and 146 New York State Reporter plaintiff's testimony upon cross-examination, we cannot say that the erroneous charge did not influence the verdict. The judgment and order must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur. BUFFALO MERCHANTS' DELIVERY CO. v. FRONTIER TELE- (Supreme Court, Special Term, Erie County. October, 1908.) 1. TELEGRAPHS AND TELEPHONES (§ 33*) - MUNICIPAL REGULATIONS-CON TRACTS. Where a telephone company voluntarily enters into a contract with a city conferring on the company rights in the public streets, and in consideration thereof fixing maximum rates for service, the company recog nizes the right of the city to fix the rates, and may not repudiate the part of the agreement limiting the rates on the ground that the municipality is not authorized to fix them. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. § 33.*] 2. TELEGRAPHS AND TELEPHONES (§ 33*)-CONTRACTS FOR SERVICE-VALIDITY. Where a private citizen, for whose benefit a contract is made between a city and a telephone company fixing maximum rates for telephone serv ice, voluntarily and with knowledge of the facts contracts with the company for service at a different rate than that prescribed by the municipal franchise, he cannot repudiate his contract and demand a different service at a different rate by virtue of the franchise, on the ground that the company is bound by its franchise to render the service demanded. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. 21; Dec. Dig. § 33.*] Action by the Buffalo Merchants' Delivery Company against the Frontier Telephone Company. On application for an injunction "commanding and requiring the defendant to furnish the plaintiff with telephone service under the contract between defendant and the city of Buffalo, fixing maximum rates for telephone service upon an independent single wire, unlimited service day and night, at the rate of $48 per year, during the pendency of this action, in the place and stead of the service over the four-party wire" now rendered plaintiff by defendant, pursuant, as it appears from defendant's affidavits, to a contract entered into between said parties which the court helds to be now in force. Denied. S. F. Moran, City Atty., for the motion. POUND, J. It has been held in the Rochester Case that, where a telephone company voluntarily enters into a contract with the city conferring rights in the public streets and in consideration thereof fixing maximum rates for service, it recognizes the right of the city to make the same, and may not repudiate that part of its agreement limiting its telephone rates as provided in the contract, on the ground that the municipality is not authorized to make it. Rochester Telephone Co. v. Ross, 125 App. Div. 76, 109 N. Y. Supp. 381. The converse of this For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes proposition is also true: Where a private citizen, for whose benefit the contract is made between the city and the telephone company fixing maximum rates for telephone service, voluntarily and with full knowledge of the facts enters into a contract with the telephone company for service at a different rate than that prescribed by the municipal franchise, he cannot, while said contract is still in force, elect to repudiate his contract and demand a different service at a different rate, by virtue of the franchise, in place and stead of the service he has contracted for, on the ground that the telephone company is bound by its franchise to render the service demanded at the more favor-. able rate. As it has been held that the telephone company may, by entering into a voluntary agreement with the city fixing maximum rates, be estopped from questioning the authority of the city to enter into such agreement, so I hold that the citizen may, by entering into a contract with the telephone company, be estopped from questioning the authority of the company to make such contract with him. Plaintiff has recognized the right of the telephone company to make the contract now in force between it and defendant, and the policy of the law denies that a man may take inconsistent positions, repudiate his acts, and disturb an agreement voluntarily made by him with full knowledge of the facts, although his present claim, asserted independently of his contract, may in fact be legal. Motion denied. SAUTER V. INTERNATIONAL RY. CO. (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) STREET RAILROads (§ 87*)—OPERATION-COLLISION WITH VEHICLES-LIABILITY -NEGLIGENCE. While defendant could move its street car past a vehicle on the street and sound the gong in crossing another street, the vehicle being necessarily close to the car because of the narrowness of the street, the motorman was bound to exercise reasonable care in sounding the gong and starting the car, and if he unnecessarily and violently sounded the gong, so as to frighten the horse, or suddenly increased the speed of the car, so as to cause a collision with the vehicle, by which the persons therein were injured, the company would be liable. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 181; Dec. Dig. § 87.*] Appeal from Special Term, Erie County. Action by Josephine Sauter against the International Railway Company. From a judgment for plaintiff, defendant appealed. Affirmed. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. Norton, Penney & Sears and Dana L. Spring, for appellant. WILLIAMS, J. The judgment of the Special Term should be affirmed, with costs. The action was brought to recover damages for *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes and 146 New York State Reporter personal injuries alleged to have resulted from the negligence of the defendant. Plaintiff was out driving with a young man, with a horse attached to a runabout. While they were passing through a narrow street, in which the driveway beside the car track was quite narrow, one of defendant's cars passed the rig in which plaintiff was riding. The front part of the car passed by safely, but the back steps struck the wheel of the runabout, and the plaintiff was thrown out and injured. The finding of the jury that the plaintiff and the young man driving with her were free from contributory negligence was justified by the evidence. As to the negligence of the defendant the court left two questions to the jury: Whether the speed of the car was increased unnecessarily before it had fully passed the rig; and whether the gong of the car was sounded unnecessarily, and the horse was thereby frightened. The jury was instructed to find whether, in either of these respects, the defendant was guilty of negligence which caused the accident and injuries. This instruction was approved of by the court at Special Term, particularly with reference to the sounding of the gong. The trial court and the Special Term were correct as to the law. While the motorman had the right to move his car along past the rig, and to sound the gong as he was about to cross an intersecting street, yet, considering the narrow space in which the rig was placed, and its necessarily close proximity to the car, the motorman was called upon to exercise reasonable care in the sounding of the gong and in starting up his car, so as not to endanger the persons in the rig. If, disregarding this duty, he unnecessarily and violently sounded the gong, and frightened the horse, and suddenly increased the speed of his car, so as to be unable to stop it, if there was likely to be a collision, he was guilty of negligence, and if the accident resulted therefrom the defendant might be held liable therefor, and for the injuries to the plaintiff. In the case of Mayer v. N. Y. C. & H. R. R. R. Co., 55 Hun, 608, 8 N. Y. Supp. 461, affirmed 132 N. Y. 579, 30 N. E. 867, Mr. Presiding Justice Van Brunt considered the rights and duties of steam railroads and travelers on the streets with vehicles, and among other things said: "The railroad company, having the right to use the whistle, could not be charged with negligence in its use, unless there had been an improper or abusive exercise of that right. The jury could not find that the defendant was guilty of negligence in blowing this whistle, unless there had been, as already stated, an improper exercise of this right under all the circumstances which surrounded the defendant in the operation of its road at this particular 10cality. This question was distinctly presented to the jury, and they were instructed that in case the defendant had abused the right to sound the whistle, that it had sounded it in an improper place, too frequently, unnece sarily, or improperly, because of the nature of the locality through which their track ran and the road was operated, they might find the defendant guilty of negligence. The jury certainly had no right, unless some of these elements were present, showing an abuse by the defendant of the right which they had, to find the defendant guilty of negligence; and it was only because some of these elements showing an abuse of the right might have been fond to be present that the court submitted the question at all to the jury. This is a reasonable rule, was approved by the Court of Appeals, and I think bas never been changed since it was laid down in 1890." I do not think the late case of Hoag v. S. D. M. Co., 192 N. Y. 412, 85 N. E. 662, suggests any different rule. That case is clearly distinguishable. There was a close question of fact in this case whether there was negligence in either of the respects charged and the accident resulted therefrom. The defendant claimed there was no violent sounding of the gong, and no sudden and rapid increasing of the speed of the car, but the accident was caused by the driver turning his horse's head away from the car after the front part had passed the rig, and that the front wheel was thus turned so that the rear steps of the car struck it. It is argued quite persistently that the verdict in this respect was contrary to the evidence, against the weight thereof, and should for that reason be set aside and a new trial granted. I think not. The verdict is small. A new trial would not be likely to aid the defendant, and, inasmuch as the jury is to have the last say anyway, I think the case better be affirmed now. All concur. BURKE v. CONTINENTAL INS. CO. OF CITY OF NEW YORK. (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) INSURANCE (§ 328*)-ACTION ON POLICY-EVIDENCE-INSURABLE INTEREST. After insured had sold the insured property to another under an agreement making the seller liable for loss or damage thereto before delivery, except loss by fire, the parties to the agreement changed it before the loss, so as to make insured liable for such loss. Held, that the change preserved the insurable interest under a policy which covered property sold by insured, but not delivered, for which it might be held liable, so that its assignor could recover under the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 795; Dec. Dig. § 328.*] McLennan, P. J., and Robson, J., dissenting. Appeal from Special Term, Erie County. Action by William E. Burke against the Continental Insurance Company of the City of New York. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted. See, also, 91 N. Y. Supp. 402. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. Shire & Jellinek and Vernon Cole, for appellant. WILLIAMS, J. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide event. The action was brought to recover upon a policy of fire insurance. There have been two trials of the case. Upon the first trial, judgment was ordered for plaintiff. There was an affirmance in the Appellate Division, but a reversal in the Court of Appeals. The judgment from which this appeal was taken was ordered for defendant on the second trial. The controversy has arisen over the question as to whether the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 112 N.Y.S.-55 and 146 New York State Reporter plaintiff's assignor, the Cunningham Company, had an insurable interest in the property destroyed at the time of the fire, so as to give plaintiff a right of action to recover damages for the loss thereof. The property was the subject of an agreement between the Cunningham Company and the Independent Company, both foreign corporations. The former was a manufacturer of glass, and the latter a dealer in glass. By the agreement the Cunningham Company sold to the Independent Company all the window glass it had on hand and such as it should manufacture some time in the future. There were provisions in the agreement as to when title to the glass should pass to the purchaser, and as to the delivery thereof, and the custody of the same until delivered. It was agreed, among other things, that the seller, until the glass was shipped, should be responsible, and liable for and charged with the custody and safety of the glass stored, and with any and all loss thereof or damage thereto, except loss by fire. It was further agreed that the purchaser should insure the property but the sellers should pay the premium. This agreement was made December 19, 1900. The policy had been taken out the 4th day of May, 1900, and was in force when this agreement was made. It provided for insurance of property owned or held in trust by the Cunningham Company, or sold, but not delivered, for which it might be held liable. When the agreement came to be made providing the Cunningham Company should not be liable for loss by fire, it was evident the policy would no longer cover the property. In February, 1901, a short time before the fire (which occurred April 3, 1901), the officers of the two companies had an interview on this subject, appreciated the condition of things, and agreed that the clause in the agreement should be changed, and that the Cunningham Company should be liable for the loss by fire. This was done so as to render a change of the policy unnecessary. The court upon the first trial found as matter of fact that this change in the agreement was made, and held the defendant liable for the loss. The Court of Appeals, in its opinion for a reversal, made no reference to this change, but treated the written agreement as in full force when the fire occurred. A motion for reargument on this ground was made; the decision of the trial court and the Appellate Division having been based upon this change of the agreement. The Court of Appeals then, in a brief memorandum, stated that finding of a change of the agreement was without evidence to support it. The evidence on this subject was meager, but was supposed to be sufficient to base the finding of a change upon. On the last trial the evidence was given in detail, was entirely uncontradicted, and was not only sufficient to support such a finding, but practically precluded any other finding. The court nevertheless held and found as a fact that no change was made. This finding, if upheld, absolutely prevents a recovery by the plaintiff, because the facts will not be examined by the Court of Appeals. The finding is contrary to the evidence, against the weight of the evidence, and should not be permitted to stand. The defense is merely technical, having no real merit in it. The defendant received its premiums. Its agent, Brown, knew of the condition of things, and advised the parties that the policy covered the property under the agree |