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and 140 New York State Reporter 5. SAME.

In an action for malicious prosecution, malice may be inferred from want of probable cause.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Malicious Prose

cution, $ 67.) 6. APPEAL-ERROR—WAIVER.

An instruction may not be complained of on appeal, where it was not excepted to, no point was made of it on the motion for new trial, or on the argument, or in the brief.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $ 1516.]

Hooker, J., dissenting.

Appeal from City Court of Mt. Vernon.

Action for malicious prosecution by James H. Smith against New York Anti-Saloon League. From

From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MIL LER, JJ.

Elmer E. Cooley, for appellant.
Frank A. Bennett, for respondent.

GAYNOR, J. It cannot be gainsaid that the jury could have found the following facts from the evidence, direct and circumstantial. The defendant was incorporated “especially to form and foster public sentiment against the liquor traffic, and to direct that sentiment toward the enactment and enforcement of laws restraining and repressing the traffic in intoxicating liquors as a beverage,” as appears from its certificate of incorporation. It employed one Dodge as its chief detective to find out violations of the liquor law. It paid him a regular salary, and also his expenses, including the hiring of any men he needed in the work. He employed one Brewster and others to represent and assist him. The defendant put Dodge to work on the city of Mt. Vernon. It requested the police commissioner of that city to appoint him a special policeman, and he was appointed. The city did not pay him for his work as such; the defendant did; it was included in his salary and expense account. He and his men caused the arrest and prosecution of a number of persons for violating the liquor traffic law in the said city. All of his expenses therein were paid by the defendant by means of bills regularly rendered. At some of the prosecutions the superintendent and general manager of the defendant was present in court with him. The plaintiff, a hotel keeper, was arrested by Dodge on a warrant obtained on the complaint of Brewster on a charge of selling liquor on Sunday in a hotel that he was never in and had nothing to do with, and was finally discharged on a hearing, after being first locked up and then bailed.

On these facts the learned trial judge refused to grant a nonsuit, and left it to the jury to say whether the defendant was the procuring cause or instigator of the plaintiff's prosecution. This was not error. Even those engaged in laudable work must not violate the law. The law considers the substance of things, and could not say that the evidence did not show that the defendant was engaged in the

business of getting evidence of violations of the liquor traffic law, and of prosecuting the delinquents. For what did it have Dodge appointed a special policeman unless to make arrests? And why did it pay all his expenses in getting evidence and prosecuting unless he was employed for that purpose? The law had to take a comprehensive view of the case, and leave it to the jury. That it was not proved that any officer of the defendant said to Dodge or the others in so many words to arrest and prosecute was not enough to take the case from the jury. There were other facts and circumstances to be considered; the whole purpose and previous course of conduct of the defendant had to be considered.

Dodge was asked by counsel for plaintiff if he knew who made the application for his appointment as a special policeman. He was allowed to answer without objection, and answered that the defendant did. Counsel for the defendant then objected to the question, the answer not being what he expected, or to his liking, stating as his ground that "this corporation must act through its officers." The objection was overruled and he excepted. The question called for the preliminary answer “yes” or “no,” and such an answer would be competent. The objection to the question was therefore not well taken. The course was to move to strike the answer out, but this was not done. There are no other exceptions which need discussion. The learned trial judge was right in charging the jury that there was no probable cause. It was undisputed that the plaintiff did not sell liquor in the hotel alleged in the complaint against him, and there was no evidence or information that he did. It was for the jury to say whether the blunder of accusing him of doing so was not out of recklessness or gross negligence, and that would be enough to support a finding of malice. The learned trial judge was right in charging that malice could be found from the lack of probable cause. One passage in the charge seems to imply that malice could be found from two other previous prosecutions of the plaintiff; but it was not excepted to, nor was any point made of it on the argument nor is any made in the brief of counsel for appellant-nor was any made on the motion for a new trial.

The judgment and order should be affirmed.

Judgment and order of the City Court of Mt. Vernon affirmed, with costs. All concur, except HOOKER, J., who dissents.

(121 App. Div. 568.)

W. J. MORGAN & CO. V. HEITMANN et al. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) 1. SALES--ACTION FOR PRICE-QUESTIONS FOR JURY.

In an action for a balance of the price due on a contract for the printing of certain posters, evidence considered, and held sufficient to go to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, & 1064 ] 2. SAME-DEFENSES.

Where H. and another entered into a contract with plaintiff for certain printed matter for a traveling band, to be held subject to their orders

and 140 New York State Reporter and paid for, whether used or not, plaintiff's right to recover for a balance on the contract would not depend on the relation of H. to the band, the delivery of the printed matter, or questions concerning additional printing.

Appeal from Municipal Court, Borough of Brooklyn, Sixth District.

Action by W. J. Morgan & Co. against Fred E. Heitmann and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

Maxson & Jones, for appellant.
Henry Weismann, for respondent Heitmann.

RICH, J. The defendants entered into a written contract with the plaintiff, by the terms of which the latter agreed to print and have ready for delivery, on or before June 10, 1905, 500 21-sheet descriptive stands in two colors, and 1500 3-sheet posters in four colors, for the use of the German Marine Band, a traveling musical organization, of which the defendant Kindermann was band master or leader. The defendants agreed to pay for such work the sum of $645, payable $175 in advance and the balance in weekly payments as the printing was used, beginning on or about June 17th, but all to be paid for by January 1, 1906, whether used or not. It was further provided that the plaintiff should store, at the defendants' risk and expense, any balance of printing remaining on hand at the close of the season. One Isham was engaged by Kindermann as manager of the band, with the knowledge of the defendant Heitmann, who testified: "That was left between Kindermann and Isham to make the arrangements” for the printing. Isham directed plaintiff on different occasions to ship stated quantities of the advertising matter so contracted for to places named by him, where he received such shipments and used them in advertising the band. He subsequently ordered additional printing amounting to $275. It was not shown that the defendant Heitmann authorized or had knowledge of this purchase. Payments were made upon the contract from time to time, and this action was brought to recover a balance unpaid on the contract, including the value of the extra printing ordered by Isham; the plaintiff's theory being that Heitmann was the owner and financial backer of the band, and that Isham, in ordering the additional printing, acted as the agent of Heitmann, with authority. The secretary of the plaintiff company was examined as a witness upon a commission, and the answers made by him to the interrogatories showing performance of the contract by plaintiff were excluded by the trial court upon objection made that such interrogatories were incompetent as calling for the conclusion of the witness. At the close of the plaintiff's evidence the trial court held that a cause of action was not established by the evidence, and dismissed the complaint.

In this I think it was in error. The plaintiff's right to recover the unpaid balance upon the contract did not rest upon the relation Heit

mann sustained to the German Marine Band, the delivery of the printed matter, or whether Isham, in ordering the additional printing, was Heitmann's authorized agent. Upon establishing the contract, and showing the printing, the plaintiff was entitled to recover of the defendant Heitmann such unpaid balance. The contract and amount unpaid thereon were admitted. Delivery by the plaintiff was not required by the contract. The plaintiff agreed to do the printing, ready for delivery, and hold it subject to defendants' orders. It was to be paid for, whether used or not. It was shown by the evidence of one Lynch that the posters were printed. Isham testified that the quantity thereof stated and ordered by him in his letters and telegrams were actually received by him and used as manager of the band, and Lynch testified that the balance was stored in plaintiff's warehouse in Cleveland. This evidence established a prima facie case entitling the plaintiff to recover the balance past due and concededly unpaid upon the contract, and the dismissal of the complaint was error. As this conclusion requires a reversal of the judgment, we do not deem it expedient to consider the many other questions presented, which will presumably not arise upon a new trial.

The judgment of the Municipal Court must be reversed, and a new trial ordered; costs to abide the event. All concur.

(121 App. Div. 335.)

MOORE V. MUTUAL RESERVE FUND LIFE ASSÄN.

(Supreme Court, Appellate Division, Third Department. September 11, 1907.)

1. INSURANCE-CONTRACT_RESCISSION-GBOUNDS-FRAUD.

An assessment life insurance company concealed from an applicant for a policy a contingent liability of $523,000, and reported a different contingent liability of $570,000. The company gave itself credit to the extent of funds which would be collected on a subsequent assessment as an offset against the reported liability, while, in fact, the contingent asset was only applicable to the liability concealed. Held, a concealment of a material fact, authorizing the insured to rescind.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, g 534.] 2. SAME.

A policy accepted by insured through the fraud of the insurer is voidable ab initio at the election of insured.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $ 534.) 3. CONTRACTS-RESCISSION-CONDITIONS PRECEDENT-RESTORATION OF PROP

ERTY RECEIVED.

One rescinding a contract on the ground of fraud must restore to the other party the property received under it, and which he has under his control at the time he elects to rescind, and, if he cannot restore the property, he must restore the value thereof.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, 8 1186.] 4. INSURANCE-CONTRACT_NATURE.

Under a contract of life insurance, insured has not received at any specified time any definite value which he must return on rescinding the policy.

and 140 New York State Reporter 5. SAME-RESCISSION-RECOVERY OF PREMIUMS PAID.

One rescinding a policy on his life for fraud of the insurer may recover the premiums paid without deductions therefrom for benefits enjoyed, or for expenses to the insurer in carrying the insurance.

[Ed. Note.For cases in point, see Cent. Dig. vol. 28, Insurance, 88

457, 536.) 6. APPEAL-DISPOSITION OF CAUSE-MODIFICATION.

Where the trial court found the amount to which a party was entitled, but erroneously refused to render judgment for the proper amount, the court on appeal will direct judgment for the correct amount, instead of ordering a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 884507-4512.)

Kellogg, J., dissenting, and Chester, J., dissenting in part.

Cross-Appeal from Trial Term, Chemung County.

Action by John Moore against the Mutual Reserve Fund Life Association. From a judgment granting insufficient relief, both plaintiff and defendant appeal. Modified and affirmed..

In February, 1892, the plaintiff took out a policy of life insurance in the defendant company for the sum of $10,000. In 1906, claiming that policy was procured by fraudulent representations, he claimed the right to rescind the contract, offered back the policy, and demanded a return of the premiums paid, with interest. Upon the refusal of the company to return the premiums, he brought this action in equity to be allowed to rescind and to recover back the premiums paid. The trial judge has found that the contract was induced by the defendant by false representations of material fact upon which the plaintiff relied, and authorized its rescission. The court has further found that the mortuary cost of said policy from February 12, 1892, to January 2, 1906, was $1,526.72, that the total expenses during the same period were $728.42, and the interest on said sums to June 30, 1906, $983.15, making a total of $3,238.29. The court has further found that the premiums paid to said company amounted to $2,437.10, and that interest on said payments so made amounted on June 30, 1906, to the sum of $1,093.24, making a total of $3,530.34. The difference between this and the aforesaid sum of $3,238.29, to wit, the sum of $292.05, is the amount for which judgment has been directed.

The plaintiff has appealed, contending that he is entitled to the repayment of all premiums paid, with interest, without deduction for either the mortuary costs or the expenses on said policy. The defendant has appealed, contending that plaintiff is not entitled under the evidence to a rescission of the contract. Further facts appear in the opinion.

Argued before SMITH, P. J., and CHESTER, KELLOGG,
COCHRANE, and SEWELL, JJ.

John F. Murtaugh, for plaintiff.
Sewell T. Tyng (James J. Farren, of counsel), for defendant.

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SMITH, P. J. The finding of fraud by the trial judge is stoutly challenged by the defendant. That finding is based upon the concealment by the defendant from the plaintiff, both in a personal interview and in its public report, of the existence of a contingent liability of $523,000 for death losses upon the 1st day of January, 1892. This liability was for losses of which defendant had been notified, in which, however, the proofs of loss had not been filed. The contention of defendant as to this concealment is twofold: First, that this sum was included in an estimated contingent liability of $570,000. Upon an

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