the city of New York for use as a park in the same way as was specifically provided in the aqueduct act, it was imposed upon by some of the devices against which the constitutional provision was intended to guard? There is nothing on the face of the bill, and nothing suggested in the manner of its enactment, that would justify such a conclusion. In the Banks Case, supra, this court further said, with reference to the proper construction of this provision of the constitution: "It is not necessary, in order to avoid a conflict with this article of the constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into, or made a part of, the special statute. The right is given, the duty declared, or burden imposed by the special statute; but the enforcement of the right or duty, and the final imposition of the burden, are directed to be in the form and by the procedure given by the other and general laws of the state. Reference is made to such laws, not to affect or qualify the substance of the legislation, but merely for the formal execution of the law."

The learned counsel for the corporation, conceding the propriety of the rule here laid down, insists that it goes no further than to permit a reference in the enactment of a statute to some other general law for the purpose of pointing out the proper procedure. It is true that the reference in that case was to a general law, and the language of the court conformed to the nature of the case under consideration. But there is no reason to believe that, if the reference in that case had been to a local statute, the decision would have been otherwise, as such a distinction would have no support in reason or authority. This appeal cannot be sustained without holding, in effect, that every statute, general or local, must contain within itself every detail necessary to its com. plete execution, and that when the lawmakers desire to adopt the procedure, or some other matter of detail contained in a local statute, that cannot be done by a suitable reference, but the same must be cast out of the other statute, and actually inserted in the new one, mutatis mutandis. Such a construction of this section of the fundamental law, besides producing all the mischief already pointed out, would, as was said in People v. Squire, 107 N. Y. 602, 14 N. E. Rep. 820, lead to innumerable repetitions of laws in the statute books, and render them not only bulky and cumbersome, but confused and unintelligible, almost beyond conception. The framers of this provision could never have intended to introduce into our statute law such elements of confusion and uncertainty. Their • purpose was to require bills introduced in the legislature to be presented in such form, and their essential provisions expressed in such language, that the effect of the proposed enactment might be understood by legislators of reasonable intelli. gence. To carry out this intention, it is

not necessary to give to the amendment a literal construction. The general ob ject will be satisfied by giving it an interpretation more reasonable, and less stringent, than that contended for in support of the appeal. Union Ferry Co. Case, 98 N. Y. 148.

When a statute, in itself and by its own language, grants some power, confers some right, imposes some duty, or creates some burden or obligation, it is not in conflict with this constitutional provision because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure, or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation. In this case the main object of the statute was to confer power upon the city to acquire lands for a certain purpose, and that power is expressed in appropriate language; but the procedure by means of which the lands were to be condemned, and the administrative acts on the part of the city authorities necessary in order to procure the money for the payment of the awards, are designated by reference to another statute. Granting that the aqueduct law was local, as urged by the counsel for the corporation, still it was an act of such great public importance that the members of the legislature might be supposed to have been even more familiar with all of its provisions than with many general laws. The statute in question did not provide literally that the aqueduct law should be made or deemed a part of it, nor that any part thereof should be applicable, but that the proceedings for condemning the lands, and raising the money to pay for them, should be the same; and hence the statute cannot well be held to be repugnant to the letter,and much less to the spirit and object, of the constitutional provision. Whether the city authorities, and especially the corporation counsel, were vested with discretion, with respect to the execution of this statute, in the sense that they could not be compelled to move by mandamus, is a question not argued, and which all the parties have evidently intended to waive. The order appealed from should therefore be affirmed, with costs. All concur, except EARL, C. J., not voting.

IN RE STANFIELD'S ESTATE. (Court of Appeals of New York. Oct. 4, 1892.) WILLS-TRUSTS-WHEN LEGACY OF INCOME BRCOMES PAYABLE.

When a will gives a sum of money, after the payment of testator's debts, to the executor, in trust to invest the same in a certain class of securities, and pay the income to the beneficiary for life, the beneficiary is entitled to the income derived from the fund from the date of testator's death. 18 N. Y. Supp. 913, affirmed.

Appeal from supreme court, general term, first department.

Petition of Hugh M. Stanfield, as beneficiary under the will of Mark M. Stanfield, deceased, for an order directing the pay. ment of interest on the income devised to him. The order granting the petition

was affirmed at general term, (18 N. Y. Supp. 913,) and the Knickerbocker Trust Company, executor, appeals. Affirmed. Lowrey, Stone & Auerbach, for appellant. Wm. A. Boyd, for respondent.

John Notman, for general guardian.

MAYNARD, J. The respondent is given in the will of his father the income of $20,000 for life. The estate was inventoried at $300,000. There were bequests of the income of various sums, aggregating, with the respondent's, $85,000. It is undisputed that, after the payment of all just debts, the income-bearing principal of the estate will be largely in excess of this sum. The decedent's property was so invested at the time of his death as to be productive of revenue, and the income received by the temporary administrator and the executor from May 28, 1890, to February 12, 1892, was over $30,000, or at the annual rate of 6 per cent. upon its inventoried value. The executor is directed in the will to invest $20,000 in bonds and mortgages or government bonds, and pay over the income to the respondent; but this in vestment has not been made. Upon a proceeding properly instituted, the surrogate's court made an order directing the executor to pay the respondent the interest on $10,000 at the rate of 3 per cent. annually from the testator's death until the further direction of the court. Both parties appealed to the supreme court, where the order was affirmed, without costs, and the executor has brought this appeal, upon which the attorneys for the residuary legatee also file a brief for a reversal of the order.

Where the income of an estate or of a designated portion is given to a legatee for life, we think it is clear that be becomes entitled to it whenever it accrues; and, if the estate is productive of income from the death of the testator, he can require the executor to account to him for the income from that time. The rule that general legacies shall not bear interest un til the expiration of one year from the grant of letters testamentary or of admin. istration (In re McGowan, 124 N. Y. 526, 26 N. E. Rep. 1098) has no application in such a case. It is, by its terms, limited to general legacies, payable out of the corpus of the decedent's estate. In the present case the bequest is not of a part of the principal of the estate, or of any property pos. sessed by the testator in his lifetime, but of that which is to arise or accrue after his death from a specified fund, to be set apart for that purpose. It is the income which constitutes the respondent's legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself; and his effort, therefore, involves no infringement of the rule regulating the payment of interest upon general legacies.

It is argued that the bequest of the income to the respondent, and of the principal sum out of which it is to arise to the residuary legatee, are to be treated as but one legacy, payable to different persons; and that, as the executor is directed to invest the principal sum in a certain class of securities, and pay over the income to

the respondent, he has the statutory year in which to make the investment, and that thus the case is brought within the operation of the rule upon which appellant relies. Such a construction cannot be adopted without doing violence to the language of the will. The gift of the income is independent of the gift of the principal, and the right to the income does not depend upon the investment, but was created and exists regardless of it. The direction to the executor with respect to the investment of the fund has reference to the administration of the trust, and cannot be available to defeat the legatee's title to income accruing previously to the time when the investment is required to be made. Until it is made, an equivalent in value of the property out of which the fund is to be raised must be deemed to stand in place of the investment, and whatever income arises from it meanwhile belongs to the legatee to whom it has been expressly given.

The rule which deprives the legatee of interest upon a general legacy for the period of one year is not founded upon any presumed intent of the testator. It had its origin in the ecclesiastical courts, aud was, to a certain extent, a rule of convenience. It was also, in part, the outgrowth of the ancient doctrine that the assent of the executor was necessary to complete and perfect the title of the legatee, and to authorize him to take possession of his legacy; and the period of one year from the testator's death was fixed upon as a reasonable time in which the executor must determine whether he would take upon himself the execution of the will. At the end of that time, he was required either to renounce the appointment or be prepared to liquidate the debts and legacies. When this rule was adopted, the principal, if not the sole, assets of a decedent's estate were, ordinarily, not interest bearing or income producing; and hence there was both justice and propriety in deferring, not only the time of payment of a legacy, but also the right to interest thereon, until the personalty could be converted into money for its satisfaction. At the present time the personal estate of a testator is frequently made up of securities or investments bearing interest or yielding an income, and in such cases there does not seem to be any rational grounds upon which the rule can rest, except for such brief period of time as the money required to pay the legacy is actually lying idle and uninvested in the executor's hands. The executor must account for the increase of the estate from the testator's death, and so it will often happen that such increase will fall into the residuary estate, and go to the legatees but remotely entitled to the testator's consideration, to the prejudice of general legatees who had the principal claim upon his favor, and for whom he undoubtedly intended to make immediate provision. Such would be the practical result in this case if the appellant succeeds in its contention. The income of $20,000 given to the respondent, a son of the testator, would, for, a period of nearly 14 months, be wrested from him, and paid to the residuary legatee, a

grandson, who is otherwise munificently remembered in the will. We are asked to cause this to be done, not by virtue of the command of any statute, but because a rule formulated under different conditions than now exist, and founded in part upon a legal fiction, seems to require it. While we recognize the binding force of the rule, we are not disposed to extend the field of its operation to other than general legacies, payable out of the body of the testator's estate. There is no difference in principle between the gift of an annuity and the gift of income, with respect to the time when euch begins to accrue; and it is conceded that an annuity is payable from the death of the testator, unless a different time is prescribed in the will. It is true that an annuity usually consists of a gross sum, payable in any event, while income must depend upon the earnings of the estate, or some part of it, after deducting lawful charges and commissions, and, of course, if not earned, cannot be paid. But this is a contingency which affects, not the quality of the gift, but its amount, and the certainty of pay. ment. If the estate is sufficient for the liquidation of debts and other charges, and is so invested as to be productive of income from the death of the testator, a bequest of income to a legatee for life must be construed to invest him with a title to such income from the date of the tes tator's demise, unless there is some provision in the will from which a contrary intent is to be inferred. The statutory time of payment of the income to the legatee is not affected by this construction. He must still wait, as the respondent did, until the expiration of one year from the grant of letters, before payment of the income can be demanded; but he is then entitled to his share of the net income which has previously accrued. There are many authorities which sup. port our conclusion in this case: Cooke v. Meeker, 36 N. Y. 15; Pierce v. Chamberlain, 41 How. Pr. 501; In re Lynch, 52 How. Pr. 367; Powers v. Powers, (Sup.) 1 N. Y. Supp. 636; Barrow v. Barrow, (Sup.) 8 N. Y. Supp. 783; In re Fish, 19 Abb. Pr. 209; Craig v. Craig, 3 Barb. Ch. 76; Hilyard's Estate, 5 Watts & S. 30; Eyre v. Golding, 5 Bin. 472.

We would have been content to have affirmed this order upon the authority of the case of Cooke v. Meeker, supra, but it has been repeatedly insisted in the surrogates' courts that the views of the learned chief justice upon the point here involved were obiter, and therefore not authority to sustain the claim of the respondent; and that the decision of the case turned upon the fact that the legatee was a minor, and that the gift of income was intended for her support and maintenance, and that the case was therefore brought within a well-known exception to the general rule with reference to the payment of interest upon legacies. We do not so read the opinion. While the plaintiff was a minor, it does not appear that the testator stood in loco parentis to her, or that there were any words in the will indicating that the bequest was for her support, further than the direc

tion that the income of a specified sum was to be applied to her use during her lifetime. There were other like bequests of income, some of which were to adults; and the court evidently intended to lay down a general rule for the guidance of the executors and trustees with respect to all such legacies in the will. At page 19 it is said: "The weight of authority undoubtedly now is in favor of allowing the payment of annuities or incomes to commence at the testator's death;" and again, at page 22, after reviewing the cases: "The authorities would seem abundant, therefore, to sustain the doc. trine that when a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator's death. The order must be affirmed, with costs to the respondent, to be paid out of the residuary estate. All concur.

CARPENTER et al. v. GERMAN-AMERICAN INS. Co.

(Court of Appeals of New York. Oct. 4, 1892.) INSURANCE TITLE OF PROPERTY - NOTICE TO AGENT'S SOLICITOR-PROOFS OF Loss-WAIVER -INSURABLE INTEREST.

1. Plaintiff's insurance policy provided that, if insured is not the "sole, absolute, and unconditional owner of the property insured, or if said property be a building, and the insured be not the owner of the land on which it stands by title in fee simple, and this fact is not expressed in the written portion of the policy," it should be void. Held, that the policy was not void under the condition, though plaintiff's title to the realty on which the insured building stood was only a contract of purchase, and that fact did not appear in the policy, where the insurance was placed by a solicitor employed by defendant's agent, and plaintiff informed such solicitor of the condition of his title.

2. In an action on an insurance policy which provided that, in case of loss, plaintiff "shall give immediate notice thereof, and shall render to the company a particular account of said loss under oath," embracing specified facts, the evidence showed that, immediately after the fire, defendant was notified and adjusters examined into the circumstances of the loss; that plaintiff was unable to give the preparation of proofs of loss his personal attention, because of being several times called to another state on business connected with contracts made before the fire; that he employed experts to make estimates of the loss, and an experienced insurance man to prepare the formal proofs. Held that, under the circumstances, a delay of 115 days in furnishing proofs of loss was not, as a matter of law, unreasonable.

3. The insistence of an insurance company to examine insured after receiving proofs of loss is a waiver of any objection to such proofs founded on the delay in furnishing them.

4. One who is in possession of property under contract of purchase from the equitable owner thereof has an insurable interest therein.

Appeal from supreme court, general term, fifth department.

Action by George C. Carpenter and another against the German-American Insurance Company. Plaintiffs had judgment, which was affirmed at general term, (17 N. Y. Supp. 603, mem.,) and defendant appeals. Affirmed.

Martin W. Cooke, for appellant. George Wadsworth, for respondents.

ANDREWS, J. It must be assumed in disposing of this appeal that Andrews, the subagent of Mandeville, before the original policy was issued, of which the policy up. on which this action is brought is a renew. al, was sent by Mandeville to inspect the premises and arrange the insurance, and that he was then informed by the plaintiff that the property upon which the insured building was erected was held under a contract of purchase from the State Bank of Elizabeth, N. J. If this constituted notice to the defendant, then, within our decisions, the policy was not avoided by the printed condition that, if the assured is not the "sole, absolute, and unconditional owner of the property insured, or if said property be a building, and the insured be not the owner of the land on which said building stands, by title in fee simple, and this fact is not expressed in the writ ten portion of the policy, this policy shall be void. Van Schoick v. Insurance Co., 68 N. Y. 434. It appears that Mandeville was a general agent of the defendant, clothed with power to make contracts of insurance and to issue policies, and was furnished with printed forms, which he filled up as occasion required. He was agent for several other companies also, which presumably, upon the evidence, was known to the defendant. Andrews had been employed by him for several years before the policy in question was issued, to solicit insurance, acting as Mandeville's clerk and employe. It has been the common custom and practice of agents of insurance companies, having the power of general agents, to employ subordinates to render services similar to those rendered by Andrews; and we have held that notice to such a subagent, while engaged in soliciting insurance of any fact material to the risk, and which affects the contract of insurance, is notice to the company, and binds the company to the same extent as though it had been given directly to the agent himself. Arff v. Insurance Co., 125 N. Y. 57, 25 N. E. Rep. 1073; Bodine v. Insurance Co., 51 N. Y. 117. The point, therefore, based on the condition as to the Ownership of the insured property, must be overruled.

The

Another question relates to the delay in serving proofs of loss. The fire occurred October 10, 1883. The proofs of loss were not received by the company until February 2, 1884, 115 days after the fire. policy provides that, in case of loss, "the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss under oath," embracing certain facts specified. Under this clause it became the duty of the plaintiff to furnish proofs of loss within a reasonable time. What is such reasonable time may become a question of law, as where there has been a long delay, unexcused, and the company has not waived a compliance with the requirement of the policy. But in cases where circumstances are shown which reasonably justify the delay, or the insured acted with reasonable promptness in view of all the facts disclosed, having regard both to his own situation and the protection of the compa ay, it may be a question for the jury

whether the provision as to proofs has been violated. So, also, it is competent for the company, either before or after the alleged delay, to waive an insistence upon this clause; and such waiver may be express, or it may be implied from conduct inconsistent with an intention to rely upon this defense. In this case it appears that notice of the fire was given by the plaintiff to the company on the same day on which it occurred. Adjusters of companies represented by Mandeville came to the premises a few days afterwards, and examined into the circumstances. The plaintiffs, according to their evidence, proceeded to secure a millwright and another expert to make estimate of the value of the machinery and property burned or injured. When this had been accomplished after considerable delay, the matter of preparing the formal proofs was put in charge of an insurance man, who delayed the preparation for about a month. The principal plaintiff, after the fire and before the proofs were forwarded, was cale i to Philadelphia several times on important business connected with the delivery of cattle under contracts made by him before the fire, and was unable to give personal attention to the preparation and forwarding of the proofs. Under the circumstances, we are not prepared to say that it could be ruled as a question of law that the delay in furnishing the proofs was unreasonable. The performance of the stipulation as to proofs of loss is not made a condition of liability of the defendant by the terms of the policy, but it is a condition of recovery. The furnishing of proofs of loss promptly may in many cases be important to the protection of the rights of the insurer against fraud, and the company may insist upon prompt action by the assured. But when, as in this case, the matter was left open, under the obligation expressed in the policy, without more, we cannot, under the circumstances disclosed, say, as matter of law, that the delay was unreasonable.

We think, also, the insistence of the company upon the right to examine the plaintiffs under oath, upon matters relating to the loss, made in the letter of February 20, 1884, and their subsequent examination by the defendant, was a waiver of any objection founded on the delay in serving proofs of loss. It is claimed that the demand contained in the letter was conditioned upon the assent of the plaintiffs; that such examination should not be construed as a waiver by the company of the objection. The letter is, at least, equivocal. The plaintiffs could not safely refuse to sucmit to an examination, and the letter does not state that the company would dispense with the examination in case the plaintiffs did not acquiesce in the condition. The points as to the proofs of loss, and the exception of the defendant based thereon, are not, we think, tenable.

The remaining question relates to the claim that the plaintiff, at the time of the insurance and of the fire, had no insurable interest in the building which was in part the subject of the insurance. It is doubtless true that the State Bank of Elizabeth, the vendor in the contract of sale to the

plaintiffs, had no legal title to the property embraced therein. It was, however, the beneficial owner. The bank owned the mortgage and bid off the property on the foreclosure in 1877, but its agent at the sale, under advice of its attorney, directed the conveyance to be made to Mr. Kean, the president of the bank, because of the statute of Pennsylvania which prohibited any foreign corporation from acquiring and holding any real estate within the commonwealth,"directly in the corporate name, or by or through any trustee or other devise whatever, unless specially authorized to hold such property by the laws of the commonwealth." Purd. Dig. § 56, p. 292. Mr. Kean paid nothing for the property, and acknowledged that it belonged to the bank, and never made any claim to it whatever. He knew of the negotiation between the bank and Carpenter for the sale and purchase of the property, and advised and consented to the contract by the bank, and was fully acquainted with the fact that Carpenter was paying the purchase money of the land, in reliance upon the ownership of the property by the bank. The bank, Carpenter, and Kean acted in good faith, supposing that the bank held the legal title to the land. The oflicers of the bank had forgotten that the title had been taken in Kear's name, and for this reason the contract with Carpenter was made in the name of the corporation.

We deem it unnecessary to go into the abstruse questions which have been argued at the bar as to the legal and equitable right to the land, as between the bank and Kean, growing out of the conveyance to the latter of the legal title on the foreclosure sale. Assuming (but without deciding) that the bank could not, in view of the Pennsylvania statute, have established a trust in its favor, enforceable against Kean, or compelled him to convey the legal title to the corporation, yet it is, we think, very plain that, as between Carpenter on the one side, and the bank and Kean on the other, Carpenter, on the performance of his contract, could have maintained a suit in equity to compel the bank and Kean to convey the land. Kean would be bound by the plainest principles of equity and justice to make the contract good, which was entered into with his advice, and upon which Carpenter had advanced his money. It would be no answer that Kean did not act mala fide, but supposed that the legal title was in the bank. He stood by and encouraged the sale, and knew of the payment of the purchase money by Carpenter in reliance upon the right of the bank to sell the property. Storrs v. Barker, 6 Johns. Ch. 166; Continental Nat. Bank v. National Bank of Commonwealth, 50 N. Y. 576; Thompson v. Simpson, 128 N. Y. 270, 28 N. E. Rep. 627. His mistake prejudiced no real right or equity in the land. He asserted none therein, and now acknowledges that the bank is entitled to the benefit of the policy. The principle of equitable estoppel applies with persuasive force against Kean, preventing him from asserting, as against Carpenter, any right in the land; and a court of equity would require him to convey, so that the just ex

pectations of Carpenter should not be disappointed. Carpenter had, therefore, &n insurable interest in the property. The questions decided dispose of all the material points in the appeal. The result is that the judgment should be affirmed, with costs. All concur.

BARRETT v. PALMER et al.

(Court of Appeals of New York. Oct. 4, 1892.) JURISDICTION OF STATE COURTS-BROOKLYN NAVY YARD-TRESPASS.

The fact that the state has ceded land in the city of Brooklyn, and political jurisdiction over it, to the United States, for the purpose of a navy yard, does not oust the state courts of jurisdiction as to private rights and remedies within such territory, at least so long as congress makes no new regulations touching the administration of justice in civil actions arising therein; and therefore the city court of Brooklyn, by virtue of the jurisdiction conferred on it by Civil Code, § 263, subd. 3, respecting injuries to land within the city, has jurisdiction of an action of trespass committed on a part of such ceded land, which part had been leased by the federal government to the city, under whom plaintiff claims as a sublessee. 16 N. Y. Supp. 94, affirmed.

Appeal from city court of Brooklyn, general term.

Trespass quare clausum fregit by Mary H. Barrett against William H. Palmer and others. From a judgment of the general term, (16 N. Y. Supp. 94.) affirming a judgment of the special term in plaintiff's favor, defendants appeal. Affirmed.

M. L. Towns and Henry C. De Witt, for appellants. appellants. Hirsh & Rasquin, (Hugo Hirsh, of counsel,) for respondent.

O'BRIEN, J. The plaintiff recovered a verdict against the defendants in an action alleging a trespass. The facts are undisputed that in February, 1889, the defendant Palmer leased to the plaintiff certain booths or market stands in the Wallabout market, Brooklyn, for two years, and that the plaintiff had paid to him the rent reserved by the lease up to July, 1889; that in April, 1889, the defendants, acting together, without right took possession of the stands, ejected the plaintiff there| from, and destroyed or converted to their own use certain fixtures and other prop| erty, and have ever since excluded the plaintiff from possession. There can be no doubt that the general jurisdiction of the city court of Brooklyn, where the trial was had, extends to actions of trespasc such as this. Code, §§ 263, 3343. The only question raised at the trial that is now open for review would apply to any other state court as well as to the one in which the trial took place. The locus in quo was originally a part of the Brooklyn navy yard, jurisdiction of which had been ceded to the United States by chapter 355 of the Laws of 1853. The federal authorities sub. sequently leased a part of the land acquired under this act to the city of Brooklyn for a market, or at least permitted the city to use it for that purpose. The authorities of the city leased several market stands to the defendant Palmer, and he sublet some of them to the plaintiff. At the close of the evidence the counsel for the defendants