version of the intent of the act to extend it to those who have acquired mere nominal membership in a volunteer department without actual rendition of service or any evidence of an intention to serve. The facts attending the relator's membership in the Richmond Fire Department show clearly that he never became a member of the fire company in good faith, and when he joined neither expected nor intended to perform any fire duty, and in point of fact never did perform any. When the present city of New York was created, the former cities of New York and Brooklyn were served by paid fire departments, but Richmond and Queens counties, being rather suburban than urban, were served by volunteer fire departments. Section 722 of the Greater New York Charter (chapter 378, p. 252, Laws 1897) provided, among other things, as follows: "The paid fire department system shall as soon as practicable be extended over the boroughs of Queens and Richmond by the fire commissioner, and thereupon the present volunteer fire departments now maintained therein shall be disbanded." Evidence was offered on the part of the defendants showing that early in the year 1905 the proper municipal authorities took up the subject of carrying the foregoing provision of the charter into effect, and that Richmond Hook & Ladder Company No. 4 was one of the volunteer companies which it was proposed to discontinue and disband. That company had, prior to June 1, 1905, 23 members. The initiation fee for each member was $2, and every person elected was required to provide himself with a uniform within 90 days after his election. On June 1, 1905, the by-laws were suspended or amended so as to make radical changes in their requirements as to new members. The initiation fee was increased to $10, and other charges were imposed, making the total payment by a new member $13.25, instead of $2, as theretofore. The requirement as to providing a uniform was extended 30 days, and the limit of membership was raised to 999. Thereupon at the same meeting, which was adjourned several times for the purpose, 985 new members were elected, of whom the relator was one, and among whom were a number of others who have in other proceedings (heretofore unsuccessfully) striven to avail themselves of the protection of the statute. The relator never procured a uniform because the company was disbanded within 120 days after he was elected. He attended, as he says, one fire during that time, but whether as a spectator or a working fireman does not appear. He is extremely frank in telling why he joined the company. He says that he has always lived and voted in Manhattan, and lived there when he joined the fire company. He never lived in Richmond county, although he visited a friend there during the summer of 1905. He testified that he went to Richmond county for the purpose of joining the fire department, and that his object in doing so was to become a volunteer fireman and take advantage of the civil service law so as to protect himself against removal from the position he then held. It is perfectly clear that the relator never joined the fire department in good faith with the intention of performing service therein, but that his action in that regard was a mere sham, taken for an and intent of the act upon which he relies, and if the court had submitted the question of good faith to the jury, as defendants requested, the inevitable verdict must have been that he did not join the fire company in good faith. Any other verdict would have been against the evidence. We concur with the views expressed by Mr. Justice Kelly (Matter of Bell, N. Y. Law J., January 18, 1906) when he said: "I think the preference in employment and the right to a hearing before removal given by section 21 of the civil service law to members of volunteer fire departments, and to persons who are members at the time of disbandment of such volunteer fire departments, applies to active members who perform the duties of volunteer firemen. As to such persons who expose life and limb for the protection of the public the Legislature might well grant them preference and privileges not enjoyed by others. I do not interpret the provision of law cited to mean that a man obtains such preference over his fellows simply because his name is inscribed on the roll of a fire company in some distant part of the state. Such a construction of the statute would be unjust to the bona fide volunteer firemen and to the public." The relator's membership in the Richmond fire company was a mere sham and fraud, and did not bring him within the clear intent and reason of the statute, and his application for a mandamus should have been denied on that ground alone. There are other reasons, however, why he must fail. The relator was not appointed by the board of coroners, nor was he appointed pursuant to section 1571 of the revised charter (Laws 1901, p. 646, c. 466), which authorizes the coroners in each borough to appoint a clerk, as was the case with the relator in People ex rel. Hoefle v. Cahill, 188 N. Y. 489, 81 N. E. 453. Relator was appointed by Coroner Scholer alone, and his appointment was as "private clerk." He never passed any civil service examination, and his appointment was authorized by section 12 of the civil service law, which reads as follows: "The Exempt class. The following positions shall be included in the exempt class: (3) One clerk and one deputy clerk, if authorized by law, of each court, and one clerk of each elective judicial officer." * * The coroners are elective judicial officers (People v. Jackson, 191 N. Y. 293, 84 N. E. 65, 15 L. R. A. [N. S.] 1173), and each coroner is therefore entitled to appoint, without reference to any civil service list, one personal clerk (Goldencranz v. Municipal Civil Service Commission, N. Y. Law J., Nov. 8, 1902; Munch v. City of New York, 47 Misc. Rep. 128, 93 N. Y. Supp. 509; O'Connor v. City of New York, 48 Misc. Rep. 407, 95 N. Y. Supp. 504). Such an appointment. is personal to the judicial officer making the appointment and dies when he ceases to hold office. People ex rel. Whitman v. Goldenkranz, 38 Misc. Rep. 682, 78 N. Y. Supp. 267. In the very nature of things relator's position as private clerk to Coroner Scholer came to an end when Scholer ceased to be coroner, and consequently relator held no position on January 1, 1906, and there is none to which he can be reinstated. Furthermore, his position as private clerk to an individual coroner is strictly analogous to, if not identical with, that of private secretary, to which, by express exemption, section 12 of the civil service law does not apply. The result is that the orders appealed from must be reversed, and the writ dismissed, with $50 costs to the defendants. All concur. LYNCH v. GERMANIA LIFE INS. CO. (Supreme Court, Appellate Division, Third Department. May 5, 1909.) 1. INSURANCE (§ 377*)-LIFE POLICY-WARRANTY-WAIVER. A life insurance company, having knowledge that applicant had been previously rejected by another company, cannot rely upon a breach of the warranty that applicant had not been so rejected. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 996; Dec. Dig. § 377.*] 2. INSURANCE (§ 668*)-LIFE POLICY-ACTIONS-QUESTIONS FOR JURY. Whether the examining physician correctly wrote applicant's answer to the question whether she had consulted a physician or had had any disease held, in an action on the policy issued, for the jury. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 668.*] 3. INSURANCE (§ 648*)-LIFE POLICY-ACTIONS-EVIDENCE-ADMISSIBILITY. In an action on a life policy, an application by insured to another company, tending to contradict her statement as to not having consulted a physician, should have been received in evidence. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 648.*] 4. WITNESSES (§ 209*)-"PRIVILEGED COMMUNICATIONS"-PHYSICIAN AND PA TIENT. Information obtained by an examining physician to enable a life insurance company to determine whether the person examined is a proper risk is not "privileged" by Code Civ. Proc. § 834. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 209.* For other definitions, see Words and Phrases, vol. 6, p. 5592; vol. 8, p. 7764.] Appeal from Rensselaer County Court. Action by Michael Lynch against the Germania Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. Shaw, Bailey & Murphy, for appellant. JOHN M. KELLOGG, J. The defendant resists the claim of the plaintiff, the beneficiary in the policy issued upon the life of Mary E. Lamere, upon the ground of misstatement of facts in the application, which statements were agreed to be warranties upon the faith of which the policy issued. The applicant stated as such warranties: (1) That no application for insurance upon her life had ever been rejected or modified. (2) That she never had been examined for insurance without getting a policy. (3) That she never had had any disease of the heart. (4) That she had not consulted a physician for 16 years, except Dr. McGee, in confinement. (5) That no physician had ever given an opinion that she was not safely insurable. The applicant had made a previous application to the Prudential Life Insurance Company, which had been rejected; but the evidence tends to show that the defendant had some knowledge that she had been previously rejected by some company. If the defendant had knowledge of the facts, it cannot rely upon the breach of warranty in that respect. Upon the evidence it is a fair question of fact whether the company relied and acted upon this warranty, or whether it was immaterial in view of the knowledge which it had otherwise gained. January 5, 1906, the application for this policy was made. It appeared that the applicant, in December, 1905, had consulted Dr. Irish, and he had been to her house for the purpose of examining her and did treat her as his patient. The plaintiff meets this situation by the testimony of his brother, who swears that he happened to go into the room when the sister, the applicant, was being examined for this policy, and that she stated to the examining physician, in answer to the question whether she had consulted a physician or had had any diseases, in substance, that she had consulted several physicians for various matters which a woman might be subject to, seeking to raise the inference that the physician did not correctly write her answer. Without considering the admissibility of this testimony, it is sufficient to say that it was contradicted by the application itself, and that this evidence and the application raised a question for the jury as to whether the application signed by her gives the correct answer, or whether the oral testimony of the brother contains the answer she gave. The evidence tended to show that the witness was interested. Exhibit No. 4, the application to the Prudential Company upon which it declined the risk, tended to contradict the statement of the applicant as to her consulting a physician, and should have been received in evidence. Dr. Zeh, the physician who examined her in the interest of the Prudential, and upon whose recommendation the risk was declined, was a competent witness to show the state of health of the applicant, and his statements to her would tend to show her knowledge of the condition of her health, and that she was not insurable. His testimony was not privileged under section 834, of the Code of Civil Procedure. The information he was asked to give was not acquired by him while attending a patient (Meyer v. Knights of Pythias, 178 N. Y. 63, 70 N. E. 111, 64 L. R. A. 839), but was obtained for the benefit of the company for which he was acting as agent (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 62 N. E. 763, 57 L. R. A. 318, 88 Am. St. Rep. 625). It was intended that the information received by him should be communicated to his company to enable it to determine whether the person examined was a proper risk for insurance. The object of the examination was not treatment, but to acquire information for the benefit of the company. The judgment and order should therefore be reversed, and a new trial granted, with costs to the applicant to abide the event. All con cur. (62 Misc. Rep. 189.) FULTON LIGHT, HEAT & POWER CO. et al. v. STATE. (Court of Claims of New York. January, 1909.) 1. STATES (§ 1*)-ACTIONS-RULES OF LAW APPLICABLE. The general rule is that the state is to be governed in its controversies in court by the same principles of law that apply as between individuals. [Ed. Note. For other cases, see States, Dec. Dig. § 1.*] 2. PUBLIC LANDS (§ 163*)-GRANTS BY STATE-CONSTRUCTION. The rule construing a grant by the state strictly against the grantee does not apply to a grant of real estate where there is a consideration. [Ed. Note.-For other cases, see Public Lands, Dec. Dig. § 163.*] 3. BOUNDARIES (§ 15*)-GRANT OF LANDS BORDERING ON-OWNERSHIP OF BED OF STREAM. A grant by the state of land bordering on a nontidal stream, though navigable in fact, carries title to its center and the riparian rights incident thereto unless reserved: such reservation, if not an express one, to be determined by the language of the grant in the light of the presumption which favors an extension to the center of the stream. [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 108-117; Dec. Dig. § 15.*] 4. NAVIGABLE WATERS (§ 1*)-DEFINED. The term "navigable" at common law and in a legal sense means a stream in which the tide ebbs and flows, and the fact that a river is quite a large one and capable of furnishing considerable water power does not change the rule, nor does the fact that the river may in certain portions of it be a navigable stream in fact, for that merely affects the question of the public right to transportation over it. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. §§ 5-16; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 5, pp. 4675–4681; vol. 8, p. 7728.] 5. NAVIGABLE WATERS (§ 39*)-IMPROVEMENT OF CHANNELS AND STREAMS. The riparian rights of the owner of the upland on a tide-water stream or on a nontidal stream, navigable in fact, are subject to the paramount right of the state and federal government to improve navigation and regulate commerce. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 21; Dec. Dig. § 39.*] 6. NAVIGABLE WATERS (§ 7*)—IMPROVEMENT OF CHANNELS AND STREAMS. The construction of a barge canal cannot be held within the reserved power of the state to improve a river for navigation, where something entirely apart from the river, except as it may be necessary to obtain from it an additional supply of water. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 18; Dec. Dig. § 7.*] 7. BOUNDARIES (§ 49*)-DISPUTED LINE-PRACTICAL LOCATION. The doctrine of practical location may be resorted to where the exact location of the line bounding state property, as shown on a map introduced, appropriated for a canal, has not been established, and in addition other maps have been filed which are at variance with such line. [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 243-248; Dec. Dig. § 49.*] |