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That is the situation here. Long before this | by-laws, rules, and regulations of the society, action was commenced Burnside had been and of the conditions printed hereon, to nine discharged from his debt; the bonds had dollars, weekly indemnity, not exceeding passed into the possession and ownership of defendant under parol agreement; their interest had been collected and appropriated by the owner in part before the death of Burnside; the bonds had been wholly paid; and the debtor's representatives had accepted the surplus. The whole contract, in every detail, and on both sides, had been 'fully executed, and all its purposes accomplished. To such a case the statute has no application. Without, therefore, passing upon the ques-ment, not exceeding $2,000, payable at the tions raised upon the construction of Mrs. Burnside's will, we are of opinion that the judgment was right and should be affirmed, with costs. All concur.

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1. Where an applicant for life insurance gives true answers to the questions put to him as the basis of insurance, but an authorized agent of the insurance company inserts in the application false answers, the company, and not the insured, is responsible for such falsity, and it is no defense to an action on the policy.2

2. A benefit society, which by its certificate of membership is bound to pay upon the death of a member such sum as may be realized by an assessment upon its members for a death claim, not exceeding a certain amount, is liable to an action at law for the damages sustained by a beneficiary by reason of its breach of contract in refusing to levy

such assessment.

Appeal from supreme court, general term, third department.

. This action was brought by the administrator of Peter O'Brien, deceased, to recover upon a certificate of membership issued to him upon his application by the defendant, as follows: "This is to certify that Peter O'Brien, of 15 Fayette St., city of Albany, state of New York, has paid the sum of twelve dollars, being the amount required on application for membership, and is therefore accepted as a member of the Home Benefit Life and Accident Society of New York, in division B, subject to the conditions and requirements of the amended by-laws, rules, and regulations of the society, and stipulations contained in the application for membership, and also to the conditions printed hereon. The membership entitles Peter O'Brien, after the presentation of satisfactory proof of the affliction with disabling injury by accident of said member, subject to and in accordance with the charter, amended

1 Affirming 4 N. Y. Supp. 275.

three months; or if said member shall have become permanently and totally disabled by accident for life, i. e., so as to preclude the possibility of ever following any vocation, or in the event of death, and upon satisfactory proofs thereof, the membership entitles Peter O'Brien, heirs or assigns, within ninety days after satisfactory proofs have been furnished to the officers of the society at the home office, to all of the amount realized from one assesshome office of the society in New York: provided, said member continues to observe and comply with the conditions, requirements, and stipulations above referred to, and to duly pay the semi-annual dues and assessments of said society during membership; otherwise the membership, with all moneys paid to the society, and all claims against the same in his behalf, shall be forfeited, and this certificate shall be null and void, without any notice to said member, or any action thereon being taken by this society. Given under the seal of the society, at New York, [L. s.] this twenty-five of April, 1884."

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The application was taken from O'Brien by an agent of the defendant, and it contains the answers to various questions, some of which are as follows: "(1) Are you now in good health, and free from any disorder, infirmity, or weakness? Answer. Yes. (2) Have you ever had any of the following diseases? If so, state particulars and separate answer to each question. [To all of which he answered, 'No.' Among the diseases enumerated was rheumatism.'] (3) What sickness, disease, or injury have you ever had? A. None. (4) When were you attended by a physician last, and for what complaint? A. None. (5) Name and residence of your usual medical attendant? A. None." The application also contained the following: "I further declare and agree that the statements and representations contained in the foregoing application and declaration, together with those made to the medical examiner, shall be the basis of the contract between me and the said society; that I hereby warrant the same. to be full, complete, and true, whether written by my own hand or not; and that if the same, or any of them, are in any respect untrue, the certificate which may be issued hereon shall be null and void and of no effect, and all moneys which may have been paid on account of such insurance shall be forfeited to said society, and the said contract shall not become binding upon the society unless at the time of its delivery the applicant is in sound health and mind." O'Brien died on the 10th day of January, 1886, from the disease of rheumatism, which disease he had had for some years prior to his application, and he had been attended therefor by physicians, and the answers given

2 That an insurance company is estopped to deny liability on an insurance policy on the ground that the application therefor contained false representations, when such application was prepared by the company's agent, the insured not knowing of the false representations, see Pudritzky v. Knights of Honor, (Mich.) 43 N. W. Rep. 373, and note; .Insurance Co. v. Barnes, (Kan.) 21 Pac. Rep. 165, and to the questions above set out were untrue. note; Brink v. Association, 7 N. Y. Supp. --: The plaintiff made proofs of the death of

O'Brien, and forwarded them to the defend-|ance, and an authorized agent of the insurant, and the defendant refused to make an ance company inserts in the application false assessment for the payment of his claim; al-answers, the company, and not the insured, leging that it had been defrauded by the un- is responsible for the falsity, and that their true answers given by O'Brien as to his health falsity is no defense to an action upon the and the medical attendance upon him. There- policy. after this action was commenced, and the There is no doubt that the complaint in plaintiff alleged in his complaint the mem- this action sets forth an action at law to rebership of Peter O'Brien; his death; that the cover a money demand. The defendant conamount to which he was entitled under and tends that, if the plaintiff is entitled to mainin pursuance of the certificate was the sum tain any action, it is only an action in equity of $2,000; that the defendant had neglected to compel it to make and collect an assessand refused to pay the same, or any part ment for the payment of plaintiff's claim, thereof; and he demanded judgment for $2,- and that therefore the complaint should have 000, with interest. The defendant in its an- been dismissed. By its certificate, and the swer alleged, as a defense, among other conditions annexed thereto, and under its bythings, the untrue answers of O'Brien con- laws, the defendant agreed to do something, tained in his application, and that they were and that was to make an assessment upon false and fraudulent. The action was its members for a death claim, and to pay brought to trial, and a verdict was rendered the proceeds, not exceeding the stipulated in favor of the plaintiff. The judgment amount. It is undoubtedly true that a suit upon that verdict having been affirmed at in equity could have been maintained upon the general term, the defendant appealed to this court.

Charles Blandy, for appellant. E. Countryman, for respondent.

sociation, 12 N. Y. St. Rep. 347; Fitzgerald v. Association, 5 N. Y. Supp. 837; Leuders' Ex'r v. Insurance Co., 12 Fed. Rep. 465; Earnshaw v. Society, 68 Md. 465, 12 Atl. Rep. 884; Jackson v. Association, 73 Wis. 507, 41 N. W. Rep. 708; Burland v. Association, 47 Mich. 424, 11 N. W. Rep. 269; Taylor v. Relief Union, 94 Mo. 35, 6 S. W. Rep. 71; Protective Union v. Whitt, 36 Kan. 760, 14 Pac. Rep. 275; Association v. Lemke, 40 Kan. 142, 19 Pac. Rep. 337; Association v. Riddle, 91 Ind. 84.

the facts of this case to compel the defendant to make and collect an assessment, and to pay to the plaintiff the proceeds thereof. Such a suit, however, would have required complicated and tedious proceedings, and the EARL, J., (after stating the facts as plaintiff was not obliged to resort to it. above.) The application for membership tak- When the defendant refused to make an asen by the defendant's agent from O'Brien sessment it violated its contract, and became was signed by his mark. He did not read liable to the plaintiff for the damages caused and was not able to read it, and it was not by such violation; and such damages, like all read to him, and there was evidence upon damages for breaches of contract, can be rethe trial that he gave correct answers to all covered by an action at law. So it has been the questions contained in the application, held in many analogous cases. Peck v. Asbut that his answers were incorrectly writ-sociation, 5 N. Y. Supp. 215; Freeman v. ten therein by the agent, without his knowl-Society, 42 Hun, 252; Cumming v. Mayor of edge or consent. There was also evidence Brooklyn, 11 Paige, 596, 602: Fulmer v. Asgiven on the part of the defendant that the answers of O'Brien to the questions put to him were correctly written, just as he gave them, and the trial judge submitted to the jury this evidence on both sides. He charged them that if O'Brien did not truly answer the questions the plaintiff could not recover; but that if he answered them truly, and the agent of the defendant did not write them in the application as they were given, the defendant was responsible for the mistake or fraud of its agent, and that in that event the untrue answers would furnish no defense to the action. The jury having found a verdict for the plaintiff, we must assume that, upon sufficient evidence, they found that O'Brien gave true and honest answers to the questions put to him, and that the untrue answers contained in the application were therein inserted by the agent of the defendant by fraud or mistake. That upon such facts the defendant has failed to sustain its defense of breach of warranty and fraud is abundantly established by the authorities in this state. Grattan v. Insurance Co., 80 N. Y. 281, 92 N. Y. 274; Miller v. Insurance Co., 107 N. Y. 292, 14 N. E. Rep. 271;. Bennett v. Insurance Co., 106 N. Y. 243, 12 N. E. Rep. 609. These authorities hold that where the insured gives true answers to the questions put to him as the basis of insur

Our attention is called by the learned counsel for the defendant to certain cases which uphold his contention. But those cited above, we think, stand upon the best reason. While upon the trial it was claimed on behalf of the defendant that this was an action at law, and that such an action could not be maintained against it, no claim was there made that the facts stated in the complaint were not sufficient for the maintenance of an action at law, if such an action was maintainable. The complaint is open to some criticism, but its alleged defects worked no harm to the defendant, and its objections to it came too late here. The plaintiff was therefore entitled to recover something; and what was the measure of his damages? Just what he lost by the defendant's breach of its contract. He was entitled to have an

assessment made and collected, and the pro- | ment of the action, were substituted as deceeds thereof paid to him. What was the fendants in place of the sheriff, under seccontract worth to him? and what would the tion 1421 of the Code of Civil Procedure. assessment have produced for him? It was The defendants, in their answer, justified the incumbent upon the plaintiff to give evidence taking of the property by the sheriff under which would enable the jury to answer these an attachment in an action commenced by questions. As the assessment was not made, Isaac Goldschmidt and others against J. M. it was impossible for the plaintiff to show ac- Hirschhorn & Co., the assignors, to recover a curately or precisely what such an assessment debt owing by the defendants to the plainwould have produced. He was bound to give tiffs therein at the time of the assignment. such evidence as the nature of the case per- The answer set forth the proceedings taken mitted, bearing upon the matter of damages, to procure the attachment, showing a compliand legitimately tending to prove their ance with the statutory requisitions prelimamount. We have carefully read the evi- inary to the issuing of that process, and furdence, and we think there was sufficient to ther averred that the assignment of Hirschjustify the verdict of the jury. These views horn & Co. was made with intent to hinder, dispose of the most material exceptions bear- delay, and defraud their creditors. At an ing upon the general merits of the case taken early stage of the trial, and before the deat the trial. There were, however, many fendants had entered upon their defense, the exceptions taken on behalf of the defendant, court ruled, in substance, that the defendants both to the reception and exclusion of evi- would not be permitted to raise any question dence having relation to the question of dam-as to the validity of the assignment, and at ages, which are also complained of. We have carefully scrutinized these exceptions, and we do not believe that they point out any material error to the prejudice of the defendant. Our conclusion, therefore, is that the judgment should be affirmed, with costs. All

concur.

(117 N. Y. 306)

HESS v. HESS et al.1

ATTACHMENT.

1. Goods and chattels assigned by a debtor to defraud creditors being attachable in the hands of his assignee at the suit of a defrauded creditor, the sheriff or his indemnitors may defend the taking of such goods by showing that it was under a valid attachment, and that the assignment was fraudulent as to the attaching creditor.

2. Such taking may be justified even if the attachment be vacated, provided it was valid when the taking occurred.

the conclusion of the case instructed the jury that the only question which they could consider was the question of damages. We think the ruling was erroneous. Goods and chattels fraudulently assigned by a debtor to hinder, delay, and defraud creditors are attachable in the hands of his voluntary assignee at the suit of a creditor defrauded by the assignment. Rinchey v. Stryker, 28 N. Y. 45; Frost v. Mott, 34 N. Y. 253. The rule which

(Court of Appeals of New York. Nov. 26, 1889.) prevents the levy of an execution under simASSIGNMENT FOR BENEFIT OF CREDITORS-FRAUD-ilar circumstances upon equitable assets or choses in action proceeds upon peculiar grounds, not applicable to chattels, of which there can be a manual tradition. Thurber v. Blanck, 50 N. Y. 80; Anthony v. Wood, 96 N. Y. 180. If, therefore, the present action had been continued against the sheriff, there can be no doubt that he could have defended the original taking by showing that he took the goods under a valid attachment against Hirschhorn & Co., and that the assignment to the plaintiff was fraudulent as to the plaintiff in the attachment suit. The defendants, as his indemnitors, stand in his shoes. need not consider whether they would be protected to the same extent as the sheriff, if the process, though regular on its face, was affected by some latent vice, as, for example, if issued without jurisdiction.

3. In an action by an assignee for the conversion of property covered by the assignment, a ruling that defendants may not so justify the taking, and attack the validity of the assignment, cannot be supported on the ground that the debt and the papers on which the attachment issued were not proved, and therefore the attachment may have been void for want of jurisdiction, where the ruling was made before defendants had any opportunity to prove the attachment proceedings.

Appeal from superior court of New York city, general term.

Otto Horwitz, for appellants. W. J. Townsend, for respondent.

We

It is quite evident from an inspection of the record that the ruling of the court, excluding inquiry as to the validity of the assignment, was based on an admission of the ANDREWS, J. The action is brought by defendants in their answer that, subsequent the plaintiff, as assignee of the firm of J. M. to the seizure of the goods by the sheriff, the Hirschhorn & Co., under a general assignment attachment was vacated. This admission was for the benefit of creditors, dated May 16, made in connection with a separate matter 1887, to recover for the alleged conversion by set up in the answer, relating to the conduct the sheriff of the city and county of New of the sheriff after the vacation of the attachYork of certain goods and merchandise, part ment, for which the defendants alleged they of the assigned property taken by him from were not responsible; the acts not being, as the possession of the plaintiff after the assign- claimed, within the terms of the indemnity. ment. The present defendants are indemni- It is clear that the defendants were entitled tors of the sheriff, who, after the commence- to litigate the validity of the assignment, unless the vacation of the attachment precluded them from justifying under it. If the attach

1Reversing 5 N. Y. Supp. 959, mem.

Davies & Rapallo, (Edward S. Rapallo and Brainard Tolles, of counsel,) for appellant. Roger Foster, for respondent.

ment was void, it would afford no protection | trial term entered on a verdict for $2,500, deto the party suing it out, whether vacated or fendant appeals. not, and it is probable that indemnitors who come in in aid of the party would stand in the same position; but if valid, the process would protect both the officer and the party for what was done under it before it was vacated, the liability of the property to seizure being shown. The case of Day v. Bach, 87 N. Y. 56, is a decisive authority that trespass will not lie for the seizure of goods under a valid attachment subsequently vacated for error. The process is a protection to the officer or party for whatever is done under it while in force. The vacation of the process for error does not convert into a trespass that which was legal until it was set aside. The subsequent conduct of the officer or party in dealing with the attached property may create a cause of action; but if the original taking was justified, this would afford no ground for a recovery against the indemnitors.

The ruling of the court is sought to be supported on the ground that the existence of the debt and the papers on which the attachment issued were not proved, and that therefore the attachment may have been void for want of jurisdiction to issue it. But this answer is insufficient. The ruling of the court was made in limine, before the defendants had any opportunity to prove the attachment proceedings. It was assumed by all parties that there was a valid attachment, and the ruling proceeded, as is clearly to be inferred, upon the ground that nevertheless the vacation of the process deprived the defendants of their justification.

We think the court erred, and that the judgment should be reversed, and, a new trial granted. All concur.

PER CURIAM. This action was brought to recover damages for injuries occasioned to the easements of light, air, and access pertaining to the property of the plaintiff's testatrix for six years prior to 1887, the time of the commencement of the suit, by the erection, operation, and maintenance of an elevated railway by the defendant in Division street, in the city of New York. The property consisted of a lot and building on that street, 12 feet wide, and which for a period of 20 years had been occupied as a millinery store.

The only material question raised by the appellant on this appeal is whether the opinions of witnesses were admissible as to "what would have been the fair rental value of this property in the years 1879, 1880, and 1887, if the railroad had not been built." Similar questions were put to two witnesses on the part of the plaintiff, and were allowed to be answered, by the court. It may be said, with regard to the evidence called for by the questions, that it did not purport to cover the whole period for which damage was claimed, but included but a small part of one year, and had therefore but a slight bearing on the issue in controversy. It is further to be observed that the evidence was not specifically objected to upon the ground that the opinions of witnesses were inadmissible on the subject, but generally, as being incompetent, irrelevant, hypothetical, and the witness not competent to give an opinion. The objection seemed to imply that opinions were competent on the subject. The trial seems to have been conducted on both sides, and more particularly on that of the defendant, upon the theory that opinions were admissible as to rental value of the premises, and causes which affected it. The evidence on the part of the defendant was almost exclusively of this character; and it seems ungracious in it now to 2. At the trial there was abundant evidence insist upon a rule which it systematically viothat the actual rental value of similar property in lated during the course of the trial. Assumthe same street had diminished from $1,600 or $1,-ing, however, that the objection was suffi800 a year to $600 or $900, and that after the erection of the road business in the street commenced to fall off, and left the street, on account of the dirt and smoke from defendant's train. Held, that this evidence, of itself, was sufficient to establish a depreciation of $900 a year in the rental value of the property, and the admission in evidence of the opinion of a witness as to what the rental value of the property would have been if the road had not been built, though inadmissible, was no ground for reversal; the jury having rendered a verdict for only $2,500, the road having been operated six years.

(117 N. Y. 219)

MCGEAN v. MANHATTAN RY. Co. (Court of Appeals of New York. Nov. 26, 1889.) EMINENT DOMAIN-DAMAGES OPINION EVIDENCE 1. In an action for damages for injury to prop erty by the erection and maintenance of an elevated railroad, the opinions of witnesses as to what the fair rental value of the property would be if the railroad had not been built are inadmissible.

EARL, J., dissenting.

Appeal from superior court of New York city, general term.

Action by James H. McGean, as executor of Delia Powers, deceased, against the Manhattan Railway Company. From a judgment of the general term, affirming a judgment of the

ciently taken, we are of the opinion that the evidence called for was inadmissible on the question in controversy. The opinions of witnesses as to the causes which occasioned the decrease of rental value, as well as to the amount of damages done thereby, were clearly improper. As was said by Judge ALLEN in Teerpenning v. Insurance Co., 43 N. Y. 279, "as a rule, witnesses must state facts, and. not draw conclusions or give opinions. * * *. It is not permitted to give in evidence the opinion of witnesses having knowledge of the subject-matter as to the damages resulting from a particular transaction." In Marcly v.. Shults, 29 N. Y. 346, quite a similar case, Judge DENIO Said: "The plaintiff's counsel offered to ask the plaintiff, while under ex

amination as a witness, what the value of the | where a similar business was prosecuted, and use of the house was per annum before the largely increased the trade and rental value raising of the dam. I think this was objec- of property in such streets. Such evidence tionable, as calling for the opinion of the wit- clearly indicated, in the absence of some other ness. * * * We may suppose the ques- explanation, that the injury to the plaintiff's tion was to have been followed up by inquir- property was occasioned by the defendant's ing the value of the rent after raising the road, and that the annual injury in the dedam, and then taking the difference for the preciation of rental value of the premises amount of the damages. It will not be pre-amounted to at least $900 a year, aggregattended that a witness could be allowed to ing damage to the sum of over $5,000 for state his opinion of the amount of damages. the six years covered by the complaint. The He could describe the character of the over-evidence of the plaintiff's witnesses was pracflowing, and its effect; and then it would be tically undisputed on these propositions. for the jury to estimate the damages. If the Aside from the evidence of one witness, who house had been kept for renting, and some- testified that the rent of certain premises octhing in the nature of a market price of the cupied by him in Division street for confecuse could have been proved, it might have tionery and restaurant purposes had increased been competent." from 1880 to the time of the trial, the entire But, conceding the inadmissibility of the evidence on the part of the defendant conevidence given, it does not follow that the sisted of the opinions of witnesses that the judgment should for that reason be reversed. rental value of such property had not been The court must be satisfied, upon an exam-impaired by the construction and mainteination of the whole case, that the appellant nance of the defendant's road. They adwas prejudiced by the admission of the evi-mitted that such value had decreased since dence, to warrant a reversal. It was said by WRIGHT, J., in a case where error in the admission of evidence was urged as cause for reversal without reference to its materiality: "This is hardly the rule now in a court of law. * * * Even these courts undertake to judge for themselves of the materiality of evidence found to have been improperly admitted or rejected; and, when satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence, they have refused a new trial." Forrest v. Forrest, 25 N. Y. 510. In People v. Fernandez, 35 N. Y. 59, Judge PORTER lays down the rule that "the reception of illegal evidence is presumptively injurious to the party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt, that the result would have been the same if the objectionable proof had been rejected, the error furnishes no ground for reversal." Upon a careful examination of the case, we are satisfied that the defendant was not harmed by the evidence in question. Abundant and competent evidence was given on the trial, by witnesses who had knowledge of the facts, that the actual rental value of similar property in the same street had steadily diminished, after the building of the defendant's road, until that which had before rented for from $1,600 to $1,800 per annum had decreased to a rental of from $600 to $900 a year. Evidence was also given that after the defendant commenced making excavations, in 1878, and while its road was being constructed and operated, business on the street commenced to fall off, and custom-case to the consideration of the jury, no exers ceased to come there as before, and that ception was taken by the defendant to such dirt, ashes, smoke, and cinders from the de- submission in respect to the incompetency of fendant's road and trains filled the air, opinions upon the question of rental value, darkened the light, and embarrassed the trade and the causes which led to its decrease. to such an extent that business left the The reason for the omission of the defendant street, and flowed into adjoining streets, to take this point is obvious, since it would

the building of the road, in the aggregate, for the six years in question, from $1,000 to $2,600, but gave it as their opinions that such decrease was occasioned by other causes than the operation of the defendant's road. The grounds upon which the various opinions were predicated were fully explained to the jury by the witnesses, and presumably occasioned a diminution of their verdict from the sum warranted by the evidence to that actually found. The damage sought to be established by the objectionable questions was less than that indicated by the plaintiff's evidence generally; and the verdict of the jury, therefore, fails to show that it was influenced by the objectionable evidence to the prejudice of the defendant. The uncontradicted evidence showed a general decrease in rental value of the property in Division street after the building and operation of defendant's road, and a sufficient cause in such building and operation to account for such decrease. If the evidence objected to was stricken out, it would not materially impair the strength of the plaintiff's case, or lead to any different result than that reached by the jury. Upon the whole evidence, it is apparent that the jury awarded damages upon the theory of a decrease in rental value, occasioned by the maintenance and operation of the defendant's road, to the extent of about one-half of the actual diminution of value during the contested period, and held the other half to be attributable to other causes. Such a verdict was, we think, warranted by the evidence, and the defendant has no just reason to complain of the result. While the court submitted all of the evidence in the

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