THIRD DEPARTMENT, NOVEMBER TERM, 1887. husband and her children, which was acknowledged on the same day before the county judge who had drawn it; that the plaintiff took the deed with her from the judge's office, and about a month afterwards returned it to the county judge, requesting him to have it recorded, and paid him the fees therefor; that the deed was, on December 15, 1879, duly recorded, and that the grantees therein have never reconveyed. The plaintiff testified that she thought the deed was a will; that she had been in possession of the property ever since; that she never told her children of the deed; that she thought that by making this paper her children would have her property after her death; that she meant to have the judge draw a paper which would give the property to her children after her death, and that she intended her husband should have some of it. The judge testified that he read the deed in part to her, explained what he did not read, and that nothing was said about a will. Held, that the evidence was sufficient to prove a delivery and acceptance of the deed. That the evidence of what she meant to do, not strengthened by any evidence that any incorrect representations were made to her of the nature of the instrument she was signing, was not enough to destroy its effect. That the policy was void. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. This was an action against the defendant, as treasurer of an insurance company, upon a policy of insurance issued by the company to plaintiff. The defense was two-fold, viz.: First. That at the time of issuing the policy, and at the time of the fire, the plaintiff was not the owner, and that her interest in the property was not stated in the policy. Second. That the property was unoccupied at the time of the fire. The first is the more important defense. The plaintiff had been the owner in fee of the property. On the 8th of November, 1879, she executed a warranty deed to Philo Messelback, and others her children. The deed was acknowledged the same day before the county judge who had drawn it. The plaintiff took the deed with her from the judge's office. About a month afterwards she returned the deed to the county judge, requested him to have it recorded and paid him the fees therefor. The deed was duly recorded December 15, 1879. The grantees therein have never reconveyed. In order to obviate the effect of this deed the plaintiff, on her own behalf, testified, against defendant's objection, that she thought the deed was a will; that she had been in possession of the property ever since; that she never told her children of the deed; that she THIRD DEPARTMENT, NOVEMBER TERM, 1887. thought that by making this paper her children would have her property after her death; that she meant to have the judge draw a paper which would give the property to her children after her death; that she intended her husband should have some of it. The defendant called the judge who drew the deed and offered to show what he said to plaintiff at the time of drawing the deed. On plaintiffs objection this was excluded. The judge testified that he read the deed in part to her; explained what he did not read, and that nothing was said about a will. A. H. Sawyer, for the appellant. Jacob H. Clute, for the respondent. LEARNED, P. J. : It is undoubtedly true that delivery is essential to the validity of a deed. The meaning of this is that merely to sign and seal and acknowledge a writing, and then to keep it in one's possession conveys no title. There must be some act showing that the grantor intends that it shall take effect. That act is delivery to the grantee, actual or presumed. Causing a deed to be recorded is prima facie evidence of delivery. (Tompkins v. Wheeler, 16 Peters, 106; Gilbert v. N. Am. F. Ins. Co., 23 Wend., 43.) For, as said, the delivery to the officer to be recorded may be considered as a delivery to a stranger for the use of the grantee. (Rathbun v. Rathbun, 6 Barb., 98.) So it was said in Moore v. Hazelton (91 Mass. [9 Allen], 102), that execution of a deed, in the presence of an attesting witness, is sufficient evidence from which to infer a delivery. (See cases there cited.) The grantor in that case had retained the deed. In Scrugham v. Wood (15 Wend., 545) the court cited, with approval, the case of Doe v. Knight (5 Barn. & Cress., 671), as follows: "Where a party to an instrument seals it and declares in the presence of a witness that he delivers it as his deed but keeps it in his own possession * * delivery to the party who is to take * by the deed or to any person for his use is not essential.” Now, we must notice that the plaintiff, after causing the deed to be drawn, and after executing and acknowledging it, took it away and kept it for about a month. She then carried it to the judge who THIRD DEPARTMENT, NOVEMBER TERM, 1887. had drawn it to take it to the county clerk's office and have it recorded, and this he did. In the absence of any proof to the contrary, here was evidence from which a delivery could be inferred. There is nothing which shows that the delivery to the county clerk was for any other purpose than for the use of the grantee. Further, it is apparent that under a system of recording deeds, by which the record or a certified copy is of equal validity with the deed, the actual possession of a recorded deed has become a matter of less consequence than it once was. It is difficult to see what act of the grantor can be more expressive of an intent to deliver than the causing of the deed to be recorded. Of course the grantee cannot be compelled to accept against his will. But where a deed is plainly beneficial to the grantee, accompanied by no trust imposed on him, his acceptance is to be presumed unless dissent is shown. There was also in this case a moral consideration. The plaintiff says that the children and her husband had paid about $800 on the property, and that the children had paid about $400 towards building the house. None of the children were called to show that they had refused to aceept the deed; nor does the plaintiff claim that they had ever dissented. They may well have known of the deed, although she did not tell them of it. Altogether we think that the evidence did not justify a finding that the deed was not delivered. The testimony of plaintiff was that she thought the deed was a will; that she wanted a will, and meant this deed to be a will; that she meant to have the judge draw a paper that should give the property to her children after her death. There was nothing to support this, and the judge testified that nothing was said about a will. This evidence of what she meant, not strengthened by any evidence that any incorrect misrepresentations were made to her of the nature of the instrument she was signing, is not enough to destroy its effect. If it were, no dependence could be placed on any instrument. The policy was, by its terms, to be void if the insured be not the sole and unconditional owner of the property or if the interest of the assured be not truly stated. We are of the opinion that on the evidence the policy was void. (Treadway v. Hamilton Mut. Ins. Co., 29 Conn., 68.) The referee held that the house was unoccupied at the time of the fire, but that Bennett, the agent of HUN-VOL. XLVI 53 46 418 68 172 THIRD DEPARTMENT, NOVEMBER TERM, 1887. defendant, had waived the condition touching this point. It is not expressly shown in the case what was the nature of Bennett's agency. But from all the circumstances it would seem that he was not a general agent of the company. Had he been he might have waived the condition. (Steen v. Niagara Fire Ins. Co., 89 N. Y., 315.) It is doubtful whether Bennett had such power. (Walsh v. Hartford Fire Ins. Co., 73 N. Y., 5; Marvin v. Universal Life Ins. Co., .85 N. Y., 278.) The judgment should be reversed, new trial granted, referee discharged, costs to abide event. LANDON and WILLIAMS, JJ., concurred. Judgment reversed, new trial granted, referee discharged, costs to abide event. THOMAS WHITMARSH, JR., RESPONDENT, v. EDGAR Wrongful discharge of a servant before the expiration of his term of service-as to Upon the trial of this action, brought by the plaintiff to recover the damages sustained by a breach of a contract by which the defendant agreed to employ him for a specific time at two dollars per day, it appeared that after the defendant had broken the contract, he said to the plaintiff and others that he could not pay them two dollars any longer, that he would like to have them go on the same as they had before for fourteen shillings, that he wanted them to consider the mat. ter and go to work for fourteen shillings, The court refused a request, made by the defendant, to charge that the plaintiff had an opportunity to earn one dollar and seventy-five cents per day during all the time, and charged that the plaintiff was not required to go back and work for the defendant on these terms offered by him. Held, that it did not err in so doing, as the proposition of the defendant was, under the circumstances, a proposition to abandon the old and form a new contract. Bigelow v. American F. P. Company (39 Hun, 599), distingnished. APPEAL from a judgment of the Albany County Court, in favor of the plaintiff entered upon the verdict of a jury. The action was brought to recover damages for the breach of a contract, by which the defendants hired the plaintiff to assist in THIRD DEPARTMENT, NOVEMBER TERM, 1887. loading ice boats at an agreed price of two dollars per day while the old ice lasted, and one dollar and seventy-five cents per day for the balance of the season, until the close of navigation, on or about December 5, 1886. The complaint alleged the defendants discharged the plaintiff on or about August 30, 1886 N. C. Moak, for the appellants. L. R. Beckley, for the respondent. LEARNED, P. J.: There was evidence on which the jury might find that there was a contract for a specific time, viz., to the end of the season. And there was evidence from which they might also find that defendants broke the contract. It is stated in the charge, that if the jury found in favor of plaintiff the amount of recovery had been agreed upon. No question then arises as to the amount which the plaintiff should recover; except as thereinafter stated. The defendants requested the court to charge that the plaintiff had an opportunity to earn one dollar and seventy-five cents per day during all the time. This was refused. And the court further said, in reference to a former part of his charge, he would except this, viz., that the plaintiff was not required to go back and work for defendants. To this there was an exception. The alleged contract found by the jury was that plaintiff was to work as long as the old ice lasted for two dollars per day. There was evidence that when, as the jury found, the defendants broke this contract, that the defendants offered to pay one dollar and seventy-five cents per day, for the work on the old ice; as is fully stated thereafter. And the principal question here relates to the ruling on this point. The court directed the jury to deduct what plaintiff had received for his services; but declined to direct them to deduct what plaintiff had an opportunity to earn in work of a similar character. Now, the opportunity referred to was the offer of defendants to pay one dollar and seventy-five cents for the same work for which they had contracted to pay two dollars. The defendant's counsel cites Bigelow v. American F. P. Company (39 Hun, 599). In that case after defendants had distinctly discharged plaintiff from their service, they directed him to go to Panama, and |