the company. The company passed upon the applications, and accepted or rejected them in its discretion. formed. If the facts show that the company the risk, or made so by the terms of the contract contained in an application prepared by the agent in the name of the insured, but without his authority, and upon which the In determining the question whether the company acted in issuing the policy, (Ben- policy issued covered the mill-house or the ninghoff v. Insurance Co., 93 N. Y. 496; tenant-house, the papers on which the comSprague v. Insurance Co., 69 N. Y. 128; pany acted were material evidence. Vilas v. Insurance Co., 72 N. Y. 590; Ames certaining to which subject the policy apv. Insurance Co., 14 N. Y. 253;) (2) to the plied, it is immaterial whether the application class of cases where the agent, having been was made by the authority of the insured or authorized by the insured to fill out the ap- not, or whether it was genuine or forged. plication in his name, misstated, by mistake | There must be a meeting of minds between the or inadvertence, the information given by the parties to a contract before a contract is, . the insured, and thereby misled the company, (Rowley v. Insurance Co., 36 N. Y. 550; Baker v. Insurance Co., 64 N.Y. 648; Grattan v. Insurance Co., 92 N. Y. 274; Bennett v. Insurance Co., 106 N. Y. 243, 12 N. E. Rep. 609;) and (3) to the cases which hold that a company cannot insist upon a condition declaring the contract to be void if a certain fact or situation exists, not represented to the company, and indorsed on the policy, provided the company or its authorized agent knew the fact or situation relied upon to defeat the contract at the time the contract was made, (Van Schoick v. Insurance Co., 68 N. Y. 434; Richmond v. Insurance Co., 79 N. Y. 230; Short v. Insurance Co., 90 N. Y. 16.) In none of these cases was there any question as to the subject of the insurance. In all of them it was conceded that the policy covered the building or property destroyed by the fire. The matters alleged in these cases as constituting a defense related to some incident of the contract, or to the performance of some condition collateral to the express object of the contract. In cases falling within the two classes of cases first mentioned the fault was committed by the agent of the defendant, and it is held that, as between the company and the insured, the company should bear the loss. In cases of the third class it is held that it could not have been the intention that the policy should be defeated by reason of an omission to communicate facts known to the company when the contract was made, or the failure to have the written recognition of the company of their existence. The courts in these cases apply the doctrine of waiver or estoppel to prevent fraud or injustice. But the principle which relieves the party insured from responsibility for unauthorized representations made by the agent of the insurer, in respect to some incident of the risk, and permits them to be disregarded in an action to enforce the contract, has no application where the point in issue is as to the subject of the insurance, and the contract is explicit upon that point. If the contract of insurance relates to one definite and distinct subject, it cannot be turned into a contract for the insurance of another and different sub-policy. He knew that there was a policy on the ject, on proof that the agent of the company, by mistake, described the wrong property in his application. The agent's authority here was to "make surveys, and take applications for insurance." He had no authority to enter into contracts of insurance in behalf of The second defense, of prior insurance, is also, we think, a barrier to a recovery. It is a condition of the policy that, "if the insured shall have, or shall hereafter make, any other insurance on the property hereby insured, not indorsed, known, or consented to by this company or its authorized agent, in writing, this policy shall be void." This defense proceeds on the assumption that the policy was a contract insuring the mill-house. It is conceded that Landers had an insurance on the mill-house in the Glens Falls Insurance. Company, for $800, existing when the policy now in question was issued, and which ran to May 1, 1874, and no indorsement of the prior insurance was made on the policy in question, nor is there any written consent to its existence by the Watertown Insurance Company, or its agent. This, prima facie, was a breach of the condition, and rendered the policy of the latter company void. Landers v. Insurance Co., 86 N. Y. 414. The answer made is that Cannon knew of the prior mill-house, and also on the tenant-house. But the strongest position for the plaintiff which the evidence justifies upon this point is that Cannon believed, and so represented to Landers, that the policy on the mill-house was the one expiring July 1, 1873, whereas it was the policy on the tenant-house which expired at | from assailing that judgment as erroneous. that date. The most that can be said is that When the motion was made it seemed likely the agent made a mistake as to the facts. to be successful upon the ground that the But this was not equivalent to notice of an note upon which he sued was barred by the outstanding insurance so as to charge the statute of limitations, and the plaintiff therecompany. The plaintiff, to avoid the effect upon asked leave to amend his complaint by of the condition, was bound to show that, as substituting, as his cause of action, his claim matter of fact, the agent knew of the out- for lumber sold and delivered, which he destanding insurance. It was not sufficient to clared to have been the original consideration relieve the plaintiff that the agent was put of the note. Thereupon an order was entered, upon inquiry, or might, by the exercise of which appears in the judgment roll, that on diligence, have ascertained the truth. The of payment certain costs the plaintiff have insured, who had procured the policies in the leave to withdraw a juror, and move at special Glens Falls Company, could not rely upon the term for leave to amend his complaint. The assurance of the agent, himself making no order further provided "that, in case the plaininvestigation, and cast the burden of the tiff shall fail to make such motion within ten agent's mistake upon the Watertown Insur-days after service upon his attorney of a copy ance Company. It was not the agent's duty of this order, and notice of entry thereof, or to ascertain the fact as to prior insurance, in case such motion shall be duly made and and his assumption that no such insurance denied, the complaint be dismissed with costs, existed did not bind his principal. For the as moved by the defendant at the trial." A errors stated, the judgment should be re-juror was accordingly withdrawn, and the versed, and a new trial granted. All concur. (115 N. Y. 258) DE CAMP v. MCINTIRE. (Court of Appeals of New York. Oct. 8, 1889.) RIGHT OF APPEAL EVIDENCE. 1. In an action on a note a motion for nonsuit was made on the ground that the note was barred. Plaintiff asked leave to amend the complaint, and substitute as his cause of action a claim for lumber sold, which he declared to be the true consideration of the note. An order was entered permitting him to withdraw a juror, and move at special term for amendment. The order provided that, if the motion should be denied, the complaint should be dismissed, "as moved by defendant at the trial." The motion was denied, and judgment ordered dismissing the complaint. Held, that plaintiff was not debarred from appealing from the judgment, as the order was intended to place the parties, if the motion should be denied, in their original position, as if the trial had ended in that manner. plaintiff made his motion, which was denied, and judgment ordered dismissing his complaint. From that judgment he appealed, and the general term reversed it for error in the rejection of evidence; and the defendant appealed to this court, insisting that the plaintiff could not review the judgment because he accepted its rendition as one of the conditions of the withdrawal of a juror, and the permission granted him to move for an amendment of his complaint. We do not think that is a fair construction of the order. The condition was not that he should consent to a nonsuit, or be bound by it without right of review, but that it should be granted, "as moved by the defendant at the trial." The purpose seems to have been to give the plaintiff opportunity for his motion, but, if he failed, both parties were to be put in their 2. The complaint alleged that a certain sum had original position as if no juror had been withbeen paid on the note, and the answer denied that drawn, and the nonsuit be granted as if the any sum had been paid on the note, and added that trial had ended in that manner and at that the sum was accepted in full satisfaction of the claim against defendant, and pleaded the statute of point. The defendant was thus at liberty to limitations. Plaintiff introduced in evidence a re-enter his judgment, and the plaintiff to quesceipt for the said sum, showing that it was paid in tion it on appeal if he should see fit. discharge of a claim, but it did not show that the claim was the identical demand represented by the note. Plaintiff, as a witness, was asked what was the claim referred to in the instrument, and replied that it was the balance due on the note. Held, that the testimony was of fact, and not of opinion, and was admissible to show that the payment was a payment on the note, as such payment would save the statute of limitations. Appeal from supreme court, general term, fifth department. Action on a note by William De Camp against John E. McIntire. Judgment for defendant, which was reversed by the general term, and defendant appeals. W. B. Hornblower, for appellant. James Fox, for respondent. FINCH, J. We do not think that the circumstances of the trial put the plaintiff in the attitude of consenting to the judgment of nonsuit rendered against him, or debar him 'Affirming 44 Hun, 623, mem. This brings us to the alleged errors in the rejection of competent and material evidence. To appreciate them properly it is necessary to understand the issues presented for trial. The complaint counted upon a note made by defendants to plaintiff's order, dated November 10, 1877, and alleged that no part thereof had been paid except the sum of $278.11, on or about February 12, 1880. The answer denied "that any sum was ever paid by the defendants, or either of them, as part payment of said note, or on account of it." The denial is not of the alleged payment of $278.11, but of its payment on the note. And the meaning of this denial is made quite plain by the added defense that the plaintiff, for a good and valuable consideration, agreed on or about February 12, 1880, to accept the said sum of $278.11 in full satisfaction and discharge of the claim against defendant, "which was the sole and only consideration of said note." The pleadings were verified, and they disclose that no issue was raised | cluded evidence would have completed the over the fact of a payment of $278.11 at the chain of proof in that respect. The order of date alleged, but over the question whether the general term should be affirmed, with that conceded payment was made on the costs, and judgment absolute be entered note, as the plaintiff alleged and the defend- against the defendant upon his stipulation. ant denied, or whether it was made as an ac- All concur. (115 N. Y. 401) ELRED v. EAMES.1 POWERS OF REFEREE. Appeal from supreme court, general term, fourth department. cord and satisfaction, as the defendant alleged; and the fact one way or the other was very material in view of the defendant's plea of the statute of limitations. In that state (Court of Appeals of New York. Oct. 8, 1889.) of the pleadings the plaintiff put in evidence a receipt or agreement signed by the defend- In the procecding authorized Rev. St. N. ant, dated February 12, 1880, the day on Y. (7th Ed.) pp. 2299, 2300, $$ 36, 37, providing for which the payment was made. That ac- reference of claims disallowed by an executor, the latter of which sections gives the referee the knowledged the receipt from plaintiff of a same powers as he would have in an action in discharge of his mechanic's lien on the de- which the court might direct a reference, the refpot of the Second-Avenue Railroad Company, eree cannot allow the claimant to withdraw, aftthe same to be returned to him within a rea-terial that, after such statute was enacted, Laws er reference, a part of his claim; and it is immasonable time, or, "in lieu thereof, the sum of 1857, c. 723, § 11, was enacted, and gave to referees $278.11 to be received from the railroad com- in actions the power, which they did not before pany in settlement and discharge of said lien possess, to allow pleadings to be amended, as the from record as against the owner, and to be the claim and items presented are not pleadings proceeding in question is a special proceeding, and credited on account of moneys paid on the within such provision. claim as against the contractors, John E. and James McIntire and William Warren; the balance to be settled hereafter," etc. This receipt showed that the $278.11 concededly paid plaintiff was so paid not only in discharge of the lien, but on account of a claim which plaintiff had against the defendants and Warren, a balance of which remained unpaid; but what it did not show was that the claim was the identical demand represented by the note, and so the payment was upon the note. The answer admitted that identity, but did so as part of a plea of accord and satisfaction, which the plaintiff feared to admit, by reading that part of the answer in evidence, and so he sought to establish the identity of the claim on which the money was paid with the note. While on the stand as a witness the plaintiff was asked: "What is the claim referred to as against the contractors John E. and James McIntire?" He answered: "The balance due from the L. J. Dorwin, for appellant. Watson M. RUGER, C. J. This was a claim presented by the plaintiff to the defendant, as executrix of the estate of Frederick W. Eames, deceased, and, being disallowed and rejected by her, was referred, under the provisions of the statute. Rev. St. (7th Ed.) §§ 36, 37, pp. 2299, 2300. Upon the hearing the plaintiff moved for leave to withdraw from the consideration of the referee several large items of his claim, on the credit as well as the debit side of his account, which motion was granted by the referee under objection and exception by the defendant. It is now contended by the defendant that this was error, and we are of the opinion that her claim was well founded. The reference in such cases is a special pronote." The defendant moved to strike out ceeding, (Roe v. Boyle, 81 N. Y. 305,) foundthe answer, which motion was granted, and ed solely upon the statute, and the referee the plaintiff excepted. He was asked again: possesses only those powers which are ex"What was meant by the claim referred to in pressly conferred thereby, or are fairly inferExhibit B?"-which question was excluded able from its provisions. It is provided by under exception. These rulings were errone- section 37 of the statute that upon such refous. A fact, and not an opinion, was sought, erence "the same proceedings shall be had and that fact one which bore directly upon the in all respects, the referee shall have the principal issue in the case. The importance same powers, be entitled to the same compenof the receipt and agreement lay not in its sation, and subject to the same control, as if sufficiency to establish a written promise to the reference had been male in an action in pay the debt, so as to save it from the bar of which such court might, by law, direct a refthe statute. It may be, as the appellant con-erence." It is urged by the respondent that, tends, that it was insufficient for that. But inasmuch as referees have power to authorit tended to prove that the payment made ize amendments to pleadings in an action, was in truth a payment upon the debt which the section in question gives referees in the note represented, if the identity of that this proceeding the right to allow alterations claim and the consideration of the note was and changes to be made in the subject reestablished; and the effect of such payment ferred. The same course of reasoning would would save the statute. It must be assumed seem to make referees in these proceedings that the nonsuit was granted on the ground equal in all respects to referees in actions; that the note was barred; but, if plaintiff but it has been held in many cases that they showed a payment upon it in 1880, the nonsuit would have been wrong, and the ex 1Reversing 48 Hun, 253. We do not possess the same powers. Thus they | Co., 4 Civ. Proc. R. 398, where a referee aldo not have power over the subject of costs. lowed the plaintiff to recover for items of an Their reports are required to be confirmed by account not covered by the claim presented the court before going into judgment, (Smith to the executor. We there held that the v. Velie, 60 N. Y. 106;) and they cannot referee had no power under the statute "lo render an affirmative judgment for the estate, vary or enlarge the matter referred." (Mowry v. Peet, 88 N. Y. 453.) Neither think that authority is controlling here, and can they require a bill of particulars, (Towns-renders a reversal of the judgments of the end v. Insurance Co., 4 Civ. Proc. R. 398;) general and special terms necessary. and it would seem to follow therefrom that Other questions are presented on the appelthey could not change the items of an account lant's points for a reversal of the judgment, presented and referred. The exercise of such but, as they involve questions of fact which a power by the referee would enable a claim- must be passed on upon the retrial of the ant to obtain a reference of his claims against case, it would be obviously improper to disan estate without the consent of the defend-cuss them here. The judgment of the speant or the approval of the surrogate, which cial and general terms should be reversed, is made by the statute the condition of such and a new trial had before another referee, a proceeding. It is the claim which is re- with costs to abide the event. All concur. jected by the executor that may be referred, and none other. If the power of amendment is allowed, the whole subject of the controversy may be changed during the trial, to the manifest detriment of the defendant, and (115 N. Y. 579) O'NEILL v. NEW YORK, O. & W. RY. Co.1 (Court of Appeals of New York. Oct. 8, 1889.) RAILROAD COMPANIES-FIRES. Appeal from supreme court, general term, third department. Action by Amanda O'Neill against the New York, Ontario & Western Railway Comant's alleged negligence in setting fire to the pany, for damages resulting from defendwoods on plaintiff's land. Verdict and judgment for plaintiff, which was affirmed on appeal. Defendant appeals. in violation of statutory authority to order a 1. In an action against a railroad company for reference. The trial might thus be had upon negligently setting fire to woods on plaintiff's land claims that were not presented to, or reject-lying near by, it appeared that defendant allowed ed by, the executor, and whose reference was combustible material to accumulate along its never approved by the surrogate. These track, and that the fire originated therein shortly after a train passed. As the train went by the conditions are made by the statute essential place where the fire began, witnesses stated that to the power to refer, and cannot be dis- the smoke and sparks poured from the engine pensed with or subverted. thickly; the sparks being larger than usual. It The distinctions between statutory refer-provided with a spark arrester, or that it was out did not appear that the engine was not properly ences and those made in actions which are of order or mismanaged. Held sufficient evidence inherent in the nature of the proceeding are of negligence to warrant a verdict for plaintiff. not obliterated by the general language of of another before reaching plaintiff's woods does 2. The fact that the fire passed through lands the statute giving referees therein the same not render defendant's negligence the less the powers possessed by referees in actions. proximate cause of the injury. Neither does the language of the statute conferring power of amendment in actions upon referees purport to give the same power to referees in these proceedings. It says that the pleadings in an action may be amended by the referee. At the time of the adoption of sections 36 and 37 of the Revised Statutes, referees in actions had no power to authorize amendments to pleadings in actions. That power was first conferred by an amendment to section 272 of the Code in 1857. Section 11, c. 723, Laws 1857. Referees were then empowered to permit parties to amend the DANFORTH, J. The questions in this case pleadings in an action, and were also given are brought before us by the defendant's apother powers not before possessed by them. peal from a judgment of the general term of But there are no pleadings in these special the third judicial department, affirming a proceedings. The statement of the account judgment in favor of the plaintiff upon the on one side, and the rejection thereof by the verdict of the jury, and affirming an order executor on the other, is all that constitutes made by the trial court denying the defendanything in the nature of pleadings between ant's motion for a new trial. No question is the parties. Under this condition, the made upon the pleadings. The complaint, plaintiff may, on the trial, give any pertinent among other things, stated the incorporation proof to sustain his charges, and the defend- of the defendant, and that its road ran ant may introduce any evidence which goes through the town of Fallsburgh. So much to defeat the claim. While the statements the defendant, by its answer, admitted. The and proceedings stand in lieu of pleadings, they still are not pleadings, and are not governed in all respects by the same rules which apply to the construction and office of pleadings in an action. The question involved in this discussion arose in this court in Townsend v. Insurance O'Neill, for respondent. complaint also stated that the plaintiff at the time in question was the owner of certain woodlands lying near the railroad; that these were set on fire through the negligence of the defendant in the use and construction of its 1Affirming 45 Hun, 458. 66 locomotive, and by means of sparks and coals | plaintiff's land." The witness watched the thrown from it; and that the defendant was progress of the fire a few minutes, and then otherwise negligent in placing or permitting went for a pail." If this evidence is true, to accumulate upon its premises, "brush, old the plaintiff's case was good until contradictties, cut grass, and other dry and combustible ed. If contradicted, the question was for the materials," easily ignited, and through which jury, and not the judge. It was not wrong fire communicated to the plaintiff's woods to for him to say whether the inference of negher injury. These allegations were denied, ligence could be drawn from it. It was for and the issues so formed raised the questions the jury to say whether it should be drawn. between the parties. No doubt the eyes of some witnesses are liveThe plaintiff went into evidence, and when lier than those of others, and the sense of she rested the defendant's counsel claimed it sight may be quickened or diminished by the to be insufficient for want of showing that interest or bias of him who possesses it. But the engine from which the fire was said to no court can define or limit the degree of credhave originated "was out of repair, or im-ibility due a witness, for that, as well as the properly constructed, or that the spark-ar-weight of evidence, is for the jury. In Field rester attached thereto was not as good, safe, v. Railroad Co., 32 N. Y. 346, it was held and effective as any contrivance for that pur- that "the fact that the sparks or coal were pose in known use," and also claimed that scattered at all upon the defendant's road-way negligence "cannot be found from combusti- in such quantities as to endanger property bles along the track." The motion was de- on abutting premises, raised an inference of nied, and the defendant called and examined some weight that the engines were improperwitnesses, whose testimony, with that of the ly constructed or managed." There was, plaintiff, was submitted to the jury as bear-moreover, in the plaintiff's case, abundant eving upon three questions: First. Whether the engine was out of order or repair as to its apparatus for arresting sparks. Second. Whether the engine was supplied with the most approved method of arresting sparks in known use. Assuming that these questions were answered in favor of the defendant, then, third, was the company negligent in placing combustible materials so near the track that they would be likely to take fire from sparks of the engine necessarily emitted, and thence, as a natural and probable result, firing the plaintiff's woods? idence of conduct on the defendant's part in so storing its refuse material, and retaining upon its premises brush and other refuse matter, as to make it quite right and proper for the jury to declare it negligent. If, as the defendant claims, the escape of fire from an engine is inevitable, and a necessary consequence of its useful employment, the defendant was at least bound to move combustible material from its path, or at least prevent such accumulation of rubbish as would, in consequence of fire falling upon it, be the cause of danger to another's property. Webb v. Railroad Co., 49 N. Y. 420. The fire on the track was its fire as much as if confined in the engine, and it owed a like duty to see that it did no harm. On this appeal it is not denied that the plaintiff suffered loss of property by fire. The defendant's claim is that there was not sufficient evidence for the jury to consider upon the question whether the defendant n-gli- It is also said by the appellant that "the gently caused the fire. The burning occurred damages are too remote." The proposition in the day-time. Immediately after the pas- is put upon the ground that the plaintiff's sage of the "express freight" through a tun- lauds did not lie next to the railroad, but nel, about 12 o'clock, or a little after, smoke were separated from it by the lands of anwas seen rising from the places on the land other. That circumstance is in the case, but of the company, close to the track, and along no allusion was made to it upon the trial as its side. The fire at once began to run, and a ground of defense, and it is conceded by the spread rapidly "onto the land of one Carley," learned counsel for the appellant that the and from there to the lands of the plaintiff. point now presented was not raised in the By the side of the defendant's land were cut trial court. It therefore cannot be listened brush, and leaves, and old ties piled up. Be- to. Salisbury v. Howe, 87 N. Y. 128. The fore the train came along there was no smoke case was tried upon its merits, and it was asor other appearance of fire. Sparks were sumed by the defendant's counsel, in stating seen coming from the engine; one witness grounds for a nonsuit, that the plaintiff would says, "Probably, and as I judge, as large as be entitled to recover if the fire was caused a pea." Another says, "I saw the train when by the imperfection of its locomotive, or if it came out of the tunnel," and "she set fire negligence could be predicated from the acright at the approach of the tunnel." The cumulation of "combustibles along the track." engine was throwing large volumes of smoke In either of these events the liability of the and sparks. They seemed unusually large, defendant was conceded, and there was no "as large as walnuts." "She set fire three or four times to this old brush, old bark, and stuff that falls off the train, and brush they cut down and left there. They rolled the brush up near the mouth of the tunnel on the east side, and the fire caught on there, and went north-east. That was towards the suggestion that the damage sustained by the plaintiff was not the natural and probable consequence of defendant's act or omission. But the appellant urges that the objection, if made at the trial, could not have been obviated, and therefore claims that it may be raised at any time. The fact that land of a |