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PAGE.

INSURANCE – Continued.
policy of fire insurance, the insured and the insurance company enter into a
written agreement for an appraisal of the loss, evidence that it was orally
agreed between the parties, contemporaneously with the execution of the
written agreement, that the only question to be submitted to the appraisers
was whether the loss should be fixed at $6,000 or $7,000 is incompetent, in
the absence of proof that the written agreement was obtained by fraud or
mistake. TOWNSEND 1. GREENWICH INSURANCE Co....

323
11. A loss paid under a mortgagee clause to the mortgagee must be ten-
dered before suit by the owner.] Where the appraisers fix the loss at less
than the full amount of the policy, and such amount has been paid over to
a mortgagee of the insured property as provided by a mortgagee clause
contained in the policy, the owners of the insured property, cannot, without
returning or offering to return the amount paid over to the mortgagee, main-
tain an action against the insurance company to recover the full amount of
the policy, because of the alleged oral agreement limiting the power of the
appraisers, even if such oral agreement be effective. Id.

12. The appraisers fix the loss, not the linbility.] The provision in the
standard policy of fire insurance, that, in the event of a disagreement, the
amount of the loss shall be determined by appraisers, contemplates that the
determination of the appraisers shall fix, not the liabilities of the parties
under the law, but the value of the property destroyed. I.

13. — Notice of the appraisers' meeting is not essential.] This provision
does not oust the court of any part of its jurisdiction, and, in the absence of
bad faith, the mere fact that the parties are not given notice of the meetings
of the appraisers does not affect the validity of their proceedings. Id.

14. Fire insurance a defense of fraud must be specifically pleaded.) In
an action to recover upon a policy of fire insurance, containing a clause that
fraud and false swearing on the part of the insured shall vitiate the policy,
evidence of such fraud and false swearing is not admissible under a general
denial.

Defenses which assume or admit the original cause of action alleged, and
are based upon subsequent facts or transactions which go to qualify or defeat
such cause of action, must be pleaded and proved by the defendant.
CHEEVER v, BRITISH-AMERICAN INs. Co...

333
15. What proof that the insured was found hanged establishes suicide
rather than murder.] What evidence, given in an action brought to recover
upon a policy of insurance issued upon the life of a man, who was found
hanging from the railing upon the platform of a secluded portion of a rail.
road freight depot in a country village, entitles the defendant, wbich dis-
claims liability under a suicide clause contained in the policy, to the direc-
tion of a verdict in its favor, considered. SEYBOLD v. SUPREME TENT...... 195

16. A direction of a verdict for the company, notwithstanding the fact
that certain premiums are recoverable in case the policy is not enforcible, ichen
sustained.] The fact that the policy sued upon secured to the beneficiary
the right to recover certain premiums paid upon the policy, in the event of
an action to recover the full amount of the certificate being defeated by the
defense of suicide, did not render it improper for the trial court to direct a
verdict in favor of the defendant, it appearing that the right of the plaintiff
to recover the premiums paid by the insured was not suggested to the trial
court. ld.

17. The judgment thereon does not bar an action for the premiums.)
Semble, that the judgment entered upon the verdict would not be a bar to an
action brought by the plaintiff to recover the amount of the premiums paid
by the insured. Id.

18. Answers made warranties their falsity, whether material or not,
aroids the policy.] Where the answers contained in the application for a
policy of life insurance are, by the terms of the policy, made warranties, the
falsity of such answers will avoid the policy independent of whether the
answers were material to the risk or not.
CROSBY 0. SECURITY Mut. LIFE INSURANCE Co......

89

PAGE.

INSURANCE - Continued.

19. When the question as to the falsity of answers in regard to attendance
by a physician should be submitted to the jury.] In an action upon such a policy,
it appeared that in the application for the policy the insured stated that it
was about two years since he had last been attended by a physician or had
consulted one, and that the name of such physician was Dr. G. C. Prichard.
The evidence tended to show that, within a year prior to the issuing of the
policy, the insured suffered from a slight indisposition and that, without
his knowledge or consent, his wife called a physician named Dr. Burt to
attend him. So far as appeared the insured did not hold any conversation
with Dr. Burt as to his ailment or the proper course of treatment. The
physician asked no questions of the insured, but made some suggestions
as to the remedies which should be applied and the course of diet which
should be followed. It did not appear whether the medicine prescribed was
taken or whether the suggestions as to diet were followed.

Held, that it could not be said, as a matter of law, that the insured answered
falsely in reference to his having been atteuded by a physician, but that, at
most, the question of the falsity of the answers was one of fact which should
have been submitted to the jury. Id.

— Attorney's lien on a life insurance policy – proof of the attorney's
employment to collect it. MATTER OF SWEENEY..

547
See ATTORNEY AND CLIENT.
INTENT — As to change of residence.

See ELECTION.
INTOXICATING LIQUOR – Evidence proof insufficient to sustain a con.
viction of a bartender, of permitting persons, nut servants or members of his
employer's family, to be present in a bar room on Sunday.] On the trial of a
bartender in the employ of the holder of a liquor tax certificate under a
charge that he violated subdivision g of section 31 of the Liquor Tax Law
(Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312), by permit-
ting persons who were not servants of his employer or members of the
latter's family to be present in the bar room on a Sunday, the defendant
contended that the persons present in the bar room on the occasion in
question were waiters in the employment of the holder of the certificate,
and were at that time engaged in the course of their employment.

Held, upon a consideration of the evidence, that it was not sufficient to
prove, beyond a reasonable doubt, that the men in question were not what
the defendant contended they were, and that a judgment of conviction should
be reversed. PEOPLE 0. Ryan..

524
IRRELEVANT AND REDUNDANT MATTER — In a pleading when
stricken out.

See PLEADING.
ISSUE – Trial of.

See TRIAL.
JUDGE'S CHARGE

To the jury.
See TRIAL.
JUDGMENT - Res adjudicata - a judgment in an equitable action defin-
ing a boundary line is conclusive between the same parties on the subsequent trial
of an ejectment suit.] 1. A dispute having arisen between two adjoining lot
owners respecting the dividing line between their premises, one of the parties
brought an action in equity to establish the dividing line, while the other
party brought an action in ejectment to recover possession of a strip of land
which he claimed belonged to him. The two actions were referred to the
same referee, who, after a trial of the equitable action, decided the same. The
plaintiff in that action accepted the conclusion of the referce and entered a
judgment in accordance therewith.

On the trial of the ejectment action, the judgment roll in the equitable
action was received in evidence and the referee awarded judgment in favor
of the plaintiff in the ejectment action in accordance with the conclusion
reached by him in the equitable action.

Upon an appeal from the judgment rendered in the ejectment action it

was

PAGE.

JUDGMENT - Continued.

Held, that the defendant in that action could not insist that the con-
clusion reached by the referee in the equitable action was the result of a mis-
take upon the part of the referee, and that, if such judgment was corrected so
as to accord with the referee's intention, it would embrace the premises
awarded to the plaintiff in the ejectment action;

That any error committed by the referee in the equitable action could not
be corrected by a collateral attack thereon. BECKER v. STUDEMAN.... 94

2. A judgment sustaining a demurrer to a portion of an answer should
be interlocutory - it should not authorize the collection of costs.] A judgment
sustaining a demurrer to a counterclaim interposed in an answer containing
other issues should be interlocutory, and should not permit the collection of
the costs until judgment is rendered on the other issues.
BURNETT v. BURNETT ...

386
3. · Arrest of a plaintiff suing in tort, for non-payment of costs.] In an
action of tort, in which the defendant is liable to arrest and imprisonment if
the plaintiff is successful, a judgment in favor of the defendant for costs may
be enforced by an execution against the person. SAFFIER 0. HAFT.. 284

Slander -- a general denial and in a single count a defense in justifica-
tion and in mitigation - a demurrer to the latter, where it is sufficient as a
defense in mitigation and insufficient as one in justification, is bad - the
judgment should, in any event, be interlocutory and not final.
DOYLE v. FRITZ..

515
See SLANDER.

Rendered upon accountings by executors — when the Statute of
Limitations is not a bar to an action by a testator's children to procure an
adjudication that a will is invalid so far as it directs an accumulation of
the income of the estate after the children attain their majority.
THORN 0. DE BRETEUIL..

405
See WILL.

Insurance - a direction of a verdict for the company, notwithstand-
ing the fact that certain premiums are recoverable in case the policy is not
enforcible, when sustained — the judgment thereon does not bar an action
for the premiums. SEYBOLD v. SUPREME TENT.....

... 195
See INSURANCE.

Not vacated, on the ground that it was prosecuted by an attorney
without authority, where the client bas acquiesced in its prosecution – what
notice is insufficient to show want of authority in an attorney.
BUTCHER v. QUINN....

391
See ATTORNEY AND CLIENT.

Short decision under Code of Civil Procedure, § 1022 — when the
grounds thereof are not sufficiently stated — the judge who made it being
no longer on the bench a new trial will be ordered. ĞEIN O. LITTLE ..... 503

See DECISION.
JUDICIAL SETTLEMENT OF ACCOUNTS :

See ACCOUNTING,
JURY Charge that the jury may consider the non-production of a paper in
the possession of the plaintiff's attorney, which would explain the transaction
at issue it is proper although such paper is in court and accessible.] 1. In an
action to recover a sum of money which the plaintiff claimed to have loaned
to the defendant, the principal issues litigated were as to whether the money
in question was loaned to the defendant or to one Sherlock, for whom the
defendant claimed he had acted as agent, and as to the time when a certain
payment, which was relied upon to take the case out of the Statute of Limi.
tations, had been made.

This payment was made by the defendant to the plaintiff's daughter, and,
at the time of making it, he presented to, and left with, her, for the signa.
ture of the plaintiff, a receipt for the money in question. The daughter,
who gave important evidence for the plaintiff as to the date of the payment,
admitted that she fixed the date of such payment largely by reference to
the receipt. The receipt was in court in the possession of the plaintiff's
attorneys, but they did not place it in evidence.

PAGE.

73

JURY - Continued.

The defendant asked the court to charge that the jury might“ take into
consideration the fact of the non-production of this alleged receipt, referred
to by Mrs. Young in her testimony, in determining what the original transac-
tion was and where the truth in this matter lies."

The court declined to charge as requested because it appears that this
paper is here in court and would be accessible."

Held, that the refusal to charge as requested constituted an error requiring
a new trial. WERR v. Kohles

122
2. Verdict when set aside because the amount thereof is not justified
by the evidence.] In an action to recover for services performed by the plain-
tiff for the defendant, the only issue litigated was as to the compensation
which the parties had agreed that the plaintiff should receive for the
services. According to the plaintiff's contention, the amount which he was
entitled to recover was $900, while, according to the defendant's contention,
the plaintiff was not entitled to recover anything. The jury rendered a ver-
dict in favor of the plaintiff for $500.

Held, that the verdict was not justified by the evidence and that the
judgment entered thereon should be reversed;

That the verdict rendered was clearly the result of a compromise and that
it was impossible to say whether or not the defendant was unfavorably
affected thereby.

A jury, in determining the amount of thcir verdict, cannot guess at such
amount. They must be guided by the evidence and by the evidence alone;
if there is no evidence to support the verdict, it has no foundation and must
fall. Myers v. MYERS

3. Verdict not set aside, where the defendant claims that the jury were
unduly influenced by persistent efforts to introduce incompetent evidence, the
verdict not being excessive or the plaintiff's right to recover doubtful.] Where,
upon an appeal by the defendant in a negligence case from a judgment
entered upon a verdict in favor of the plaintiff, the defendant contended that
the jury were unduly influenced by the conduct of the plaintiff's counsel in
endeavoring to place before them the contents of a letter describing the cir-
cumstances of the accident, written by the plaintiff's son-in-law to the
defendant, the day following the accident, which letter was finally excluded
as incompetent, the Appellate Division refused to reverse the judgment
upon this ground, it appearing that the verdict was not excessive and that
there was not so great a weight of evidence in favor of the defendant's theory
of the accident as to create a doubt as to the justice of the verdict.
CONNOLLY V. BROOKLYN HEIGHTS R. R. Co...

245
4.

Action of the judge in denouncing a witness' conduct.] When the
action of the judge presiding at a jury trial, in denouncing as reprehensible
the conduct of a witness in a matter to which he had testified and which
had no direct bearing upon the main issue, does not constitute prejudicial
error,

considered.
In view of the great weight attached by jurors to expressions from the
bench, harsh remarks about the motives of witnesses may not be generally
commended; every unguarded expression of opinion by the trial judge on a
question of fact during the trial is not, however, subject to exception as
invading the province of the jury. METCALFE 0. GORDON

368
5. — Trial judge asking a series of questions of a witness.] A judgment
will not be reversed because of the action of the trial judge in asking a series
of questions of the witnesses examined, where this was done without
objection or exception and from an impartial desire to elicit the truth. Id.

Testimony of an interested witness — the jury may credit it in part
only. McGAHIE 0. McLENNEN

263
See EVIDENCE.
JUSTIFICATION – In an action for slander.

See SLANDER.
LACHES — City contract appeal, from the engineer's decision, to other city
officers what delay in the action of such other officers justifies the contractor in
bringing suit.
See JOHNSON 0. CITY OF ALBANY....

567

PAGE.
LANDLORD AND TENANT – Real estate broker the mere fact tbat
a lease is made to a person procured by a broker does not entitle the latter to
commissions. BRADY 0. AMERICAN MACHINE & FOUNDRY CO.....

267
See PRINCIPAL AND AGENT.
LEGACY:

See WILL.
LEGISLATURE — Power of.

See CONSTITUTIONAL LAW.
LETTER - Written by a wife in her husband's presence when not a confi.
dential communication.

See EVIDENCE.
LETTERS PATENT Conditions of

See DEED.
LIEN— Mechanic's lien work performed by a sub-contractor with the knoul.
edge and consent of the owner'.] The mere fact that a sub-contractor per-
forms work under his contract, with the knowledge and consent of the
owner, does not entitle him to a lien upon the premises.
BUTLER 0. AQUEHONGA LAND Co..

439
Of an attorney.

See ATTORNEY AND CLIENT.
Of a mortgage.

See MORTGAGE.
LIFE ESTATE:

See REAL PROPERTY.
LIFE INSURANCE:

See INSURANCE.
LIMITATION OF ACTION When it is not a bar to an action by a
testator's children to procure an adjudication that a will is invalid so far as
it directs an accumulation of the income of the estate after the children
attain their majority. THORN r. DE BRETEUIL...

405
See WILL

Banking — when the Statute of Limitations begins to run against
a certificate of deposit. MATTER OF COOK .

586
See BANKING.
LOST INSTRUMENT Porder of a court of equity, on the giving of a bond,
to allow a recovery on a lost instrument.
See MATTER OF COOK

586
MAGISTRATE - In the city of Nero York jurisdiction of.

See MUNICIPAL CORPORATION.
MAINTENANCE:

See CHAMPERTY.
MALICIOUS PROSECUTION – Action for malicious prosecution
paper articles are competent to show the notoriety given to the plaintiff's arrest.]
1. "In an action brought to recover damages for the alleged malicious prose-
cution by the defendant of a criminal action against the pl:intiff, the plain-
tiff, for the purpose of showing the publicity given to the alleged wrong
inflicted upon the plaintiff by the defendunt, is entitled to introduce in evi.
dence newspaper articles stating the fact that he had been indicted, and the
crime with which he was charged, and that he had been arrested and had
given bail.
BROWN v. SMALLWOOD

.... 76
2. · Not, however, where they contain the plaintiff's version of the matter.]
If, however, such newspaper articles, in addition to the foregoing matters,
purport to give the plaintiff's version of the transaction with considerable
detail, which version, if true, exonerates the plaintiff from all blame and
clearly indicates that the defendant caused the indictment to be found mali.

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