Appeal from special term, New York county.

Action for an injunction by Sam S. Shubert and others against Aimee Angeles. From an order continuing an injunction pendente lite, defendant appeals. Modified.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

A Rosenthal, for appellant.

A. H. Hummel, for respondents.

PATTERSON, J. The defendant was an actress under contract with the plaintiffs for the season of a certain play. She was employed because of her special talent as a mimic or imitator of other actresses and of actors. She broke her contract with the plaintiffs, apparently without reasonable cause. Her desertion of the plaintiffs caused them great inconvenience and damage, and her appearing in a rival company performing her specialties with such company would seriGusly affect the plaintiffs' play and their receipts. Sufficient facts were shown by the affidavits submitted on this motion to authorize the court at special term to continue the preliminary injunction. The defendant entered into the contract with the plaintiffs voluntarily. That contract is not so indefinite as to the time of her engagement as to be unenforceable. It was for the season of a play to commence on the 12th of May, 1902, and which, according to the affidavit of the plaintiff Shubert, would terminate May I or June 1, 1903. That it was intended to extend beyond the summer season of 1902 is plain from the provision as to performance during the week before Christmas. It was evidently for the theatrical season running into the year 1903. Nor are the provisions obligatory on the defendant so harsh and inequitable that they will not be enforced by a court of equity. The injunction, as granted, does not prevent the defendant from performing as an actress, but only from making certain imitations or mimicking other actresses and actors. But the injunction is entirely too broad. It restrains the defendant during the pendency of the suit and until the further order of the court. When the action will be tried, cannot be foretold. The contract may expire long before such trial, and when it expires the defendant should be at full liberty to play her parts as she pleases, without the necessity of applying to the court for leave.

The injunction should be modified by inserting therein a provision that it is not to continue beyond the close of the present theatrical season, and not longer, in any event, than June 1, 1903, and, as so modified, it is affirmed, without costs. All concur.

(77 App. Div. 49.)

and 114 New York State Reporter

SHERMAN v. ALLISON.

(Supreme Court, Appellate Division, Fourth Department. November 25, 1902.) 1. LIFE INSURANCE POLICY ON HUSBAND'S LIFE - ASSIGNMENT BY WIFE WRITTEN CONSENT OF HUSBAND.

Laws 1879, c. 248, provides that any policy on the life of a husband for the benefit of his wife shall be assignable by the wife with the "written consent" of her husband. Such a policy was transferred by written assignments executed by the husband and wife separately, but to the same party, on the same date, and on the same paper. Above the assignments was a description of the policy and premiums paid, which was referred to in each assignment. The husband's assignment expressed as its consideration the substantial value of the policy. Held, that his assignment constituted a "written consent" sufficient to make her assignment good under the statute.

Appeal from special term, Onondaga county.

Action by Sarah A. Sherman against Caroline A. Allison. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The following is the opinion of the court below (MERWIN, J.):

On the 30th day of May, 1867, the Connecticut Mutual Life Insurance Company issued its policy of insurance upon the life of Jireh Sherman, in the sum of $5,000, for the sole use of the plaintiff, his wife, payable at his death to his wife if she survived him; if not, then to her children. The annual premium to be paid was $166. On the 26th day of May, 1899, Jireh Sherman died. In January, 1900, the plaintiff commenced an action against the insurance company for the recovery of the amount of the policy. Thereafter, upon the allegation that this defendant claimed to own the policy and the moneys payable thereon, such proceedings were had that the insurance company paid into court the proceeds of the policy, being the sum of $4,858.56, and Caroline A. Allison was substituted as defendant in place of the company. The claim of this defendant is that, by virtue of assignments made by the plaintiff and by Jireh Sherman on the 10th day of October, 1879, to George F. Comstock, and by him to this defendant in December, 1882, and on June 26, 1889, she is the owner of the policy and the moneys in controversy. It appears that on October 10, 1879, the plaintiff, by an instrument in writing, signed by her and dated, and duly acknowledged that day, for value received, transferred all her right, title, and interest in the policy to George F. Comstock. On the said day Jireh Sherman, by an instrument in writing, signed by him and bearing the same date, and duly acknowledged by him on that day, in consideration, as therein expressed, of $1,428.88 to him paid, transferred all his right, title, and interest in the policy to George F. Comstock. These instruments are on the same paper, are acknowledged before the same notary, and their execution and delivery must, I think, be assumed to have been part of one and the same transaction. The consideration, stated as $1,428.88, appears to be the amount of the cash premiums paid on the policy up to that date. The assignee, George F. Comstock, by verbal transfer in December, 1882, and by written transfer on June 26, 1889, transferred the policy to the defendant, and since the transfer from the plaintiff and her husband to the said George F. Comstock the latter or the defendant have paid or caused to be paid all the premiums upon the policy.

By chapter 248 of the Laws of 1879 it is provided as follows: "All policies of insurance heretofore or hereafter issued within the state of New York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the state, shall be, from and after the passage of this act, assignable by said wife with the written consent of her husband, or in case of her death by her legal representatives, with the written consent of her husband, to any person whomsoever, or be surrendered to the company issu

¶ 1. See Insurance, vol. 28, Cent. Dig. § 474.

ing such policy, with the written consent of the husband." The main question in this case is whether the written transfer from the husband to Comstock was in effect a written consent to the transfer from the wife to Comstock, within the meaning of the statute? The statute does not state in what manner the consent shall be given. It does not require that the husband shall join in the transfer. If he in fact does join him with the wife in a written assignment, that is a sufficient consent to meet the requirements of the statute. Anderson v. Goldsmidt, 103 N. Y. 617, 9 N. E. 495. In the case cited the form of the assignment executed by the husband and wife was: "We, Barbara and Joseph Goldsmidt, * * .* hereby assign, sell, set over, and deliver to said John Anderson all our right, title, and interest in and to said policy." So that, if the husband and wife join in transferring all their right, title, and interest in the policy, that is enough. The husband, by a transfer of his interest, does not in terms consent that the wife may transfer her interest; but the act is such that, as said in the Anderson Case, the purpose of the statute is thereby fully answered.

In the present case, the assignment of the husband is separate from that of the wife. It is, however, part of the same transaction, and executed and delivered at the same time, as that of the wife. Upon the paper upon which both assignments are written there first appears a description of the policy and a statement of the premiums paid, and each assignment refers to this description, the one by the expression "the above described policy," and the other by the expression "the foregoing policy." These assignments, being part of one and the same transaction, should be read together; and, if so, they are, together, just as forceful as the assignment in the Anderson Case, and answer just as fully the purpose of the statute. Upon the face of the papers the husband received from Comstock substantially the full value of the policy. He intended, if honest, that Comstock should have an operative transfer. So that, if the intent of the husband is the test, his transfer should be construed to be a written consent. The logic of the Anderson Case leads directly, I think, to the conclusion that there is here a sufficient written consent. The Anderson Case is not overruled or limited by the case of Dannhauser v. Wallenstein, 169 N. Y. 199, 62 N. E. 160. The cases of Slocomb v. Ray, 123 N. C. 571, 31 S. E. 829, 68 Am. St. Rep. 830, and Davidson v. Cox, 112 Ala. 510, 20 South. 500, cited by the counsel for plaintiff, involved the construction of statutes unlike the one applicable to this case.

It follows that the defendant is entitled to the fund. Findings or decision in short form may be submitted.

JJ.

Argued before MCLENNAN, SPRING, WILLIAMS, and DAVY,

McGowan & Stolz, for appellant.

Fowler & Crouch, for respondent.

PER CURIAM. Judgment affirmed, with costs, on opinion of MERWIN, J., delivered at special term.

(29 Misc. Rep. 443.)

TALCOTT v. WABASH R. OO.

(Supreme Court, Trial Term, New York County.

December, 1902.)

1. CARRIERS-EXCESS BAGGAGE-CONTRACT-COMMERCIAL TRAVELER.

Where a commercial traveler pays the proper excess baggage rates on trunks containing, among other things, his employer's goods, and the agent checks the trunks to the traveler's destination, and gives him a voucher for the excess payment, the carrier is bound to his employer, as an undisclosed principal, for the transportation of the goods.

2. SAME-LOSS-ACTION FOR DAMAGES.

Where a traveling man had four trunks, and in them was property belonging to various principals, and all the trunks were delivered to a

and 114 New York State Reporter

carrier, and while in transit on a connecting line a fire occurred, by which three of the trunks were destroyed, and the trunks were not separately weighed, but were charged for in bulk, and in one of the trunks were the personal belongings of the traveling man, there was insufficient evidence on which to base an action for damages on the part of one of the principals.

Action by James Talcott against the Wabash Railroad Company. Complaint dismissed.

Bunnell & Bunnell (Charles E. Hughes, of counsel), for plaintiff. George F. Brownell (George F. Brownell and C. V. Nellany, of counsel), for defendant.

FITZGERALD, J. It is unnecessary to make any detailed statement of the facts as disclosed by the testimony submitted herein for the reason that they are fully set forth in the opinion of the learned court above. Talcott v. Railroad Co., 159 N. Y. 461, 54 N. E. 1. But one question outside of the subject of damages remains to be determined: What, in fact, was the contract entered into by plaintiff's agent with defendant for the transportation of the excess weight of the material carried in trunks for which extra charges were made and paid? Plaintiff's agent purchased from defendant for his own use a passage ticket, which entitled him to carry a limited amount of baggage free. Baggage in excess of this limit might be carried upon payment of an extra charge. The passenger in this case was a commercial traveler in plaintiff's employ, and it appears to be customary with railway companies to carry in the ordinary baggage cars accompanying passenger trains trunks containing samples of the various lines of stock the sale of which the commercial agent is engaged in, and it has been held that he may, by an independent contract, bind the railway company to his employer for the transportation of such property entirely independent of the ordinary agreement which usually arises from the purchase of a passage ticket for the carrying of the passenger's personal effects. Millard v. Railroad Co., 86 N. Y. 441. The law is well settled that a railway company which sells a passage ticket giving the right of travel from one place to another, but which ticket clearly indicates by coupon or otherwise that the journey to be made extends beyond its own terminus, and is to be continued over connecting lines, acts, in so far as the sale of the ticket is concerned, merely as the agent of the connecting line, and is not responsible for baggage further than to transfer it safely to the custody and care of its principal. Milnor v. Railroad Co., 53 N. Y. 363; Kessler v. Railroad Co., 61 N. Y. 538. The passenger in this instance had with him four trunks, and in these trunks property was contained belonging to various parties. Part of said property belonged to plaintiff, part to the New Britain Knitting Company, part to the American Hosiery Company, and the remainder consisted of personal effects. All of the trunks were safely delivered by defendant company at the terminus of its line at Detroit to the Grand Trunk Railway, and while in transit over this latter line a fire occurred by which three of the four trunks were destroyed. A voluntary nonsuit was submitted to upon the trial on the causes of action set

ting forth the loss of the property belonging to the New Britain Knitting Company and the American Hosiery Company, and it is res adjudicata in this case that defendant was not liable for the loss of the passenger's personal effects. Talcott v. Railroad Co., supra. Is it liable for the loss of plaintiff's property? The answer to this question depends on the terms of the second contract. What was the consideration paid, and what was it, as understood and agreed between the parties, that was to be done? Assuming that the payment of $16 constituted the consideration for which all of the excess weight was carried, the property so paid for belonged to different owners. It was charged for in bulk. The trunks were not separately weighed. One was subsequently returned, but there is no evidence of its weight. One of those lost belonged to the knitting and the hosiery companies, and its weight is equally unascertainable. For aught shown to the contrary, the entire extra charge may have been paid for the goods contained in these two trunks; but, to add to this confusion, it appears from the record that the passenger's personal effects weighed only 50 pounds, and that testimony conclusively establishes the fact that he was permitted to carry 100 pounds of some of these various other owners' property free upon his ticket. Upon no possible theory could defendant be held liable for the loss of goods to the extent of this 100 pounds. I have eliminated the purchase, possession, and presentation of the ticket by the passenger at the time of the shipment of the trunks as constituting any part of the consideration for which excess weight was carried; but must not the terms and conditions of that ticket be considered at least as evidence tending to establish what was in his mind when the second agreement was made? Did he not desire to take all the trunks upon the train on which he was personally traveling? Were not the limitations as to the risks assumed annexed to his coupon ticket present before him when making the second contract? Do not the marks upon the pasteboard check and brass checks given him by the baggage agent show that the trunks were to go beyond the terminus of defendant's line, and upon the lines of other railway companies; and would it not be unreasonable to hold, in view of all these facts, that two distinct and different propositions were mutually simultaneously present in the minds of the contracting parties,-one a contract upon the ticket, limited as to defendant's liability by its terminus at Detroit, and the other a contract binding the defendant for the excess covering the entire journey from Chicago to New York? No matter how these. matters may be viewed, it would be utterly impossible, for the reasons previously shown, to arrive at any accurate measure of damages, and plaintiff's complaint must be dismissed.

Complaint dismissed.