Wm. S. Maddox (Everett V. Abbot, on the brief), for appellant. Charles Edwards Woodbridge, for respondents.

HIRSCHBERG, J. The transactions which are the subject of review on this appeal have engaged the attention of the court once before, and will be found fully detailed in the opinion then written by Mr. Justice Sewell. Perry v. Booth, 67 App. Div. 235, 73 N. Y. Supp. 216. The plaintiff, as trustee of Samuel A. Skead, a bankrupt, claims that certain transfers of lumber made by Skead in the months of November and December, 1898, to the defendants, were violative of the provisions of section 60 of the bankrupt act (Act July 1, 1898, c. 541; 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]). On the first trial the court found that Skead was insolvent on November 16, 1898, and had been for a long time prior thereto, and that, with the exception of the transfer of lumber made on that day, the defendants had reasonable cause to believe that the transfers complained of, and which were made subsequently, were made with the intention of creating a preference whereby they obtained a greater percentage of their antecedent debt than the other creditors in their class. The defendants appealed from the judgment then rendered against them, excepting so much thereof as adjudged that the transfer on November 16, 1898, was made in good faith, and that the defendants advanced money on the lumber then transferred in excess of its value. The consideration of the court was directed to all the transactions, however, and the entire judgment was reversed, and a new trial granted on the whole issue; but the conclusion reached was not only that the facts did not establish anything to indicate that the defendants had reasonable cause to believe that a preference was intended, but also that the necessary inference from the facts was that no preference was in fact created by any of the transactions.

We do not find that on the second trial any additional facts have been disclosed which distinguish the case in any material degree from the one first presented. The court has found that none of the transfers complained of created a preference, and that neither the defendants, nor their agent who acted for them in the course of the dealings involved in the inquiry, believed or had reasonable cause to believe that a preference was intended. These findings are not without sufficient support in the evidence, and a careful examination of the record and of the points urged on behalf of the appellant fails to furnish any valid reason why they should be overthrown.

In Benedict v. Deshel, 77 App. Div. 276, 79 N. Y. Supp. 205, the Appellate Division in the First Department recently held that a transfer is not voidable under section 60 of the bankrupt act, supra (Act July 1, 1898, c. 541; 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]), unless it appears that the bankrupt was insolvent at the time the transfer was made, that the transfer actually operated to create a preference, that the bankrupt intended to create a preference, and that the creditor had reasonable grounds to believe that a preference. was intended. The contention on the part of the learned counsel for the appellant is, in effect, that, assuming the existence of insolvency, the intention and the existence of reasonable ground for the

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belief may be inferred from the mere demand for security. They say in the brief:

"We submit that the creditor who demands security for a previously unsecured debt at once and by that act brings himself within the category of those who have a reasonable cause to believe that they are getting a preference."

A different view appears to have been taken by the federal courts. In Grant v. National Bank, 97 U. S. 80, 24 L. Ed. 971, in considering the quite similar terms of the former bankruptcy act, Mr. Justice Bradley said (page 81, 97 U. S., 24 L. Ed. 971):

"A man may have many grounds of suspicion that his debtor is in failing circumstances, and yet have no cause for a well-grounded belief of the fact. He may be unwilling to trust him further; he may feel anxious about his claim, and have a strong desire to secure it; and yet such belief as the act requires may be wanting. Obtaining additional security or receiving payment of a debt under such circumstances is not prohibited by the law. Hence the act, very wisely, as we think, instead of making a payment or a security void for a mere suspicion of the debtor's insolvency, requires, for that purpose, that his creditor should have some reasonable cause to believe him insolvent. He must have a knowledge of some fact or facts calculated to produce such a belief in the mind of an ordinarily intelligent man."

It has also been held under the present act that the giving of security for a past-due demand is neither sufficient to establish knowledge of insolvency, nor to put the creditor upon inquiry. The court said in In re Eggert, 43 C. C. A. 1, 8, 102 Fed. 735, 742:

"To hold that a creditor receiving payment of or security for a past-due debt is, by the mere fact of knowledge that the debt is past maturity, put upon inquiry of his debtor's inability to pay all his debts, and that under such circumstances he received payment or security at his peril, would be to put at hazard many business transactions, and make the act oppressive. The fact of such inability, coupled with other facts and circumstances brought home to the creditor, might be sufficient to put him on inquiry; but this is the only fact from which the deduction is sought that the creditor had reasonable cause to believe his debtor insolvent, and, standing alone, it is insufficient to raise an inference of law that the creditor is chargeable with knowledge of the facts which inquiry would have elicited." The judgment should be affirmed.

Judgment affirmed, with costs. All concur.

FORCE v. ST. PAUL FIRE & MARINE INS. CO.

(Supreme Court, Appellate Division, First Department. March 6, 1903.) 1. STIPULATION-VIOLATION OF TERMS.

A stipulation in an action by a common carrier on a fire policy to the effect that the goods damaged were received and held under a written receipt there being no words of limitation in the stipulation-is not violated by permitting plaintiff to prove that the receipt constituted a part only of the contract under which the goods were received. 2. FIRE INSURANCE-PROOFS OF Loss.

Where a fire policy indemnifying a carrier against loss of property in its possession, and for which it might be liable, did not require the carrier to explain its liability any further than to give its own interest and the interest of all others in the property, it was complied with by

annexing to the proofs of loss a statement of the names of owners of the goods lost, and the value of the goods, and the damages sustained by each, so far as the same could be stated.

Appeal from trial term, New York county.

Action by Ephraim C. Force against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

William D. Murray, for appellant.
Herbert Reeves, for respondent.

MCLAUGHLIN, J. This action was brought upon a policy of fire insurance. The issuance of the policy, the existence of the fire, and the loss sustained were not disputed. The defendant, however, insisted at the trial-and the same contention is made on the appealthat the plaintiff ought not to recover, because his assignors did not comply with that portion of the policy which required the insured, upon the request of the insurer, to set forth the terms upon which their claim was made, and explain "their liability for the destroyed property," and also that there was no proof that the assignors were in any way liable for the property destroyed, or that they had suffered any loss under the policy. Plaintiff's assignors were common carriers, and the policy was issued to indemnify them, as such, against loss of property in their possession, and for which they might be liable. It is contended the contract of shipment, as expressed in the receipt delivered in each instance to the shipper, released plaintiff's assignors from liability for any loss by fire, but the proof clearly established, and the trial court found, that the receipt only constituted a part of the contract; that the contract as actually made, obligated the plaintiff's assignors to pay for the property shipped in case of loss or destruction by fire. The object of the plaintiff's assignors in procuring the policy of insurance was, in case of the destruction of goods left with them for shipment, to indemnify them against loss to the amount specified in the policy, and for which they were liable under their contract with the shippers. The defendant, by its policy, agreed to make good this loss to the amount specified therein. The plaintiff's assignors sustained a loss, and have become liable to pay a sum largely in excess of defendant's liability.

We do not think the terms of the stipulation made upon the trial, to the effect that the goods which were damaged by the fire were received and held under a written receipt, were violated by permitting plaintiff to prove that, in connection with the delivery of the receipt, there was also delivered to the shipper the "rate card," so called, and certain printed statements to the effect that, in case the goods were destroyed by fire, plaintiff's assignors would make good the loss. There were no words of limitation in the stipulation, and therefore it was proper to prove that, while the goods were received and held under the receipt, the plaintiff's assignors, in case of destruction, were liable for the loss.

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Nor do we think there is any force in the appellant's contention that the plaintiff's assignors did not comply with the terms of the policy by giving an explanation as to their liability as provided therein. The policy did not require the assured to explain their liability any further than to give the interest of the insured and of all others in the property. This they did. Annexed to the proofs of loss which were served appeared the names of owners of the goods lost, and the value of the goods, and the damage sustained by each, so far as the same could be stated, and the damage there appeared to be largely in excess of defendant's liability under its policy; and it was stipulated upon the trial that the value of the goods destroyed was in excess of the amount for which defendant could, in any event, be made liable under its contract.

The judgment is right, and should be affirmed, with costs. All

concur.

JAMES V. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, Second Department. March 6, 1903.) 1. STREET CAR CONDUCTOR-ASSAULT ON PASSENGER-CREDIBILITY OF EVIDENCE. Where defendant's version of an assault made on plaintiff by a conductor on one of its cars, uncontradicted by any testimony except that of plaintiff, is to the effect that plaintiff fell in jumping off the car while in motion, and the conductor stopped the car, and went back to make inquiries, whereupon, after some conversation, plaintiff, who was suffering from a broken ankle, followed and struck him, and was dealt a blow in return, a verdict for defendant will not be disturbed on the ground that the story is too incredible to justify it.

2. SAME ASSAULT PROVOKED BY PASSENGER.

A street railway company is not liable for an assault on a passenger by a conductor, provoked by the passenger's violence.

8. SAME-EVIDENCE-ARREST OF CONDUCTOR-DISCHARGE.

Where, in an action against a street railway company for assault on a passenger by a conductor, plaintiff elicits evidence that the conductor was arrested for the assault, the admission of evidence by the defendant that he was discharged after arraignment was not error.

Appeal from Trial Term, Kings county.

Action by William H. James against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, and HOOKER, JJ.

William D. Gaillard, for appellant.

Addison C. Ormsbee, for respondent.

JENKS, J. The plaintiff complains of assault by a conductor of the defendant. The plaintiff's version is that while boarding a car he was abused in foul language by the conductor for brushing against him. Upon the plaintiff's retort that it was the conductor's own fault, and plaintiff's inquiry why the car started so quickly, the con

2. See Carriers, vol. 9, Cent. Dig. § 1121.

ductor repeatedly struck him, threw him off the car to the ground, stopped the car, alighted, walked back, and again struck him. The plaintiff was not corroborated save in some respects by Williams, a traveler on the street. The defendant's version is that the plaintiff ran after the car, boarded it, inquired whether it was a bridge car, and, when told it was an Astor Place car, stepped backwards off the car and fell to the ground. Thereupon the car was stopped, the conductor alighted, went to the plaintiff, took out a notebook, and, after some conversation, started to return to the car, with his back turned to the plaintiff, who struck the conductor, and was dealt a blow in return. The witnesses for the defendant were the motorman, a switchman, and a policeman. The conductor was not called, but evidence was given that he had left the employ of the defendant and could not be found. The policeman did not witness the occurrence, but testified that he came up and arrested the conductor upon complaint of the plaintiff for an assault which, the plaintiff said, had been made upon him in the street, without statement that any assault had been made upon him while he was upon the car, and that, after six adjournments in the police court without appearance on the part of this plaintiff, and after two months, the conductor was discharged.

We are asked to reverse this judgment upon the ground that the evidence on behalf of the defendant is "so wildly incredible that it should have been disregarded by the jury." The case of the plaintiff rests upon his own testimony, save his witness Williams. But Williams saw nothing that occurred before the conductor struck the plaintiff, and her testimony is entirely reconcilable with that of the defendant's witnesses that the plaintiff first struck the conductor, who thereupon retaliated. It is also contended that the plaintiff, while suffering from a broken ankle, could not have arisen and have walked a few steps after the conductor in order to assault him. The physician called by the plaintiff testified that the two bones forming the leg immediately above the ankle were fractured, but there was no evidence that a man thus injured could not, at the time of the injury, have arisen to his feet and have followed the conductor a short distance so as to strike him. I see no reason why the verdict of the jury should be disturbed on the ground that reasonable men, in the exercise of their judgment upon the evidence, could not have credited the version of the defendant. If a passenger fall from a car, and, when a conductor alights to make inquiry, meet the conductor with a blow, he cannot expect to hold the employer liable for an assault provoked by violence.

It is insisted that the plaintiff was prejudiced by the admission of evidence to show that the conductor was finally discharged after arraignment in the police court for assault. But the learned counsel for the plaintiff opened the door for the defendant when, upon his cross-examination of the motorman, he elicited that the conductor had been arrested, and therefore I think that the court could, in its discretion, receive testimony upon the same subject. Keeler v. Delavan, 4 Barb. 317; Abbott's Trial Brief, Civil Jury Trials (2d Ed.) 238, and authorities cited.

The judgment should be affirmed, with costs.

All concur.