon engaged."

The facts alleged and proved show that the factory of William E. Uptegrove & Bro. Company was situated on the East river front; that the nearest places of residence were some 500 feet distant from the same, and that in every other direction there were no residences for many thousands of feet; that on the 19th day of April, 1906, one Daniel Melody, a sanitary inspector and a police officer, saw smoke coming from three of the smokestacks of this factory. There is not a particle of evidence in the case to show that this smoke operated to "the detriment or annoyance of any person or persons not being therein or thereupon engaged," or, indeed, that it annoyed or that it was detrimental to any individual, whether on or off the premises, the nearest possible approach to such evidence being that the sanitary inspector, in answer to the question in reference to this smoke, “Was it an agreeable smell?” said, "No, sir." As we read the provisions of the Sanitary Code, it is not contemplated that smokestacks shall exude delicate perfumes, such as shall commend themselves to the olfactory nerves of inspectors bent upon the discharge of duty, but all of the requirements of its provisions are met when the persons in charge of such smokestacks have refrained from permitting smoke to escape or be discharged from any such building, vessel, or place, to the detriment or annoyance of any person or persons not being therein or thereupon engaged.” That is the test of liability; that there shall be in fact a nuisance, not perhaps within the full scope of the common-law nuisance, but a nuisance which, by annoying one or more persons, shall be constructively a public nuisance. The fact that in some jurisdictions enactments have been sustained which have provided that dense smoke flowing from smokestacks or otherwise shall constitute a nuisance is of no importance here, because there has been no such attempt on the part of the power enacting the Sanitary Code. It has been provided, not that the exuding of smoke, but permitting smoke to escape in such a manner as to work a detriment or annoyance to any person or persons not upon the premises, that constitutes a nuisance, and, until the people have established this fact, there is no crime proven.

In the case at bar the defendant established affirmatively that the smoke was produced by the burning of Spanish cedar shavings, the smoke from which was entirely innocuous; that the people who lived within 500 feet of the factory, and who had known the conditions for years, had never been annoyed by the same; and that the constituent elements of the smoke were such that their effect upon the air or upon property would be imperceptible. Under such conditions, it is certain that the defendant has not been guilty of a violation either of the letter or the spirit of this provision of the Sanitary Code, and his conviction is error, demanding a reversal of the judgment.

This conclusion makes it unnecessary to consider the constitutional questions raised, and these may properly await the coming of a case where the people have established the facts necessary to show a violation of the Code.

The judgment appealed from should be reversed. All concur; HIRSCHBERG, P. T., in result.

(121 App. Div. 489.)

ROMANO y. CONCORDIA FIRE INS. CO. (Supreme Court, Appellate Division, Second Department. Oct. 4, 1907.) 1. INSURANCE-WAIVER OF AGREEMENTS AFFECTING RIGHT TO FORFEIT POLICY

-AUTHORITY OF AGENTS.

A provision of a fire insurance policy that it should be void if the insured had any other insurance, whether valid or not, on the property in sured, unless otherwise provided by an agreement in writing indorsed on or added to the policy, could not be waived by the broker who solicited

the insurance. 2. APPEAL-ISSUES IN TRIAL COURT-INSURANCE-ACTION ON POLICY-ISSUES

NOT RAISED BY PLEADINGS.

Where, in a suit on an insurance policy, defendant did not plead a breach of the provision relating to prior insurance which was necessary to raise that issue, but the plaintiff introduced and insisted on litigating

the question, he must abide by the result. 3. INSUBANCE-CONTRACT-REQUISITES AND VALIDITY_NAME OF INSURED.

An insurance policy is not void because the name of insured is not properly stated therein.

Hirschberg, P. J., and Woodward, J., dissenting. Appeal from Trial Term, Westchester County.

Action by Salvatore Romano against the Concordia Fire Insurance Company to recover upon a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed.

and 140 New York State Reporter Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, MILLER, and GAYNOR, JJ.

William A. Walling, for appellant.
George J. McDonnell (Edward J. Kelly, on the brief), for respondent.

GAYNOR, J. The motion to dismiss should have been granted. The defendant claims that the policy of fire insurance sued upon was void ab initio, under the clause in it that it should be void if the insured had any other contract of insurance, "whether valid or not," on the property insured, unless otherwise provided by an agreement in writing indorsed on or added to the policy. There was no such agreement. The plaintiff had a policy on the property in another company. That his name was erroneously stated therein as Sabito Roumani did not make it invalid, but it mattered not if it did. He testified, however, that he told the broker who solicited the policy of the prior insurance, and that the latter said it was void. It was error to submit to the jury on this evidence whether there was a waiver by the defendant of the requirement of the policy in respect of other insurance. The broker, who was not a regular agent of the defendant, much less its general agent, but a mere soliciting broker for companies generally, was not able to waive such requirement; nor could it be waived except in the manner prescribed by the policy. Baumgartel v. Providence Ins. Co., 136 N. Y. 547, 32 N. E. 990, and cases there cited. This matter of other insurance is not trivial but grave.

The defendant did not plead a breach of the said provision of the policy as a defense, which was necessary to enable it to raise that issue, but the plaintiff needlessly introduced and insisted on litigating the question on the trial and must abide by the result.

The judgment should be reversed.

Judgment reversed, and new trial granted. costs to abide the event. JENKS and MILLER, JJ., concur. HIRSCHBERG, P. J., dissents in memorandum, with whom WOODWARD, J., concurs.

HIRSCHBERG, P. J. I dissent. As I understand the case, the plaintiff is willing to “abide by the result.” On the other hand, I see no reason why the defendant should have a second trial of an issue not raised by its answer, and which issue cannot be retried without an amendment of the pleading.

(121 App. Div. 309.)

PETERS V. TALLCHIEF. (Supreme Court, Appellate Division, Fourth Department. September 25, 1907.) 1. INDIANS-LANDS-ALLOTMENT.

Laws 1854, p. 369, c. 175, § 1, permitted allotments of land to Tuscarora Indians by their chiefs or headmen. Indian Law, Laws 1892, p. 1575, C. 679, § 7, provides that any nation of Indians owning land may partition it among the individuals and families of such nation, and section 90, p. 1596, provides that the chiefs of the Tuscarora Indians shall allot to any Indian making application and not possessing land so much of the tribal lands as they shall deem just. Section 2, p. 1574, expressly authorizes an Indian to take, bold, and convey property the same as a citizen. De

cedent, a Tuscarora Indian, occupied premises upwards of 28 years, claiming to own the same under an allotment, and at his death petitioner and her husband, both Indians, occupied the premises, the same having been devised to the husband, who was decedent's son, and after the death of petitioner's husband she continued to occupy the premises with her infant child for about two or three weeks, when she was ousted by defendant, a daughter of decedent. Held, that petitioner was entitled to possession of the lands as against defendant.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indians, $ 50.] 2. SAME-JURISDICTION OVER INDIAN RESERVATIONS.

Under Indian Law, Laws 1892, p. 1575, C. 679, § 5, providing that any demand or right of action by an Indian, jurisdiction of which is not conferred on a peacemakers' court, may be enforced in any state court the same as if the parties were citizens, a Tuscarora Indian may maintain an action in a state court for the possession of land on the Tuscarora Indian reservation, which, when dispossessed, she was holding in accordance with the customs recognized by those Indians; the Tuscarora Indians having no peacemakers' court or other tribunal to which she might resort for relief.

McLennan, P. J., dissenting.
Appeal from Niagara County Court.

Summary proceedings to recover the possession of certain premises by Linnie L. Peters in behalf of herself and her infant daughter, Irene Peters, against Allie Tallchief. From a judgment of the County Court (102 N. Y. Supp. 972), reversing a final order of a justice of the peace, awarding possession of the premises to her, Linnie L. Peters appeals. Judgment of the County Court reversed, and final order of justice of the peace affirmed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

William E. Lockner, for appellant.
W. Luther Reeves, for respondent.

KRUSE, J. The proceeding was brought to recover the possession of certain lands, situate on the Tuscarora Indian reservation, in the town of Lewiston, Niagara county, consisting of about 23 acres of farm land, with buildings thereon, and occupied for many years by Jeremiah Peters, a Tuscarora Indian, up to the time of his death in March, 1900. Both the petitioner and the defendant are Tuscarora Indians. The defendant is his daughter and the petitioner is his daughter-in-law. No evidence was given on behalf of the defendant, but she contended, and now insists, that the courts of this state have not jurisdiction, for the reason that the parties to the controversy are Indians, and that the premises are Indian tribal lands. The justice of the peace overruled her objections, and awarded possession of the lands to the petitioner, but, upon appeal, the County Court reversed the judgment, and the petitioner now appeals to this court.

It appears that Jeremiah Peters occupied the premises for upwards of 28 years, claiming to own the same under an allotment thereof made to him by the chiefs or head men of the Tuscarora Indians. After the death of Jeremiah Peters, which occurred in March, 1900, his son, the petitioner's husband, occupied and claimed to own the premises, the same having been devised to him by his father. The

106 N.Y.S.-5

and 140 New York State Reporter petitioner occupied the premises with her husband until the husband became insane in 1905, when he was confined in an asylum, where he remained for about a year, when he died, his death occurring in March, 1906. After his confinement in the asylum, his wife continued to occupy the premises with their infant daughter until about two or three weeks after the death of her husband, when she was ousted by the defendant. It further appears that, while the petitioner was temporarily absent from the house situate upon the premises, the defendant broke into the house and took possession of the same. Upon being asked to give up possession of the premises and the things in the house, the defendant refused to move from the house, or even to give up possession of the petitioner's furniture and goods, consisting of a stove, bedstead, dishes, cupboard, sewing machine, and some chairs. The petitioner claims she was entitled to the possession of the premises; that, in addition to her dower, she had the widow's quarantine right, which continued for 40 days after the death of her husband (Real Property Law, § 184; Fowler on Real Property, 439, 440), and was the guardian in socage of her infant child (Domestic Relations Law, § 50), which enabled her to recover possession of the infant's lands (Foley et al. v. Mutual Life Ins. Co., 138 N. Y. 333, 339, 34 N. E. 211, 20 L. R. A. 620, 34 Am. St. Rep. 456).

It is unnecessary to define or classify the precise right that Jeremiah Peters had in the land under the allotment so made to him. That it was a substantial right entitling him to the exclusive possession thereof seems clear. As early as 1854 the Legislature, evidently recognizing the change in the manner and custom of these Indians, permitted allotments of this character to be made by the chiefs (Laws 1854, p. 369, c. 175, § 1), and such an allotment is now sanctioned by the Indian law (Laws 1892, pp. 1575, 1596, c. 679, $$ 7, 90). The same law expressly authorizes a native Indian to take, hold, and convey real property the same as a citizen (section 2), and the right of an Indian under such an allotment of tribal lands has been recognized and protected by our state courts (Jimeson v. Pierce, 78 App. Div. 9, 79 N. Y. Supp. 3). The right of the son and his family to occupy and enjoy the lands so devised to him by his father does not appear to have been questioned by the chiefs or any one else, save the defendant; and she does not seem to have asserted any claim to the property until after the death of her brother. In the absence of any right thereto, I think it clear that the defendant was not justified in ousting the petitioner from the premises as she did, and that the petitioner is entitled to the possession of the lands as against the defendant. The undisputed evidence shows that the defendant intruded into and squatted upon the premises without any right thereto.

The more serious question, however, is whether the petitioner may resort to the courts of this state for the enforcement of her right against the defendant. If she may not have redress in our courts, she appears to be remediless, since the proof shows that, unlike some of the other Indians, the Tuscarora Indians have no peacemakers' court or other judicial tribunal of their own to which the petitioner may resort for the enforcement of her right. While these Indians may voluntarily submit matters in controversy to their chiefs, neither party

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