ground for suspicion of fraud, surprise or mistake, and to justify the setting aside of a judicial sale. This case is not so near the border as to give much trouble. The price was certainly inadequate and this inadequacy of price is accompanied by a misapprehension to say the very least. It is not important whether or no Mr. Brown's authority was sufficient to justify his acts. He was the agent of the Bank to attend the sale in its interest, and if as such agent he made the alleged agreement, and if thereby Cassidy and his friends were induced not to bid, believing Cassidy was to have the property back for the amount due on the judgments, then the Bank is bound by his acts. We place our decision on the ground of inadequacy of price, and well grounded misapprehension produced by the agent of the purchaser. The terms of the order are unobjectionable and insure the interests of all parties. Order affirmed with costs and disbursements. Opinion by Dykman, J. TITLE. VESSELS. EVIDENCE. N. Y. COURT OF APPEALS. Wilson, respt., v. Knapp, exrx., etc., et al., applts. Decided June 19, 1877. An owner of a vessel who has given a mortgage thereon which contains no power to sell or take possession, but provides for a foreclosure, the same as of a mortgage of lands, still retains the title, although the vessel is in the hands of assignees of the instrument, and they retain the profits, and may main tain an action to recover damages for an injury to such vessel. It is not necessary that a memorandum produced to refresh the recollection of a wit ness or to serve as testimony, should be the first or original note of the fact. This action was brought to recover damages for injuries to a barque belonging to plaintiff, by a collision with a ferry-boat belonging to defendant's testator. Upon the trial it was claimed that plaintiff was not the real party in interest and had no right to sue. It appeared that the boat was registered as belonging to him, but that he had executed an instrument in writing which recites an indebtedness of plaintiff to the party to whom it was given, and that to secure the same and interest plaintiff gives "this guarantee mortgage" upon the vessel, etc. It contained no power to sell or to take possession, but provided for a foreclosure in case of default, the same as of a mortgage upon lands. The vessel, at the time of the accident, was in the hands of the assignees of said instrument, and they retained her profits. E. Wetmore, for applts. W. W. Goodrich, for respts. Held, That plaintiff could maintain this action; that the instrument executed by him was not a chattel mortgage; that he still had title to the vessel. materials furnished, and labor in reThe book in which entries of the pairing the vessel were made, was offered in evidence. This book was made up according to the custom of a firm from a report made every night of the materials furnished and men employed during that day to the bookkeeper, it was verified by the latter, and by the persons who made the daily reports to him as accurate and true. The reception of this book in evidence was objected to on the ground that the idence was hearsay, not founded upon the personal knowledge of the witness, and not original entries. The objection was overruled. Held, no error; it is not always required that a memorandum produced to aid the recollection of a witness, or to serve itself as testimony, should be the first or original note in writing of the fact. A true copy of the original is often admitted for the same purpose. 49 N. Y., 303. track of the A. & S. R. R. Co. Printed instructions to this effect had been given by defendant to its employees. The same flagman was employed by both companies, and at the time the accident occurred, defendant's train was approaching the crossing, and slowed up to stop, when the flagman signaled it to come on and the speed of the train was increased, and it approached the crossing. At the moment the flagman signaled defendant's train to come on, the train upon which deceased was engineer approached, and the flagman signaled Opinion by Folger, J. All concur. it to stop. He then signaled defendEarl, J., not voting. Judgment of General Term, affirming judgment of Special Term for plaintiff, affirmed. NEGLIGENCE. PRACTICE. N. Y. COURT OF APPEALS. Wood, admrx., etc., respt., v. The N. Y. C. & H. R. R. R. Co., applt. Decided June 19th, 1877. ant's train to come on, and upon discovering that his danger signal had not been seen on the other train, he signaled both trains to stop, but too late to prevent the collision. Defendant moved for a nonsuit on the ground that no negligence had been proved, and that contributory the part The question of negligence is for the jury to negligence appeared upon determine. It is not error to submit to the jury the ques tion whether a violation of the rules of a railroad company by its employees caused the injury complained of, and whether such violation was negligence. This action was brought to recover damages for the killing of W., plaintiff's intestate. The accident occurred through a collision of a train of defendant with a train of the A. & S. R. R. Co., at a point where defendant's track crossed the track of the A. & S. R. R. Co. W. was at the time an engineer on a train of the latter company. It appeared that an agreement had been made between it and defendant, by which its trains were to have the right of way over defendant's, and that all the latter's trains should come to a full stop before crossing the of the deceased. The motion was denied, Matthew Hale, for applt. Held, no error; that the question of defendant's negligence, and of the contributory negligence of the deceased, were properly submitted to the jury. Error was claimed upon a refusal to charge that a violation of defendant's rules by its employes was not negligence, and in submitting the question to the jury whether such neglect in this case caused the injury, and whether it was negligence not to be governed by them. Held, no error. It appeared that the flagman knew that the train on the A. & S. road had arrived at the next station, and might arrive at any moment, and that he could see up the track three-fourths of a mile. The Court refused to charge that if at the time the flagman signaled defendant's train to stop, the other train was not in sight, his act was not negligent. Held, no error. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Church, Ch., J. All concur, except Allen, J., taking no part. LIFE INSURANCE. PRACTICE. N. Y. COURT OF APPEALS. Cushman, admr., etc., v. The U. S. Life Ins. Co., applt. Decided June 5, 1877. In construing a policy of life insurance, a temporary ailment, in order to be called a disease, must be such as to indicate a vice in the constitution, or be so serious as to have some bearing on the general health and continuance of life, or such as is commonly called a disease. In order to constitute medical attendance it is not necessary the physician should attend the patient at his own home, an attendance at his own office is sufficient. A statement in the proof of death, by the physician making it, that he had been the medical attendant for a longer period than the policy had run, will not prevent proof on the trial as to who was the usual medical attendant of the insured. cation, he had attended the insured several times for light illnesses, which he considered and treated as congestion of the liver, and that he died of congestion of the liver. Defendant's examining physician, who had known the insured for many years, testified that he examined him upon his application for insurance, and found his liver sound, and that from the symptoms detailed to him by the other medical witness, in a consultation shortly before the death of the insured, he did not die of congestion of the liver but of inflammation of the bowels. Defendant moved for a nonsuit, which motion was denied. F. B. Chandler, for applt. E. B. Thomas, for respt. Held, No error; that the question in the application as to disease of the liver, was not asked to acquire infor mation as to merely temporary disor ders or functional disturbances having no bearing upon general health. In construing a policy of life insurance, it must be generally true that before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or so serious as to have some bearing upon general health and the continuance of life, or such as according to common understanding would be called a disease. A general objection to evidence is not avail- 2 Park on Ins., 933, 935; 1 M. & R., able as ground of error on appeal. Affirming S. C., 1 W. Dig., 111. This was an action upon a policy of life insurance. The application for the policy contained, among others, the question whether the applicant had ever had disease of the liver, to which he answered "No." It was proved on the trial by one physician, that, prior to the making of the appli 498; 3 F. & F., 440; 3 T. & C. 578; 20 N. Y., 293; 53 Id., 603; 59 Id., 571. The insured stated in the application that one Dr. P. was his usual medical attendant. The insured resided with his father prior to the insurance. Dr. P. had been his father's family physician for many years, an the insured had called upon him every year, and sometimes more frequently, and consulted him as a physician. It REGISTERS. COUNTY CLERKS. TERM. SECOND DEPT. was proved that he had in one illness N. Y. SUPREME COURT. GENERAL been attended by a Dr. G., and that a Dr. O. had attended him several times during the last few years of his life, not over in all a half dozen The People ex. rel. Cyrus Lawrence, respt., v. The Board of Supervisors of Westchester Co., applt. Decided July 6, 1877. The Register of Westchester County is not en- County except for record books and station- The Board of Supervisors of Westchester County, at their annual meeting in 1876, audited a bill for books and stationery furnished the office of the Register of that County. This bill included charges for erasers, pencils, bands, rulers, seals, etc.. amount There was annexed to the claim and proof of loss furnished by plaintiff, a statement of Dr. O., as physician in attendance upon the assured in his last illness, and in answer to the question "How long have you been the attendant or family physician?"ing to about $100. Relator, a taxhe answered "Five years." The policy was issued in November, 1871, and this statement made in August, 1873. Held, That this did not show a breach of warranty or prevent plaintiff from proving on the trial the truth as to who was the usual medical attendant of the insured, 17 Wal., 672; that plaintiff was not responsible for the misstatements of Dr. O. Defendant upon the trial objected generally to evidence offered by plaintiff, and did not specify that no proper foundation had been laid for it. Held, That the objection was not available here as ground of error. 42 N. Y., 251; 46 Id., 481. Judgment of General Term, affirming order denying new trial, and giving judgment for plaintiff on verdict, affirmed. Opinion by Earl, J. All concur. payer in said County, thereupon made C. H. Roosevelt, for applt. Held, By the act of 1858, Ch. 293, § 10, the Register is entitled to the same allowance for books and stationery as the County Clerk. § 6, of Ch. 125 of the Laws of 1844, prohibits County Clerks from making any charge against the County, except for record books and stationery furnished by him for Courts held in the County. The charge for stationery in this case was, therefore, illegal. The Supervisors had no power to allow it to the Register or to the stationer. Order affirmed with costs. Opinion by Gilbert, J. PRACTICE. VARIANCE. N. Y. COURT OF APPEALS. · dismissed, although not dismissed on that ground. W. A. Beach, for applt. J. S. Woodward, for respt. Held, That the General Term was clearly in error as to the ground up Williams, admrx. &c., applt., v. on which it placed its decision. Slote et al., respts. Decided June 12, 1877. Where, in an action for an accounting of sales, in which the complaint claims that defendants had made fraudulent statements of their sales to plaintiff's damage, the complaint is dismissed on the ground that such statements were correct, it is error for the General Term to base its affirmance of the judgment solely upon the ground that the complaint stated an equitable cause of action and the cause of action proved was a legal one. Judgment of General Term, affirming judgment for defendant, reversed and new trial granted. Opinion by Earl, J. All concur. SECURITY. N. Y. COURT OF APPEALS. Matthews, admrx., &c., respt., v. Sheehan, applt. Decided May 22, 1877. Where a party takes out a policy of insurance on his own life and assigns the same to another, who agrees by parol to pay the premiums thereon, and to reassign the policy on being reimbursed for the premiums paid, such assignment is a mortgage, and not a conditional sale. In all doubtful cases, where the intention of the parties cannot be ascertained, a contract will be construed to be a mortgage rather than a conditional sale. Plaintiffs brought this action to recover a certain per centage upon the amount sold of certain publications of the defendants, which the latter had contracted to pay to his intestate, and claimed that defendants had made fraudulent statements of their sales, and that, relying on these statements, plaintiff had received money, and judgment was demanded that an account be taken and that defendants pay plaintiff such sums as the account-ceived by defendant upon an insuring shall show to be due, and that she shall have such other and further relief as was just, besides costs. The case was referred, with the consent of both parties. The referee found that the accounts rendered were true and dismissed the complaint. Upon appeal to the General Term the judgment was affirmed on the sole ground that the cause of action stated in the complaint was an equitable one, whereas the cause of action proved was a legal, and that hence the complaint was properly Affirming S. C., 3 W. Dig., 355. This action was brought to recover moneys claimed to have been re ance on the life of O., plaintiff's testator. It appeared that an agreement had been made between defendant and O., under which the latter was to take out a policy of insurance upon his life, and assign it to defendant, who was to pay the premiums and have the benefit of the policy, with the understanding that if at any time O. desired to redeem it, he could do so by paying the premiums advanced by defendant, with the interest thereon. O. procured the policy and immediately assigned it to |