what occasions it was so called, so as to enable the jury to say what land the term "Fish lake lot" in the several grants in defendant's chain of title refers to. Judgment reversed, new trial granted, costs to abide event. Opinion by Follett, J.; Hardin, P. J., and Boardman, J. concur. LIBEL. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Defendant pleaded the truth of the publication in justification and also in mitigation. One S. was general agent of defendant for the distribution of its newspapers in a certain district, and appointed plaintiff a local agent for that purpose at Fulton and its vicinity. He testified that plaintiff, at the time he was appointed, represented that he was the owner of a house and lot. This fact, if so stated, is conceded to be Bruce J. Kimball, applt., v. The untrue. Defendant was permitted, Herald Co., respt. Decided Jan., 1885. In an action for libel in publishing plaintiff as a swindler in having obtained credit by false representations, where the truth of the statement is pleaded in justification and mitigation, evidence that defendant's general agent, to whom the representations were made, communicated them to defendant and that it relied upon them, is competent in mitigation of damages. Appeal from judgment entered on verdict of a jury for defendant, and from order denying motion for a new trial on the minutes. Action for libel. The complaint alleged that defendant published, in its daily newspaper, Sept. 13, 1880, the following article: "Mr. Kimball owes The Herald Company a debt contracted in the course of his business relations with us which he refuses to pay. His account was permitted to run on because he grossly misrepresented his pecuniary circumstances to us. When we discovered the trick we resolved to nip his swindling operations in the bud, and took steps which will enable us to show publicly in court what manner of man he is.” under objection, to show that this representation was reported by S. to defendant's president and general manager. S. N. Dada, for applt. Held, No error. Whether the information was true or false it was competent evidence in mitigation of damages if defendant relied upon it in making the publication. 81 N. Y., 246; 7 Robt., 319; 34 How., 488. J., defendant's president, was permitted to testify that S. reported to him the representations made by Kimball, and that he relied upon the representations. Held, Competent. 81 N. Y., 246. Also held, That the verdict cannot be disturbed on the ground that it is contrary to the evidence. The evidence of plaintiff and of S., as to whether plaintiff made representations as to his property, is directly in conflict, and it was the duty of the jury to decide as between them. If plaintiff represented that he owned the house and lot it was untrue, as he con cedes. He also concedes that at the time of the publication he was indebted to defendant for newspapers. The jury having found that plaintiff had no cause of action, it is unnecessary to determine whether the charge as to exemplary damages was correct or incorrect. Judgment and order affirmed, with costs. Opinion by Follett, J.; Hardin, P. J., and Boardman, J., concur. FIRE INSURANCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Eliza B. Anderson, respt., v. The Continental Ins. Co., applt. Decided Jan. 9, 1885. A policy of fire insurance was issued by defendant upon property owned by plaintiff, and was sent by defendant to the hotel at which she had been staying for the purpose of being delivered to her. She had left said hotel, and the policy was sent to the person through whom she had made application for it, but it was returned by him with the statement that plaintiff had left the city and he had no knowledge of her wishes in reference to it. Defendant then charged the premiums to plaintiff on its books and sent bills for the same to two places where it was supposed plaintiff might be found, stating that the policy was held subject to her order, but these bills were not received by her. Plaintiff returned to the city during the period named as the life-time of the policy, but made no efforts to pay the premium. In the meantime defendant had procured reinsurance upon the policy, but, the premium not being paid, it cancelled such reinsurance and stamped the policy as cancelled, without, however, notifying plaintiff. The property was subsequently destroyed by fire during the period named as its life-time. Held That such policy was a valid and subsisting insurance at that time, notwithstanding a clause contained therein, that the company should not be liable upon the policy until the premium should be actually paid. A clause contained in a policy of fire insurance declaring that the agent of the company has no authority to waive, modify, or strike from the policy any of its printed conditions, applies only to agencies of the company maintained separately and distinctly from the office of the company itself, and not to the officers and immediate employees of the company. A policy which has become a valid and subsisting contract cannot be cancelled without notice to the person for whose benefit it is issued. The fact that an insurance company has obtained reinsurance upon a policy issued by it, and that entries have been made in its books charging the premium to the insured, may be considered in determining the understanding of the company as to the effect and validity of the policy. Appeal from judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial. A policy of fire insurance was issued by defendant upon property erty owned by plaintiff. This policy was sent by defendant to the hotel in New York city where plaintiff had been staying for delivery to her, but she had left said hotel. The policy was then sent to one M., through whom plaintiff had applied for said policy, and was left at his address. M. returned said policy to defendant with a letter stating that plaintiff had left the city, and he was not advised as to her wishes in respect to said policy. Defendant then charged plaintiff with the premium upon its books and sent bills for the same to two places where it was thought she might be reached, stating that the policy was held subject to her order. These bills were not received by plaintiff. She subsequently, during the period designated as the life-time of said policy, returned to the city, but failed to pay the premium upon the policy. In the meantime defendant had procured reinsurance upon the policy, but, the premium not being paid, it had such reinsurance cancelled and stamped the policy as cancelled, but without notifying plaintiff. Subsequently, but during the time named as the life-time of the policy, the property insured was destroyed by fire, and plaintiff then brought this action upon the policy to recover the value of such property. The policy contained the statement or condition that the company should not be liable upon it until the premium therefor should be actually paid, and this action was resisted chiefly on account of the omission of plaintiff to receive the policy and pay the premium. Wm. Allen Butler and Thos. H. Hubbard, for applt. facts made to appear, because the policy further declared, "That the agent of this company has no authority to waive, modify, or strike from this policy any of the printed conditions." Held, That this provision was not framed in such language as to be rendered applicable to the company and its officers, but was wholly restricted to the business intended to be carried on and transacted by insurance agents maintaining a separate business of their own; and, since this policy emanated directly from the company itself it was within the authority of the persons having the business of the company in charge, under the immediate control and supervision of its officers, to give credit for the premium and waive the provision in question. That that gave it the character of a valid and subsisting contract between defendant and plaintiff, and the insurance could not be cancelled without notice to the insured, and, as no such notice was given, the formal cancellation of the policy was of no ef Benjamin H. Bristow and Ed- fect. 109 U. S., 278. ward Mitchell, for respt. Held, That the facts showed that there was a delivery of the policy by defendant to M., then plaintiff's agent, with the intention that it should take effect as an insurance of her property, and that a credit was given for the premium, thereby waiving the condition requiring its actual payment for the validity of the policy. 7 Hun, 74, 77; 66 N. Y., 613. It was objected that such an effect could not be ascribed to the The court was requested to charge that taking reinsurance was no evidence of an intent on the part of defendant to excuse the payment of the premium, and that entries by defendant in its books not brought to plaintiff's notice were not evidence of defendant's intent toward plaintiff. These requests were both declined. Held, No error. That the court had already properly charged that, while the taking of reinsurance created no liability on the part of defendant to plaintiff, it was a fact which the jury could take into consideration, and that the entry in the books, whereby the premium was charged to plaintiff, was a circumstance indicating the understanding of defendant to be that the policy had become effectual, and that the plaintiff thereby had incurred an indebtedness to the company for the payment of the premium. Judgment and order affirmed. Opinion by Daniels, J.; Brady, J., concurred. Davis, P. J., dissented, holding that the facts did not amount to a delivery of the policy, and an establishment of an indebtedness on the part of plaintiff to the company for the premium which the latter could have enforced by suit against her, inasmuch as the policy was never actually accepted either by plaintiff or her agent. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The production upon the argument of an appeal of the judgment roll showing the reversal of the judgment entered upon such report will not correct the error of the referee in disregarding such report without evidence of said reversal. Appeal from a judgment recovered on the report of a referee. This action was brought to recover the sum of $3,000 as the amount of commissions plaintiffs were entitled to under an agreement made with defendant upon orders received by it in the course of its business upon which plaintiffs had advanced money. The defense was that the agreement under which the commissions were claimed was made by fraud and collusion on the part of plaintiffs and the directors of defendant, and that the money advanced by plaintiffs should be considered. as invested in the business of defendant under a previous agreement between the parties. Another action between the same parties had been tried before the same. referee to whom this was referred, the object of which was to recover back the money claimed by plaintiffs to have been advanced Bolton Hall et al, respts., v. U. by them, and in which the same S. Reflector Co., applt. Decided Jan. 9, 1885. When upon the trial of an action before a referee a report made by him in the trial of a previous action between the same parties is admitted in evidence without objection, the referee, in deciding the case, cannot disregard such report as evidence on account of the fact that subsequent to the submission of the case to him, but previous to his decision of it, the judgment entered upon such report has been reversed upon appeal, because there is no evidence of such reversal before him. defense was set up, and was sustained by the referee. The report of the referee in that action was received in evidence without objection in this action, but it was disregarded by the referee in deciding this case, for the reason that, subsequent to the submission of this action to him, but before its decision, the judgment entered upon it had been reversed, and he considered that it had therefore been deprived of its weight as evi dence, and he rendered judgment in favor of plaintiffs. Opinion by Daniels, J; Brady, J., concurred in result. Edward P. Miller, for applt. Wm. B. Hornblower, for respts. Held, That the fact of the reversal of the said judgment was in no manner at any time proved in this action, and it was therefore a fact which could not be legally known to the referee in the disposition of N. Y. SUPREME COURT. this action, and no weight or effect should have been given to that circumstance by him in its determination. Davis, P. J., concurred, with the understanding that no force was to be given to the report of the referee in the former case in the new trial ordered. That the production upon the appeal of the judgment roll showing the reversal of said judgment did not correct the error of the referee in disregarding the report, for while it has been the practice of the Court to receive upon the hearing of an appeal corrected record evidence to supply defects in proof given of the same facts upon the trial, this rule does not permit independent and additional evidence to be given. That its object is to afford an opportunity to correct informalities in record evidence received during the progress of a trial, and to permit such evidence to be produced for the first time upon appeal. 40 Barb., 449; 45 N. Y., 160; 70 N. Y., 613. That other proof of the defense might have been given if the referee's report had not been put in and received, and it could not be said that a good defense might not have been established by such other proof. Judgment reversed and new trial ordered, costs to defendant to abide event. LOTTERY. GENERAL TERM. FIRST DEPT. The People, respts., v. Chas. F. Runge et al, applts. Decided Jan. 9, 1885. Upon the trial of an indictment charging Appeal from a conviction in the The defendants were indicted and convicted of contriving or assisting in contriving a lottery in violation of the provisions of § 325 of the Penal Code. The evidence for the prosecution consisted of the testimony of a witness who testified that he had purchased of defendants an article which he produced, and which was a box having numbered compartments containing certain articles and pieces of chewing-gum correspondingly numbered, and that, at the time of such purchase, |