contract under which a plaintiff claims, made by a defendant or some third party without the plaintiff's consent, and while the contract is out of plaintiff's hands, has no effect, and the contract will remain as it originally stood, provided the nature and extent of the alteration can be clearly ascertained, and it can be seen what the contract was at the time it was executed. Add. Con. 286, and authorities cited; Nichols v. Johnson, 10 Conn. 192; Phil. Ins. §§ 114, 115; Van Brunt v. Eoff, 35 Barb. 501. We are therefore of the opinion that the alteration in question was not a tortious act on the part of the defendant, and did not constitute a conversion of the policy. We are also of the opinion that the plaintiffs have suffered no damage from the act complained of.

At the time of the destruction of the Adelaide, they had no interest in the contract except to have the moneys recoverable thereon collected, and applied in reduction of their indebtedness to the mortgagees, and for the purpose of effecting this object the mortgagees were their agents, and responsible to them for the manner in which that right was enforced. Cone v. Niagara Ins. Co., 60 N. Y. 619. The whole insurance moneys were no more than sufficient to pay the mortgage, and would in no event afford a surplus recoverable by the owners of the property. But, however this may be, we have seen that the plaintiffs' remedies upon the policy were not impaired by the alteration made in it, and therefore they cannot have suffered damages by reason thereof.

The judgments of the court below should be affirmed. (All concur.)

1. HUSBAND AND WIFE-DIVORCE EVIDENCE NECESSARY TO ESTABLISH FACT OF ADULTERY.

In a civil action, the fact of adultery may be proved by such facts and circumstances as, under the rules of law, are legal evidence, admissible in a court of justice, which clearly satisfy the mind of the tribunal which is required to pass upon the question of the commission of the act.

2. SAME-EFFECT TO BE GIVEN TO CIRCUMSTANTIAL EVIDENCE.

The referee should neither be misled by circumstances, reasonably capable of two interpretations, into giving them an evil rather than an innocent one, nor refuse to give them their plain and natural significance, on the theory that a different standard of judgment applies to such cases from that which, in ordinary transactions, guides the conclusions of intelligent and conscientious men.

This action was brought by the plaintiff for a bill of separation, and defendant pleaded the adultery of plaintiff; and the appeal is from order of general term of supreme court, Third department, reversing judgment for plaintiff, and granting new trial.

Matthew Hale, for appellant.

Arthur L. Andrews, for respondent.

ANDREWS, J. The referee, in his formal findings, found that the evidence did not establish the adultery charged. He states, in his opin

'Affirming 31 Hun, 85, mem.

ion, that it failed to satisfy his mind beyond doubt that the intercourse between the plaintiff and Gove was criminal; that while the evidence to sustain a charge of adultery must in most cases be largely circumstantial, yet the circumstances must be such as to satisfy the mind of the actual fact of adultery, and "must lead the judgment, not only by fair inference, but as a necessary conclusion, to the determination that adultery has been actually committed." We do not understand this to be the true rule, although it has support in the language of this court in Pollock v. Pollock, 71 N. Y. 137, which, however, was unnecessary to sustain the judgment in that case. The expression in Pollock v. Pollock was probably founded upon the language of Sir WILLIAM SCOTT in his opinion in the leading case of Loveden v. Loveden, 1 Hagg. Cons. 1, in which, after stating as a fundamental rule that it is not necessary to prove the actual fact of adultery, he proceeded: "In every case almost the fact is inferred from circumstances that lead to it, by fair inference, as a necessary conclusion." It is clear that Sir WILLIAM SCOTT did not mean that adultery could only be established by circumstances from which no other possible conclusion could be drawn, for it is seldom that circumstantial evidence is of such a character that another inference than that to which circumstances naturally lead, cannot be suggested, or is inconceivable. In another part of his opinion, the learned judge declares more fully the rule in respect to circumstantial evidence. "The only general rule," he says, "that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man." It is plain from this language that the learned judge did not, in the former part of his opinion, intend to lay down the rule that the fact of adultery could not be found upon circumstantial evidence, unless the circumstances admitted of no other possible conclusion.

We understand the rule to be that in a civil action the fact of adultery may be proved by such facts and circumstances as, under the rules of law, are legal evidence, admissible in a court of justice, which clearly satisfy the mind of the tribunal which is required to pass upon the question of the commission of the act. In weighing the evidence, and considering the facts and circumstances, great care is necessary, on the one hand, not to be misled by circumstances reasonably capable of two interpretations, into giving them an evil rather than an innocent one; nor, on the other, by refusing to give them their plain and natural significance, on the theory that a different standard of judgment applies to such cases, from that which in ordinary transactions guides the conclusions of intelligent and conscientious men. The circumstances must be considered separately, and also as a whole. The single thread of circumstance may be weak, but united they often lead, with assured conviction, to the final fact which is the subject of the investigation. Williams v. Williams,

1 Hagg. Con. R. 299; Durant v. Durant, 1 Hagg. Ecc. 733; 2 Greenl. Ev. §§ 40, 41.

We have carefully read and considered the voluminous evidence in this case, and feel constrained to agree with the action of the general term in awarding a new trial. The learned referee, we think, proceeded upon an erroneous impression as to the rule which should be applied in weighing the circumstances,—an error which may have affected his conclusions. We shall, without going into detail, indicate in a general way the considerations which lead us to affirm the order of the general term. The marital relations between the parties, from their marriage, in 1873, to the spring of 1880, were not marked by any very unusual circumstances. There were two children of the marriage, one of whom survives. There were occasional disputes, but no serious difficulty, between the parties until that year. In the spring or summer of 1880, one Gove, about 32 years of age, who had known the plaintiff by sight when a school-girl, and whose business was that of a milkman, commenced calling upon the plaintiff at the defendant's house, on Clinton avenue, Albany. These visits continued with considerable frequency during 1880 and 1881, and up to shortly before the commencement of this action. They were generally in the day-time, during the absence of the plaintiff's husband, who usually left home in the morning, and did not return until evening. Gove had no business which called him to the defendant's house, but his visits were solely for the purpose of seeing the plaintiff. Gove also met Mrs. Allen at the house of a widow, Mrs. Cornelius, although, as he testifies, not by appointment. He frequently walked with Mrs. Allen in the streets, and on some occasions, as witnesses testify, arm in arm. On several occasions he rode with her in a buggy, meeting her at some point away from her house, and, on returning, leaving her at some other place. There is evidence that, on occasions where she was riding with Gove, she apparently used her parasol to avoid recognition. In the summer of 1880, she took the cars to go to Sharon Springs, to visit Mrs. Cornelius, who was there at the time, and Gove took the same train, on his way (as he testifies) to a horserace; but, finding Mrs. Allen on the train, he went with her to Sharon Springs, and returned with her the same evening. The visits of Gove at the defendant's house attracted the attention of the neighbors. would remain there from half an hour to several hours at a time. servant girl testifies that when Gove came, Mrs. Allen would send her little daughter, Grace, down stairs, and the door at the foot of the basement stairs would be holted, so that no one could go to the upper part of the house. Mrs. Cornelius explains that she had known this to have been done in summer time, when the outer basement door was open, to prevent strangers or intruders from getting into the house.

He

The

The testimony as to the transactions at the house of Mrs. Cornelius is contradictory. Her husband died in the spring of 1880, soon after he went with his family to reside in Lark street, and his widow continued to live in the house for about a year after his death. It appears that both Mr. and Mrs. Allen were in the habit of visiting Mrs. Cornelius. After.

a time the character of the house kept by Mrs. Cornelius became the subject of comment among the neighbors, principally from the fact that several gentlemen were accustomed to call there. The upper part of the house was occupied by one Brown, with his family. He testified to observations made while the plaintiff and Gove were in the apartments of Mrs. Cornelius, which, if true, leave little doubt of criminal relations between them at that place. Other witnesses also testify to suspicious circumstances occurring there. Brown is not impeached, and we discover nothing upon the face of his testimony which discredits it. It is but just, however, to say that both Mrs. Cornelius and Gove deny the truth of his statements.

In the spring of 1881 very serious difficulties and quarrels arose between the plaintiff and defendant, resulting in violent altercations and the infliction of injuries by the defendant upon the plaintiff. They are detailed by the plaintiff in her evidence. On one occasion, in the summer of 1881, after one of these affrays, in which the husband was the aggressor, the plaintiff made complaint to the police justice against her husband; but, on his advice, withdrew the charge. The evidence leaves no doubt that the defendant was, at times, very unreasonable, violent, and abusive towards his wife, and treated her with great harshness. But the narration of the plaintiff herself leaves no room to doubt that the defendant, in the great majority of instances, was acting under the influence of passion produced by jealousy. He objected to the plaintiff's being so much in the streets, and to her receiving the attentions of other men. He desired her not to visit Mrs. Cornelius. He upbraided her with her infidelity, and from time to time tried to induce her, by presents and otherwise, to promise not to go out so much into the streets during his absence. This she refused to do. During all this time she kept up her intimacy with Gove. It is proven that notes passed between them, which were delivered by a boy in Gove's employ, and, as the evidence tends to show, in a secret, clandestine manner. Gove admits that notes were sent by him, but omitted to testify as to their contents.

In October, 1881, the difficulties between the parties culminated in the defendant's leaving the plaintiff. She remained in the house on Clinton avenue until early in the next year. The defendant went to live with relatives, and the parties did not subsequently live together. But the intimacy between the plaintiff and Gove continued, and there were subsequent circumstances proved, bearing upon the relations between them, of great significance. Soon after the parties separated, the plaintiff and Mrs. Cornelius went, in a carriage hired by Gove, to Hurst's tavern, several miles out of the city, and there met Gove and one Hurst, and the party remained together several hours, and then returned together to Albany; the plaintiff leaving the carriage at the house of Mrs. Cornelius. Subsequently, in the fall of 1881, the plaintiff and Gove, on six or seven different occasions, drove together to a hotel in New Salem, kept by a Mrs. Shanks, remaining on each occasion several hours, passing as husband and wife. On these occasions they were shown into

a room up-stairs, containing a bed, where they deposited their wraps. The plaintiff informed the landlady that her name was Jones, and introduced Gove as "Mr. Jones, her husband." They passed as husband and wife on each occasion when they went to New Salem, and were supposed, by the persons at the hotel, to occupy that relation to each other. Gove does not deny that they passed as husband and wife, but says that it originated in jest,-an explanation that is not borne out by the other witnesses. We omit further details of the evidence.

We cannot reconcile the evidence in the case with the innocence of the plaintiff. We may be mistaken in the inferences. That is a danger which attends every judicial investigation in which a fact is to be ascertained from circumstances. If we could fairly attribute the conduct of the plaintiff to mere thoughtlessness or imprudence, we should be bound to do so. But her conduct seems to us to be inconsistent with that of a virtuous woman and loyal wife. The intimacy beteen the plaintiff and Gove was not that usual between friends merely. It was continued despite the fact that the plaintiff knew that her husband was jealous of her receiving attentions from other men. The plaintiff testified that her affections were alienated from her husband, and this accords with the whole evidence. The plaintiff and Gove sought each other's society, and at the same time apparently endeavored to screen themselves from observation. Their meetings were secret and clandestine, and we cannot escape the conclusion, judging the transactions in the light of reason and common sense, that their attachment to each other, which cannot be doubted, had its issue in criminal association. The conduct of the parties is to us inexplicable except in this view of their relations.

The order should therefore be affirmed.

(All concur.)

(101 N. Y. 511)

BACH and others v. LEVY and others.1

Filed March 2, 1886.

SALE-WARRANTY OF QUALITY OR KIND-BREACH OF WARRANTY-WHEN NOTE EQUIVALENT TO CASH-MARKET PRICE.

Defendants, through a broker who delivered, bought, and sold notes in the transaction, sold plaintiffs a quantity of tobacco to be "Connecticut Seconds, like samples, and to be paid for by note. The tobacco was of Massachusetts crop, and some of inferior grade. Defendants were notified to return the note, and take back tobacco, but refused, when plaintiffs sold it at auction in one lump, and sued for balance. Held, that plaintiffs were entitled to recover; that under the circumstances their liability on the note was equivalent to cash; that they were entitled to the exact kind of tobacco purchased, and took the right course in selling it in order to determine the market price.2

Appeal from decision of general term of the superior court of city of New York, affirming judgment on verdict of jury.

Mr. Sanders, for appellants.

1 Affirining 50 N. Y. Super. Ct. 519.

For a full discussion of the question of sale by sample and warranty, see Briggs v. Hilton, (N. Y.) 3 N. E. Rep. 51, and note, 58, 59.