sumption is not violent that there has been negligence MARRIAGE – SEPARATE MAINTENANCE. HUNT V. HAYES. When a wife, living separate and apart from her husband, has sufficient income from an ante-nuptial agreement or settlement for her support, her husband is not bound to pay for necessaries furnished her. THE laxed so far as to allow that liability to be qualified to some extent by contract between the carrier and the employer. Whether the carrier could by contract exempt itself from liability for losses arising from its own negligence was for some time a question not well settled. The great weight of authority in this country now is in favor of excluding negligence as an element of contract between the carrier and the employer, and of holding the former to a rigid responsibility for any degree of negligence, without the power by contract so as to divest itself of it. Railroad Co. v. Lockwood, 17 Wall. 357; Bartlett v. Railway Co., 94 Jud. 281; Express Co. v. Harris, 120 id. 73; Railway Co. v. Faylor, 126 id. 126; School Dist., etc., v. Boston, elc., R. Co., 102 Mass. 552; Railway Co. v. Chapman, 133 III. 96; American Exp. Co. v. Second Nat. Bank, 69 l'enn. St. 394; Willis v. Railway Co., 62 Me. 488; Jacobus v. Railway Co., 20 Minn. 125; Rose v. Railroad Co., 39 Iowa, 246; Railway Co. v. Maddox, 75 Tex. 300; Railway Co. v. Reynolds, 17 Kans. 251; Express Co. v. Graham, 26 Ohio St. 595; Berry v. Cooper, 28 Ga. 543; 2 Am. & Eng. Enc. Law, 322. The rule which we have thus referred to applies also to contracts limiting the liability of the carrier to a certain sum in case of loss, unless that sum is agreed upon as the value of the goods or baggage, and the charges or rates of freight are ascertained and fixed upon the basis of such agreed valuation. In such a case the weight of authority seems to be that the shipper would be estopped from afterward alleging that the value was more, even if there should be loss by the negligence of the carrier, for there would be no justice in allowing the shipper to be paid a larger value than that deliberately agreed upon for an article which he had induced the carrier to take at a rate lower than would otherwise have been charged, Hart v. Railroad Co., 112 U.S. 331; Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 id. 322; Express Co. v. Harris, supra; Railroad Co. v. Abels, 60 Miss. 1017; Railroad Co. v. Little, 71 Ala. 611; Moulton v. Railway Co., 31 Minn. 85; Railroad Co. v. Simpson, 30 Kans. 645; Express Co. v. Backman, 28 Ohio St. 144; Railway Co. v. Wynn, 88 Tenn. 320; Grogan v. Express Co., 114 Penn. St. 523; Express Co. v. Sands, 55 id. 140; Hutch. Carr., § 250. In New York the rule is different from that which prevails in most of the States. In that State, while the decisions have shown some individual differences among the judges, the law is clearly settled that a carrier may, by means of a plain and unmistakable special contract, exempt itself from liability for losses arising from any degree of negligence on its part in any case. The question seems to be as yet an open one in California, Delaware, Florida, Nevada, Oregon and Rhode Island. The contract in the case at bar does not declare the value of the baggage to be $100. It does not amount to a clear and unequivocal agreement that $100 shall be treated as the value of the baggage. Nor is it in any way shown that there was any special consideration, ingarded as delegated authority, and not as an inherent the way of reduced rates or charges, inducing the appellee to make the contract. If upon these points there be any doubt the appellee would be given the benefit of the doubt. The contract should be construed most strongly against the carrier. Limitations and restrictions upon the liability of common carriers are taken most strongly against them. The delivery of the trunk to the appellant, with the lost articles in it, all in good condition for transportation, and their value is undisputed. For the failure to deliver, upon the demand of the appellee, the lost articles at the point of destination, no excuse or explanation whatever was offered by the appellants. If a carrier, in a case like this, where the exemption provided for by contract is not for loss or damage from a particular cause, but as to amount of loss only, will not account nor attempt to account for a refusal or failure to deliver the property which it undertook to safely carry, the pre THE plaintiff was the father of the defendant's wife, and brought this suit to recover for necessaries furnished in the support of his daughter and her infant son, who were residing in the plaintiff's family. It was conceded by the defendant that the items sued for were necessaries, and that the wife was living apart from her husband under such circumstances as would justify her in pledging his credit for necessaries unless she was prevented from doing so by the fact that she had other means of support; and the defendant introduced evidence of an ante-nuptial agreement by which it was provided that he would pay to his wife the sum of $2,000 annually. The plaintiff, upon his part, conceded that the $2,000 had been regularly paid, but contended that defendant was liable for the support of his wife and infant sou notwithstanding. Gilbert A. Davis and Dillingham & Huse, for plaintiff. William Batchelder and William E. Johnson, for defendant. ROWELL, J. The authority of a wife to pledge the credit of her husband for necessaries is usually re authority; and it is considered that if she binds him at all in this behalf she binds him only as his agent. But this authority or agency may be a presumption of law as well as an inference of fact, and it must be a presumption of law when an agency in fact, express or implied, is either not proved, or is expressly disproved, as is often the case. Thus, in Harrison v. Grady, 13 L. T. (N. S.) 369, it is said that when a wife is turned out of her home without the means of obtaining necessaries, it is an irrebuttable presumption of law that she has her husband's authority to pledge his credit for necessaries; but that, when husband and wife are cohabiting, it is a presumption of fact that she is his agent for ordering articles supplied to their establishment that are suitable to the station that he allows her to assume, but that if they are not suitable to that sta tion, a presumption arises that she was not his agent to pledge his credit for them. So in Read v. Legard, 6 Exch. 636, where a husband was made liable for necessaries supplied to his wife during the period of his lunacy, Baron Alderson says: "If a wife is compelled by her husband's misconduct to procure necessaries for herself, as for instance, if he drives her away from his house, or brings improper persons into it, so that no respectable woman could live there, then according to the adjudged cases, he gives her authority to pledge his credit for her necessary maintenance elsewhere, which means that the law gives her authority by force of the relation of husband and wife." Baron Martin said that this is the true foundation of the liability, namely, that by contracting the relation of marriage, a husband takes upon himself the duty of supplying his wife with necessaries, and that if he does not perform that duty, either through his own fault or in consequence of a misfortune of the kind in that case, the wife has, by reason of the relation, an authority to procure them herself, and that the husband is responsible for what is so supplied. This doctrine is pretty satisfactory, but we should be quite as well satisfied to say that in such cases the law treats the husband just as though he had in fact given the wife authority, the same as in the case of an implied promise, where the law does not really go upon the ground of a promise, but treats the party just as though he had promised, and this is what is meant by an implied promise. That a wife, wrongfully turned away by her husband without the means of supplying herself with necessaries, may pledge his credit for them, is undeniable. But the question that we have to consider is whether, when thus turned away, she can pledge her husband's credit for necessaries when she has an adequate income of her own with which she can supply herself. The earliest case we have found on this question is War v. Huntley, 1 Salk. 118, which is this: An ordinary working man married a woman of like condition, and after cohabiting for some time, the husband left her, and during his absence the wife worked, and this action being brought for her diet, it was held by Lord Holt that the money she earned should go to keep her. The principle of this case is recognized in Johnston v. Sumner, 3 Hurl. & N. 261, though the case itself is not referred to. Pollock, C. B., then says: "If the husband turned his wife away, it is not unreasonable to say she has an authority of necessity, for by law she has no property and may not be able to earn her living; but we should hesitate to say, if a laboring man turned his wife away, she being capable of earning, and earning as much as he did, or if a man turned his wife away, she having a settlement double his income in amount, that in such cases the wife could bind the husband.' But a precarious income is not enough. Thus in Thompson v. Hervey, 4 Burr. 2177, the wife, who had been sent adrift, had a pension of £300 a year from the crown, granted to her in her own name, but determinable at the pleasure of the crown; and it was held that she could pledge the husband's credit notwithstanding, for that the pension, being only a voluntary grace, and bound only during the pleasure of the crown, was not what any creditor of hers could be supposed to give her credit upon. Liddlow v. Wilmot, 2 Starkie, 86, is much relied upon by the defendant, and strongly denied to be in point by the plaintiff. But we think it in point. The original cause of the separation, which took place thirty years before suit brought, did not appear, but a reason for its continuance did appear, for the defendant had long cohabited with another woman, by whom he had a daughter twenty-five years old, consequently the wife was necessarily away; and this is what is said of the case in Johnston v. Sumner. So it was not a case of separation by mutual consent, as clearly appears by what was said in summing up. The wife had adequate means of her own, but it does not appear whence she derived them, much less that she derived them from her husband by way of an allowance on separation, as is claimed in argument to be the fair inference from the facts stated. Nor is there any thing to show that the wife had forfeited her conjugal rights. Lord Ellenborough, in summing up, said: "The first question for consideration is whether the defendant turned his wife out of doors, or by the indecency of his conduct, precluded her from living with him, for then he was bound by law to afford her means of support adequate to her situation; but, if either from her husband, or from other sources, she was possessed of such means, the law gives no remedy against the husband, but the idea of an implied credit is repelled." And this is undoubtedly the law of England. Blackburn, J., in Bazeley v. Forder, 9 Best & S. 599, puts it thus: "A wife, when separated from her husband in consequence of misconduct on his part rendering it improper for her to remain with him, is in the same position as if he turned her out of doors, and is by law clothed with power to pledge his credit for her reasonable expenses according to her husband's decree, unless she is in some other way supplied with the means of providing them." In this connection it is worthy of remark, if the husband's liability, when he turns his wife away, is put upon the ground of agency arising from necessity, as many of the cases do put it Eastman v. Burchell, 3 Q. B. Div. 432-it logically follows that when there is no necessity there can be no agency, for cessante ratione legio cessat ipsa lex; and there can be no necessity when the wife has means of her own with which she can supply herself. Clifford v. Laton, 3 Carr. & P. 15, is understood by some to be to the same effect as Liddlow v. Wilmot. Mr. Smith so regards it in his 2 Leading Cases, 438. It is so digested in 4 Jacob's Fisher's Digest, pl. 6041. And in Johnston v. Sumner, Pollock, C. B., cites it in connection with Liddlow v. Wilmot, and to the same proposition. And it is quite susceptible of the construction they give it, although it must be admitted that as the case is reported in Carrington & Payne that point does not very clearly appear. In Lilson v. Brown, 26 Ind. 489, it is held that if a wife, living apart from her husband for just cause, has means of her own with which she can support herself, however derived, no necessity exists for others to supply her, and that the husband cannot be made liable except on an express promise to pay. Mr. Schouler, in his work on Husband and Wife (section 117), seems to recognize this case as law, for he cites it in support of the proposition that when a husband, by his misconduct, compels his wife to life apart from him, he is liable for her necessaries, notwithstanding his allowance, as long as that allowance is insufficient and she has no proper means of support. And we do not think that he elsewhere in his work controverts this doctrine. True, he says that ante-nuptial settlements cannot vary the terms of the conjugal relations, nor add to nor take from the personal rights and duties of the busband and wife. But he is speaking generally, and without reference to the question we are considering; and what he says is true as a general proposition, both in England and in this country. Indeed we find little or no authority in this country opposed to the view here taken of this question. But in cases like the one before us it is for the jury to say whether the wife has adequate means or not for her support. As to the defendant's liability for the support of his child it does not appear why the child is with the mother, whether with defendant's consent and ap proval or against his will and wishes. It may be with her in a way to charge the defendant for its support ; but whether it is or not we cannot determine on this record. As to the law of the subject, see Rawlyns v. Vandyke, 3 Esp. 250; Bazeley v. Forder, 9 Best & S. 599; Judgment reversed and cause remanded. NEW YORK COURT OF APPEALS AB- ACCOUNTING-CASHIER OF BANK-BOOK ENTRIESEVIDENCE.-In an action by a stockholder of a bank to compel an accounting of money received by defendant's intestate, as cashier and liquidator of the bank, it appeared that the cashier was a merchant, and kept the bank in a part of his store. Held, that the fact that a note, given to intestate for goods purchased at the store, payable at the bank, and indorsed by intestate, was entered on the bills receivable book, was insufficient to show that intestate discounted it, or that he drew money thereon, where it did not appear that he was credited with the amount thereof on the books of the bank, as was customary, and he was not therefore liable as indorser. Second Division, March 8, 1892, Kelley v. Foster. Opinion by Haight, J. 8 N. Y. Supp. 901, affirmed. ment did not vest the legal title of the machinery in Deeley, nor did it create a legal lien upon the prop. erty described therein. Gardner v. McEwen, 19 N. Y. 123; Jones v. Richardson, 10 Metc. (Mass.) 481; Pettis v. Kellogg, 7 Cush. 456; Otis v. Sill, 8 Barb. 102; Couderman v. Smith, 41 id. 404; Thomas Chat. Mortg., § 137; Jones Chat. Mortg., § 138. We find no case which holds that the legal title to property not in existence, actually or potentially, can be transferred either by way of sale or mortgage. That an equitable lien may be created on property to be brought into existence is well settled, and an action to foreclose the lien may be maintained. It was said in Coats v. Donnell, 94 N. Y. 177: "A contract for a lien on property not in esse may be effectual in equity to give a lien, as between the parties, when the property comes into existence, and where there are no intervening rights of creditors or third persons, seems to be established by several decisions in this court." Kribbs v. Alfrod, 120 N. Y. 519, which is relied on by the respondents, is not in conflict but in harmony with these views. McCaffrey v. Woodin, 65 N. Y. 459; Wisner v. Occumpaugh. 71 id. 113: Coats v. Donnell, 94 id. 168, 177; Hale v. Bauk, 49 id. 626, 632. Second Division, March 8, 1892. Deeley v. Dwight. Opinion by Follett, C. J. 11 N. Y. Supp. 60, reversed. * CORPORATIONS-DISSOLUTION-INTEREST OF STOCKHOLDERS.-Dissolution and distribution of the assets among the stockholders of a business exchange will be "beneficial to the interests of the stockholders," within section 2429, Code of Civil Procedure, providing that where a majority of the trustees favor dissolution, and it appears that a dissolution will be beneficial to the interests of the stockholders, * * the court must make a final order dissolving the corporation," where the interests of the stockholders are so discordant as to prevent effective management, and a large majority of both trustees and members wish to wind up its affairs. In re Niagara Ins. Co., 1 Paige, 258: In re Woven Tape Skirt Co., 8 Hun, 508; Webster v. Turner, 12 id. 264; Denike v. Lime, etc., Co., 80 N. Y. 599, 605; 2 Beach Priv. Corp., $781; 1 Mor. Priv. Corp., § 413; 2 Wat. Corp., § 420: 2 Spel. Corp., § 1012. Under such circumstances it is better for all that a dissolution should be ordered, so that a majority may reincorporate upon some more practical basis, if they so desire, and the majority may no longer be forced to keep up a feeble and useless organization, in which they take no interest, and from which they derive no benefit. Second Division, March 15, 1892. In re Importers & Grocers' Exchange of New York. Opinion by Opinion by Landon. J. 9 Vann, J. 8 N. Y. Supp. 319, affirmed. APPEAL-EXCEPTIONS.-(1) Where the trial court by its decision found the value of the easements and property taken by an elevated railway, but no opinion was written and no rule of damages announced during the trial, and the General Term asserts that the evidence was sufficient to sustain a much higher award than was actually made, there is nothing to show that the trial court adopted an erroneous measure of damages. (2) Where objection was made to a question put to plaintiff on the ground that his answer might include as an element of fee damage some element of the damage subsequently done by defendants as tort-feasors, but the court admitted the evidence, reserving the question of its application, and defendant excepted, but failed to move to strike out such evidence, and did not present the objection in his requests for findings, such exception is insufficient to raise the objection that the court adopted an erroneous measure of damages. Second Division, March 8, 1892. Mitchell v. Metropolitan El. Ry. Co. N. Y. Supp. 130, affirmed. CERTIORARI-ACTS OF COUNTY BOARD-REVIEW.The action of the county board of supervisors in borrowing money, and issuing county bonds therefor, for the purpose of improving highways in a town (Laws 1869, chap. 855, § 1), is legislative and not judicial, and This has been so may not be reviewed on certiorari. often held that the rule has become elementary. People v. Mayor, 2 Hill, 9; In re Mount Morris Square, id. 14; People v. Board of Health, 33 Barb. 344; People v. Supervisors of Livingston Co., 43 id. 232; affirmed, 34 N. Y. 516; People v. Walter, 68 id. 403; People v. Joues, 112 id. 597. March 15, 1892. People, ex rel. Trustees of Village of Jamaica, v. Board of Supervisors of Queens County. Opinion by Earl, C. J. 16 N. Y. Supp. 705, reversed. CONVERSION -TITLE-CHATTEL MORTGAGE-PROPERTY NOT IN EXISTENCE.-Where a mortgage is executed on machinery before it is manufactured, an action by the mortgagee for its subsequent conversion cannot be maintained, since such mortgage creates only an equitable lien on the machinery. The instru CRIMINAL LAW-CROSS-EXAMINATION OF DEFENDANT-CONSTITUTIONAL LAW.-A defendant in a criminal case, who testifies as a witness in his own behalf, may be cross-examined relative to facts not brought out on his examination in chief, or affecting his credibility, but pertinent to the issue. In some of the States the rule has been adopted, that by becoming a witness for himself, he thereby subjects himself to the same rules of examination as any other witness, and may be asked any questions on cross-examination on matters pertinent to the issue, or calculated to test his accuracy, veracity or credibility, subject to the power of the court, in its discretion, to limit and regulate such examination as in cases of other witnesses. In other States it has been held that the right of cross-examination under these statutes is confined to matters referred to in the examination in chief, and that the witness cannot be required to testify as to other facts material to the issue, or as to events in his life, for the purpose of affecting his credibility or character. The differences in the decisions in different States are attributable in part to a difference in the language of the statutes. Some of the statutes in terms limit the cross- CRIMINAL LAW-REBATES ON LIFE INSURANCE--CONSTITUTIONAL LAW-VARIANCE.—(1) Chapter 401, Laws of 1890, which makes it a criminal offense for an agent of a life insurance company to pay a rebate as an inducement to insure in his company, is not unconstitutional as an abridgment of the natural rights and personal liberty of such agent in the conduct of his business. Life insurance companies perform very important functions in modern society. They operate in all parts of the State, and a very large number of people are interested in them. They are resorted to for the purpose of making provisions for families and dependents after the death of the insured, and for that purpose many persons invest in them the accumulations of their labor and their thrift. The nature of insurance contracts It may is such that each person effecting insurance cannot thoroughly protect himself. He is not competent to investigate the condition and solvency of the company in which he insures, and his contracts may run through many years, and mature only, as a rule, at his death. Under such circumstances, it is competent for the Legislature, in the interest of the people, and to promote the general welfare, to regulate insurance companies, and the management of their affairs, and to provide by law for that protection to policy-holders which they could not secure for themselves. Under such conditions there should be a wide range of legislative power to promote the public welfare in the exercise of the police power, and the true boundaries of that power it would be difficult in such a case to prescribe. We have no occasion now to specify to what extent it might reach, or in any way to place upon it its proper limitations, because in order to justify the act in question, it is not necessary to resort to that power. The business of life insurance in this State is mainly carried on by insurance companies authorized by law, and minute provisions are made regulating their incorporation and their business, and a department of the State government has been constituted to supervise them. The corporations organized under the laws of this State for life insurance are absolutely under the direction and control of the Legislature. specify how and on what terms they may do business, and enact laws regulating their conduct, and the conduct of their agents, for their protection and the protection of their policy-holders, and enforce obedience to such laws by such penalties, forfeitures and punishments as it may, within constitutional limits, prescribe. As all these corporations must act through agents, it has the same power and authority to regulate the conduct of their agents as it has to regulate the corporations themselves. It would be quite preposterous to say that while the Legislature could, in the exercise of its legitimate authority, regulate these corporations, and prescribe the terms under which they may exist and do business, and yet could not by similar laws regulate and control the conduct of their agents. When these corporations seek the benefits and privileges of the laws creating and authorizing them, they must conform to the laws enacted for their conduct, and if they are unwilling to do so, they must go out of existence. So too all persons who seek to act as agents of such corporations must conform to the laws regulating the business of such corporations or cease to act for them. We have not here the question as to what a private individual may do in the conduct of his private business, but the question here is as to the power of the Legislature over corporations and their agents. The power exercised over these insurance companies and their agents is similar to that exercised by the Legislature over banks and railway corporations, and it has never been doubted that such power exists, and the legislative power to regulate them and their agents in the minutest particular in the interest of the public has never been questioned. (2) In a prosecution against the agent of a Vermont life insurance company for paying a rebate to induce one G. to insure his life in such company, it appeared in evidence that the company was doing business in New York, and that the policy issued to G. was indorsed by the agent as general agent of the company. Held, that inasmuch as the company could not have done business in New York had it not been a corporation duly authorized, the evidence was sufficient to sustain the allegation of the indictment that the company was a corporation organized under the laws of Vermont. (3) The agent was indicted on October 30, 1890, and the indictment alleged the commission of the offense on October 26, 1890. The proof showed the offense to have been committed about a year before the time al leged. The variance was not called to the attention of the trial court, nor was an exception taken presenting the point for review. Held, that the judgment should not be disturbed on the ground of such variance. (4) Where the act applied to the agents of foreign as well as to those of domestic life insurance companies, it was immaterial that defendant's company was a foreign corporation. March 15, 1892. People v. Formosa. Opiniou by Earl, C. J. 16 N. Y. Supp. 753, affirmed. EJECTMENT-DEFENSES - POSSESSION UNDER CONTRACT. In ejectment to recover lot No. 192 in a cemetery it appeared that the cemetery was formerly owned by eleven persons as tenants in common, eight of whom executed to G. and M. a power of attorney to sell the premises and acknowledge and deliver good and sufficient deeds of conveyance. That G. uudertook the execution of the power, and continued to sell lots during his life, and that after his death, his sonin-law, B., acted as the attorney and comptroller of the owners, with their knowledge, for about eight years, and until his death. That he collected the money and paid the liabilities of the owners, and kept a book in which the sales of lots were entered, with the amounts paid. That on such book appeared the following entry: "April 22, '67. J. T. 192......21x23 .....483. .$72.50." J. T. was defendant, and it appeared that he had paid B. $30.47 as part payment for the lot No. 192, and had taken a receipt therefor, and at the same time agreed to pay the balance of the purchase-price on delivery of a deed therefor. That no deed was ever tendered or a demand made for such balance. That for more than twenty years defendant occupied the lot for the burial of his dead. That it was improved, graded and sodded, and that every year he caused flowers to be planted thereon. Held, that plaintiff could not recover, because if defendant's contract was executory, he was entitled to possession until a deed was tendered and the balance of the price demanded; and if the contract was not executory, defendant's title was complete by adverse possession Second Division, March 22, 1892. Conger v. Treadwell. Opinion by Haight, J. 7 N. Y. Supp. 809, affirmed. EVIDENCE-DECEIT.-In an action for the price of a "mining claim," defendants answered, as a defense and counter-claim, that plaintiff falsely and fraudulently represented that his claim covered the whole of a certain lode," whereas he had executed a prior conveyance for an interest in said claim for the "south one hundred feet of the surface ground," whereby defendants sustained damages Plaintiff denied making false representations, and testified that he fully informed defendants that he had given a prior surface right to another. Held, that the issue being as to whether plaintiff made the fraudulent representations, it was not material thereunder whether the prior deed covered only a surface right or an interest in the mine under the surface, the construction of the deed having no bearing on the truth or falsity of the evidence. Second Division, March 15, 1892. McIntyre v. Buel. Opinion by Brown, J. 10 N. Y. Supp. 332, affirmed. HIGHWAYS-ESTABLISHMENT BY USER-ENCROACHMENTS. (1) Chapter 6, Laws of 1865, extending to Suffolk county the provision of 1 Revised Statutes, page 521, section 100, provides that all roads which have been used for public highways for twenty years or more shall be deemed public highways, converts into a public highway, immediately on its taking effect, a road in that county which had previously been used as a public thoroughfare for twenty years. (2) The commissioners of highways, with a view of causing an encroachment in a public highway to be removed, made au order describing the encroachment, and directed its removal. A notice to remove the encroachment was annexed to the order and served on the encroaching land-owner. The notice did not contain the specifications set out in the order, but it referred to the order. Held, that the proceeding was in compliance with 1 Revised Statutes, page 521, section 103, as amended by chapter 245, Laws of 1878, which provides that "such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or eucroachment, and the place and places where the same shall be. Second Division, March 22, 1892. James 7. Sammis. Opinion by Bradley J. 10 N. Y. Supp. 143, affirmed. OF HIGHWAYS-OVERHANGING BRANCHES-LIABILITY TOWNS-NEGLIGENCE-EVIDENCE-INSTRUCTIONS. —(1) In an action against a town for personal injuries received by being swept from a load of hay by an overhanging limb while driving along a bighway, the court, while discussing the negligence of the commissioners, charged, "Now it is nothing of any consequence that thousands passed there without injury," but there after, when requested to instruct "that the jury have a right to take into consideration the circumstance that people driving on loads of hay had passed under this tree," in determining whether there was sufficient to charge the commissioners with notice, replied, "It might be some evidence." Held, that the court gave the fact that many had passed the tree without injury all the probative force that it was entitled to. (2) Plaintiff had occasionally travelled the highway, but never with a load of hay,and testified that he had never had occasion to observe how low the branches hung, or how far over the road they extended. Defendant's three highway commissioners, who had been in office from six to twelve years, testified that they had never known any difficulty about the tree, and had never noticed that its branches overhung the road. Held, that the question of contributory negligence was for the jury. (3) The fact that after defendant town's commissioners were elected, but before the accident, part of the town was incorporated into a city, does not render the city in any way liable. Second Division. March 15, 1892. Embler v. Town of Wallkill. Opinion by Follett, C. J. Haight and Landon, JJ., dissenting 10 N. Y. Supp. 797, affirmed. FALSE STATE INSURANCE-LIFE APPLICATION MENTS.-Where an application of insurance, which is made a part of the policy, stipulates that the answers to the questions propounded are warranted by the insured to be true, and that the rights of the insured shall be forfeited if any untrue or false statements are made, the policy is avoided by a false answer to the question whether the insured had ever been rejected by any other life insurance company. March 15, 1892. Clemens v. Supreme Assembly Royal Society of Good Fellows. Opinion per Curiam. 16 N. Y. Supp. 378, тет., reversed. ICY. INTEREST - WAIVING CONDITIONS OF POL- (1) Administrators conveyed property to plainiff in trust to sell it, and distribute the proceeds among the heirs of their intestate, and on receiving the conveyance, plaintiff orally agreed to take possession of the property, care for it, rent it and keep it insured. Held, that plaintiff had an insurable interest. (2) A fire insurance policy issued to plaintiff in such case contained the usual conditions declaring it void if plaintiff was other than the sole and unconditional owner, or if the buildings were on ground not owned by the assured in fee-simple, or if they should become or remain vacant for ten days. Plaintiff's son was the general agent of defendant company, and personally examined the buildings before issuing the policy, and knew that they were vacant. He also had notice of the nature of the title, and the policy described plaintiff as |