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Forbes, in pronouncing the opinion of the court in that case, after referring to section 6 of the act of 1873, above cited, and also referring to the act of 1845, says:

"I have been unable to jind any law which wholly revives the act of 1845. While the peculiar wording of section 6 of the Laws of 1873 predicates the validity of local option upon some prior act of the legislature, which it was assumed was then in force, permitting local prohibition, it will be seen, however, by reference to section 41, C. 401, Laws 1892, that local option is, in effect, re-enacted without prescribing definitely and at length, as did the law of 1815, the method of preparing the ballots, and the casting of the vote of the people. This act is so framed that it does not make section 41 of the act of 1892 dependent upon any prior law of this state, but, in terms, it does give the right to a majority of the voters of a particular town to say by their ballots that local prohibition shall be in force in that town when a majority of the voters may so determine."

After citing section 41 of the act of 1892, he proceeds as follows: "It is true that there is no method pointed out by which the ballot shall be prepared in which the voter shall say he is in favor of local prohibition, but he surely has the right to nominate in caucus, or without such nomination, to place upon his ticket any name, and vote for any person, whom he knows to be in favor of not granting licenses, (citing Montgomery v. O'Dell, (Sup.) 22 N. Y. Supp. 412;) and if a majority of the voters of the town so express themselves by their ballot, voting for an excise board upon whom they rely not to grant licenses, they have a perfect right to do so; and in that manner they do, by local option, in effect establish local prohibition, within the meaning of section 41 of the Laws of 1892; and the commissioners so elected have an undoubted right, relying upon their own judgments, supported by a majority of the legal voters, to refuse all licenses, and thus establish, in fact, loc:il prohibition under that law."

This, it seems to me, affords a complete answer to the application in this proceeding to compel the commissioners of Warsaw to grant a license to the relator. The learned justice in that case also says, at page 915:

"It is too plain to admit of any serious dispute that it was not intended by the legislature of this state to substitute a justice of the supreme court in the place of the commissioners of excise when they refused to act favorably in granting a license to any person; and, if that were the object of the statute referred to, the act is clearly unconstitutional."

And he proceeds to give his reason for that conclusion, the substance of which is that a justice of the supreme court cannot and should not be compelled to exercise any except judicial functions, and citing with approval the decision of Justice Parker in People v. Waters, (Sup.) 23 N. Y. Supp. 691. Justice Parker, in his opinion in that case, says, at page 693:

"But it inay be said that the legislature could provide for two administrative tribunals to pass upon the same question, of which the board or excise sjould be the first, and the discretion of the last to be final; that the second or reviewing official should not be governed by the legal rules gorerning a review of an administrative board, but should pass upon the application in the same roanner as the st:tute authorizes boards of excise to do; that it was intended by this act that the last official to exercise the discretion permitted by the statute should be a court or a judge thereof. Clearly such could not have been the intention of the legislature, for it was without power to require the supreme court or the justice ihereof to perform other than judicial duties."


And Judge Parker, with his usual ability and clearness, proceeds to establish this position both by reason and authority.

It seems to me that the claim of the relator in this proceeding substantially comes within the condemnation of the paragraph just cited from Judge Parker's opinion. The court is substantially asked here to overrule the judgment and discretion of the commis. sioners, and direct them absolutely to issue a license to the relat

The statute (chapter 481, Laws 1893) does not command the court to make the order asked for here, but the court may make an order commanding, etc., so it is discretionary with the court even should the court be of the opinion that, in a strictly legal sense, the license has been arbitrarily denied, or denied without good, legal reasons. No one has the right to demand a license. 23 N. Y. Supp. 691, 913, supra.

The question remains whether the refusal in this case to grant a license to the relator was arbitrary, or without good reasons. The reference to the statute hereinbefore made shows that the commissioners had the power and might grant the licenses, but are not commanded to do so. Whatever else may be said, these commissioners have acted in good faith, believing that, as they were elected not to do the very thing that the relator asks, they are honorably bound by their obligations to the people electing them not to do. It cannot be said that they were acting willfully, or that they were intentionally violating the law. Were they acting arbitrarily or without good reasons in a legal sense? I cannot find that they were. The commissioners were asked by the relator to be false to their obligations and pledges, and, because they refuse so to do, the court is now asked to compel them. It is, at least, an ungracious office that the court is called upon to perform in this instance, and, for all the reasons stated above, it will not be done. It follows that the commissioners, in refusing a license to the relator, did not act arbitrarily or without good reasons, but that the application for a license to the relator was denied for good and sufficient reasons, and therefore the determination of the board of excise commissioners of the town of Warsaw must be, and hereby is, sustained. An order may be entered quashing the writ of certiorari, and dismissing these proceedings accordingly. Costs are not allowed to either party.


(Supreme Court, Special Term, Orange County.

February 15, 1893.)


Laws 1876, c. 341, § 1, as amended by Laws 1877, c. 321, provides that “no life insurance company" shall have power to declare a policy for feited or lapsed for "nonpayment of any annual premium or interest," unless notice to pay within a certain time has been given. Laws 1885, c. 328, § 1, provides that Laws 1876, c. 341, shall not apply to policies issued on monthly or weekly installments of premiums, if the applications there for waive the notices. Held, that the act of 1877 applies to policies pay

able out of a fund created by assessments. 2. SAME-HEALTH OF INSURED-INSANITY.

In an action on a life insurance policy, it will not be held as a matter of law that the insanity of the insured when the application for insurance was made was an unsound condition of health.

Action by William Jacklin against the National Life Association of Hartford, Conn., to recover the amount of an insurance policy issued by defendant upon the life of Venie Jacklin, daughter of plaintiff, payable to plaintiff. Judgment for plaintiff.

F. V. Sanford, for plaintiff.
John M. Gardner, for defendant.

BROWN, J. The policy provides for the payment of $100, "solely from the funds accumulated from payments of its insured;" also that, if such accumulation on hand shall be insufficient to pay accrued claims for an assessment on contracts in force of 5 per cent, on single premium, and if the whole fund from assessments and accumulations is insufficient to pay all claims, it shall be distributed pro rata, etc. It has been stipulated that “the sum to be recovered on this policy, if anything, is $73.97." In view of this stipulation, the point made of a lack of proof of amount due under the contract is without force. Proof of accumulation by the company and the amount that should be realized by an assessment could go no further than the stipulation, and was unnecessary. I think chapter 321, Laws 1877, is applicable to this policy. Such is the clear implication from chapter 328, Laws 1885, and, while it might be a debatable question if the act of 1885 had not been passed, the question does not now admit of serious dispute. The point was not presented in Ronald's Case, 132 N. Y. 378, 30 N. E. Rep. 739; neither was the act of 1885 called to the attention of the court.

I am also of the opinion that the question of the breach of warranty must be decided in the plaintiff's favor. The question in substance was, “What is the condition of the health of your mother?” and the answer was, "Sound.” The mother was then in the Binghampton Lunatic Asylum, afflicted with “chronic mania," a serious form of insanity, and at times violent, profane, and obscene. The physician testifies that, at the time of her admission, she was in fair physical condition, and that in 1891 (the time of the

The statutes referred to are as follows:

Laws 1876, c. 341, § 1, as amended by Laws 1877, c. 321: "No life insurance company doing business in the state of New York shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of nonpayment of any annual premium or interest, or any portion thereof," unless notice to pay the same within a certain time is given.

Laws 1885, c. 328, $ 1: "Chapter 341 of the Laws of 1876, entitled 'An act regulating the forfeiture of life insurance policies,' shall not apply to policies issued upon monthly or weekly installments of premiums: provided, the notices therein mentioned shall be waived in the application for such policies, or in the additions to such applications."

application for insurance) she was eating and sleeping well, er cept when she had periods of mental disturbance. Both parties have, by withdrawing the case from the jury, treated this question as one of law, and the proposition therefore is, can the court determine, as a question of law, that an insane person is necessarily in unsound physical condition? No evidence has been given to show whether an insane person is considered among medical men as in an unsound condition of health, and the court possesses no expert knowledge which enables him to solve that question as one of fact. But obviously mere mental aberration will not necessarily constitute ill health. To what extent mental disturbance will destroy or interfere with the functions of the body must depend upon circumstances of each case. It is a question of fact, in each instance, to be solved by the evidence. There is nothing before me that compels me to say that the mother was in unsound health, and, as the burden of so proving rests upon the defendant, the decision, in the absence of proof, must be against it. Judgment for plaintiff for $73.97.

(71 Hun, 164.)

JSELIN V. STARIN. (Supreme Court, General Term, Second Department. July 28, 1893.) HIGHWAYS-ESTABLISHMENT-DEDICATION AND USER.

Where plaintiff's gra or, more than 50 years ago, by petition, secured from the state a grant authorizing the extension of a boat landing oa his land for "public convenience," which necessitated the use of a certain road from the boat landing to the highway, and the road has ever sink. been used by the public, such road has become a public highway, both us the long use and by such dedication and acceptance. Appeal from special term, Westchester county.

Action by Adrian Iselin against John H. Starin to restrain de fendant from using a certain ferry dock on plaintiff's premises and a certain road over the latter, in which defendant filed an equitable counterclaim, asking that obstructions placed on such road be re moved. From a judgment for plaintiff, defendant appealed. Re versed.

Argued before BARNARD, P. J., and PRATT, J.

C. H. Roosevelt, (Cornelius E. Kene, W. W. Goodrich, and Peter Cantine, of counsel,) for appellant.

Martin J. Keogh, (Calvin Frost, of counsel,) for respondent.

PRATT, J. This controversy relates to a road leading from the old main highway, which runs from Pelham to New Rochelle, in Westchester, to a ferry at tide water on a creek formed by the waters of Long Island sound, as they ebb and flow, opposite Glen island. It is the approach for the public by land to the present Glen Island ferry. Plaintiff claims that it is a private road, and has obstructed it. Defendant contends that it is a public road; and, by way of equitable counterclaim, asks that the obstructions be removed. The defendant's Glen island was formerly known as

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"Locust Island." The plaintiff's main property is also an island, now known as "Neptune Island," formerly called "Moses Island." It was originally separated from the main land by a small creek, across which a stone causeway was built; so that street cars and wagons now run to, or substantially to, the defendant's ferry. The testimony shows that this Moses or Neptune island was owned by William Turpin in 1833, who conveyed the same to Catherine Wyman, who then owned the adjacent mainland. This Neptune is. land and the mainland then passed to Jacob Rhinelander, through Catherine Wyman's will and deeds by her executors, in 1836. This deed conveys the road and causeway in question. The island then passed under Rhinelander's will to the Underhills in 1837, who conveyed the same, with the road and causeway, to Philip Underhill in 1850, and the mainland was conveyed to other parties. Philip Underhill then conveyed the island, road, and causeway to Isaac Underhill in 1859. Thorne and wife also gave Isaac Underhill a conveyance affecting some part of these premises in 1874, and in the same year Isaac Underhill conveyed the same to Higgins, who mortgaged to Guion. The mortgage was assigned to Philip R. Underhill, and was subsequently foreclosed, and the premises were purchased by this Mr. Underhill in 1880, who meantime received other conveyances from Mr. Higgins. He, in 1882, conveved the premises to Fredericks, who conveyed back to Hannah Higgins in the same year, and she conveyed to plaintiff in 1885. Each of these conveyances assumes to convey the road and causeway in question. The defendant's title to Glen island comes from Davenport, who conveyed to Depau in 1847, nothing being said about any landing or road. Depau conveyed to Livingston in 1818, and he conveyed to Godwin in 1854. These Depaus seem to have conveyed to Foulke in 1855, and Godwin conveyed to Foulke on the same day. Foulke then conveyed to Schmidt in 1862. This deed assumes to convey a right of way over the road in question from the old Pelham road to a steamboat landing, to be presently men. tioned, and the use of the ferry dock as used by the Foulkes, together with the right to land thereon and the right of ferriage and docking. Schmidt died, and his executors, in May, 1879, conveyed to defendant, granting like subject matter. It thus appears that Foulke owned Glen island, and Isaac Underhill, or his estate, owned Neptune island and the road, from about 1858 or 1859 at least until after 1861. During this interval, Foulke used this dock for ferry purposes to Glen island as a landing, having a regular ferry propelled by horse power. Foulke and Isaac Underhill contributed to the expenses of keeping this road in repair. Foulke paid him $25, January 26, 1858, as "his proportion of the expenses or repairs of the causeway and roads." This fact is at. tested by Underhill's receipt, which defendant produced. A like receipt, signed by “Philip R. Underhill, for I. Underhill's Estate," attests the facts that Foulke, January 11, 1861, paid him $50, “for his proportion of expenses repairing causeway and bridges for two years to January 1, 1861, on Neptune House island." In 1868,

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