answer that there were no incumbrances, but that the premises were leased. The court observed whether a particular piece of real estate is subject to the lien of judgments, and whether chattels are so connected with that real estate as to be part of the freehold, were questions which the assured did not profess to be able to answer, and which, if the company wanted answered, they should have sent a competent agent to investigate. They furthermore said that the assured "was not responsible for the blunders of the agent. If the agent returned that there were no incumbrances, when he had been informed there were judgments and a lease, he may have violated the 'conditions;' but no company has a right to select and send out agents to solicit patronage and business for its benefit, and then to saddle their blunders upon its customers."

And equally strong and decisive is the language of the court in N. E. Fire and Marine Insurance Co. vs. Schettler, 38 Ills., 166, where it was held that an agent, having power to receive premiums, would be presumed to have authority to give permission to the holder of a policy to remove the property insured to another locality, and having indorsed the consent in writing on the policy, for an enhanced premium, for the removal, the company was bound by it.

And so in Peoria Marine and Fire Insurance Co. rs. Hall, 12 Mich., 202, where by a fire policy it was provided that the keeping of gunpowder "without written permission in the policy” should render it void, it was held that the agent taking the insurance might waive it without writing, and whether permission to keep it was indorsed, or intended or neglected to be indorsed, or not.

And the power of these agents and the extent to which they represent and may bind the companies is further shown by those cases, in which it has been determined that the company cannot avail itself of any misstatement or omission in the application, constituting a warranty on the part of the assured, where such application is prepared by the agent with knowledge of the facts, or he is intrusted by the assured to make the application, and that this is so even though the by-laws of the company made known to the assured, provide that the person taking the survey and preparing the application shall be the agent of the applicant. Clark vs. Union Mutual Insurance Co., 40 N. H., 333; Marters vs. Madison County Mutual Insurance Co., 11 Barb., 624; Rowley rs. The Empire Insurance Co., 36 N. Y., 550; Protection Insurance Co., vs. Harmer, 3 Ohio St., 452; Beal rs. The Park Fire Insurance Co., 16 Wis., 241; Hough rs. City Fire Insurance Co., 29 Conn., 10; Kelley vs. Troy Fire Insurance Co., 3 Wis., 268, 269; Howard Fire Insurance Co., vs. Bruner, 23 Pa. St., 50; Ames es. N. Y. Union Insurance Co., 14 N. Y., 253; Plumbs. Cataraugus Insurance Co., 18 N. Y., 392; May vs. Buckeye Mutual Insurance Co., 25 Wis., 291. In such cases the neglect or mistakes of the agent are the neglect or mistakes of the company itself.

And the authority of a general agent is still further illustrated by those cases adjudging the receipt of premium upon a policy by

the agent after forfeiture or breach of condition and with knowledge thereof, is a waiver, (Wing vs. Harvey, 27 Eng. Law and Eq. R., 140; North Berwick Co., vs. New England Fire and Marine Insurance Co., 52 Maine, 336); or the doing of any other act by the agent recognizing the policy as still in force and valid, (Keeler vs. Niagara Fire Insurance Co., 16 Wis., 523); or that the agent may waive the printed condition that no policy shall be considered binding until the premium is paid and given a credit, (Borhen 8. Williamsburg Insurance Co., 35 N. Y., 131; Sheldon vs. The Atlantic Fire and Marine Insurance Co., 26 N. Y., 460; Gait vs. National Protection Insurance Co., 25 Barb., 189;) or that he may bind the company by a parol agreement to renew; although the policy and the certificates of renewal declare that they shall not be valid until countersigned by the agent, and that it makes no difference that at the time of such agreement to renew the period for which the policy was issued had expired, ( Post vs. Etna Insurance Co., 43 Barb., 357;) or that he may waive notice of additional insurance where the policy requires that the assured shall give notice thereof to the company and have the same indorsed on the policy, or otherwise acknowledged by the company in writing, (Warner vs. Peoria Marine and Fire Insurance Co., 14 Wis., 318;) or that he may bind the company by new clauses or conditions inserted by him before issuing the policy, (Gloucester Manufacturing Co. vs. Howard Fire Insurance Co., 5 Gray, 497.)

To the authorities thus referred to, many others differing in facts but not in principle, might be added, but it becomes tedious and unnecessary. Enough have been cited to show that it was competent for the agent in this case, to waive the condition that any change in title or possession shall render the policy void, and it only remains to be determined whether he did so waive it by receiving the premium and giving the renewal receipt knowing that such change had taken place.

The case of Peoria Marine and Fire Insurance Co. rs. Hall, 12 Mich., 214, broadly asserts the doctrine that mere knowledge by the agent issuing the policy or renewing it, and receiving the premium, of facts constituting a breach of any of its conditions, is a wavier by him and by the company of the condition so known to be broken. It is put upon the ground, that notice to the agent is notice to the principal, and that whatever the agent knows the company must be regarded as knowing, and that as it would be a gross fraud for the company, knowingly to receive the premium for issuing a policy on which they did not intend to be liable, and which they intended to treat as void in case of loss, so it is equally a fraud, and their fraud, for the agent to do so, for his knowledge was their knowledge, and his acts their acts for all the purposes of the transaction. And the same doctrine is fully sustained by the following cases: Campbell vs. The Merchants and Farmers' Marine and Fire Insurance Co., 37 N. H., 35; Marshall vs. Columbia Mutual Fire Insurance Co., 7 Foster, 157; Martin vs. Madison County Mutual

Insurance Co., 11 Barb., 624. In 37 N. Y., 48, it is said that the applicant, unused to business and ignorant of what is necessary to be done, trusts to the skill, knowledge and judgment of the agent, and puts full confidence in and relies upon him to see that the business is correctly done, and that, if he acts honestly and in good faith, the company ought to be charged with a knowledge of all the facts that are known to the agent, that it would be unjust to the insured, after he has made the application, paid the premium demanded and the expenses of the policy, to permit the company, upon the destruction of the property, to say that they will not make good the loss, because their agent, whom they have authorized to act for them, has failed in the performance of his duty. That the agent knows the requirements of the company and the insured does not, and if the application or policy be defective, upon a point well known to the agent, the company, and not the insured, should be the sufferers.

We are well satisfied of the soundness of these decisions and of the reasons which are given for them, and must therefore hold, that the condition in question was waived when the agent accepted the premium and issued the renewal receipt, knowing the change of title which had been made, and that as such change did not affect the insurable interest of the parties for whose benefit the policy was issued, and who paid the premium, the recovery in this action must be affirmed.

Judgment affirmed.

COURT OF APPEALS OF NEW YORK.

GEO. NORTHROP, ADM'R, App't,

Ag't.

THE RAILWAY ASSURANCE CO., Resp't.

GROVER, J.

It must be conceded that the injury received by the plaintiff's intestate does not come within the strict literal words of the contract of assurance. By that contract the respondent agreed to pay the legal representatives of the intestate, in the event of her death from personal injury, ensuing in three months from the happening thereof, when caused by any accident while traveling by public or private conveyances provided for the transportation of travelers, &e. The intestate was not actually traveling upon any public or private conveyance provided for the transportation of passengers, at the time of receiving the injury which caused her death. It ap

Decision Rendered Jan. 24th, 1871.

pears from the facts agreed upon by the parties, that the intestate prior to such time had undertaken to go a journey from Steuben to Madison county; that the mode adopted for making the journey was, by rail from Steuben to Watkins in Schuyler county, thence by steamer to Geneva, thence by rail to Madison; that the intestate, in the prosecution of such journey, had arrived at Geneva, on board the steamer, and, as usual, was passing on foot from the steamboat landing to the railway station, to go on board of the cars for the remainder of her journey, and, while so passing from the landing to the station, a distance of about seventy rods, she slipped and fell, thereby receiving an injury which caused her death about four days thereafter. It further appears that upon the arrival of the boat at Geneva, there were usually hacks at the landing seeking passengers for any part of the village, or the railroad station; but that a large majority, going to the railroad station, went there on foot.

The question for determination is, whether at the time of receiving the injury the plaintiff was, within the meaning of the policy, traveling by a public or private conveyance. The policy must be construed so as to carry into effect the intention of the parties, so far as such intention can be determined from the language used, construed in the light of well known extrinsic facts, which must be presumed to have been known to the contracting parties at the time of making the contract, and in reference to which it was entered into. One fact of this character, very important in the present case, is, that of the frequent changes required from one train of cars to another at intermediate stations upon the same journey.

Those passing from Buffalo or the Falls to New York, by the N. Y. Central, or from the former or Dunkirk to the same, by the Erie, cannot be unaware of this fact. Can it be said that a passenger is not traveling, within the meaning of this contract, by public conveyance while passing from one train, to go on board of another, in the actual prosecution of his journey; or, for further illustration, can this be said of a passenger from New York to Dunkirk, by the Erie, while going from the Ferry boat at Jersey City to get on board of the train at that place? I think that such passenger, within the meaning of this contract, and also within the fair construction of the language, is a traveler by public conveyance all the way from New York to Dunkirk, although he may walk as hort distance from the Ferry boat to the train at Jersey City, or from one train to another, where such changes are made at intermediate stations.

An injury received while so necessarily walking in the actual prosecution of the journey, is received while traveling by public conveyance, within the meaning of the policy, as such walking is the actual and necessary accompaniment of such travel.

There is no difference in principle between a passenger walking and the intestate in the present case. The presumption is, that

the railroad trains and the steamer run in connection, the same as the Ferry boat from New York to Jersey City with the Erie trains, and that by means of this connection the journey of the intestate was designed to be continuously prosecuted, and it surely can make no difference in principle that the space to be walked over, in going from one conveyance to another, is a few steps more or less. Nor does it affect the question that the intestate might have procured a hack to carry her, had she so have chosen. She pursued the same course that the great majority of passengers did. This she had the right to do under the contract. Theobald ag't Railway Passengers' Assurance Co., 26 Eng. Laws and Equity, 432, sustains this view. In that case the assurance was against railway accident, whilst traveling in any close carriage or any line of railway in Great Britain, &c. This was held to include an injury received from slipping on the step of the car, while standing at the station, in getting out. It follows that the judgment appealed from, must be reversed and a judgment of $5,000, with interest thereon from the time the loss became payable, rendered in favor of the appellant, against the respondent, together with costs in this and in the Supreme Court.

Church, Ch. J., Peckham & Rapallo, J. J., concur with Grover, J. Folger does not sit. Allen, J., not voting.

Judgment reversed.

COURT OF APPEALS OF NEW YORK.

LUCIUS BRADLEY, EX'R, &C., App't,

18.

THE MUTUAL BENEFIT LIFE INS. CO., Resp't.* \

GROVER, J., JA

The death of Mathew J. Cluff, whose life was insured by the policy in suit, having been proved, the question arose whether his death occurred under circumstances bringing the case within the proviso, making the policy void in case the death happened under the circumstances specified therein. The proviso declares the policy shall be null and void in case the said Mathew J. Cluff shall die, among other causes, by his own hand, or in consequence of a duel, or by reason of intemperance from the use of intoxicating liquors, or by the hands of justice, or in the known violation of any law of these States, or of the United States, or of the said Provinces, or of any other country which he may be permitted under this policy to visit or reside in. The counsel for the appellant has ably discussed

Decision Rendered April 25th, 1871.