Plaintiffs are, however, seized in fee same be not in all respects full, true, of the interests, which they claim to and correct, the said policy shall be void, have derived from the children of and all meneys paid on account thereof Matilda, and their estate is subject to forfeited." One of the questions anno existing life estate, although, if nexed was: "Have the parents, uncles, the trust is valid, it may be subject to aunts, brothers or sisters of the party the right of possession in the trustees for the purpose of continuing to execute the trusts created by the will. Having such an estate they are, according to the views expressed by Denio Ch. J. (in 15 N. Y., 623), entitled to be regarded as having sufficient legal possession to uphold their action for partition. Order affirmed. been afflicted with insanity, consumption, or with any pulmonary, scrofulous or other constitutional disease?" The answer was "No." It appeared that a brother of deceased died of consump tion. There was evidence that the mother, one or more brothers, and one or more of the sisters of the deceased had been afflicted with pulmonary and scrofulous diseases, and had died from Opinion by Davis P.J.; Brady, and their effects. Daniels J. J. concurring. LIFE INSURANCE. FALSE ANS- AGENT. N. Y. COURT OF APPEALS. Baker, appli., v. Home Life Ins. Co., respt. Decided March 21, 1876. A false answer in an application for life insurance avoids the policy, whether the insurer knew its falsity or not, if the answer is a material one If a true answer is given by the applicant to the company's agent who reduced the answer to writing, and in so doing modified or varied its mean ing, the company is estopped from challenging its correctness. A. M. Bingham, for applt. Held, That this fact, whether known to the applicants or not, at the time the policy was applied for it avoided the insurance. Plaintiff proved that the deceased, when the application was made, told defendant's agent that she had been ininformed that one of her brothers had died of consumption. This was denied by the agent. eld, That if this brother had been the only member of the family who had died of consumption, there might have been a question of fact for the jury, whether the fact that he had died of consumption had been communicated to defendant's agent. But the explana This action was brought by plaintiff, tion claimed to have been given in reupon a policy of insurance, upon the gard to this brother's death did not cure joint lives of himself and wife, the lat- the vice of the warranty as to the others. ter having died. Also held, That if true answers were The application for insurance contained given by the applicant to the defendthis clause: "It is agreed that the ans-ant's agent, who filled out the applica wers to the annexed questions shalt be tion and reduced the answers to writ the basis, and form part of the policy ing and the latter modified or varied granted on this application, and if the the answers so as to give them a differ ent meaning from the answers given the store through which the light and by the applicant, defendant would be air entered. It was proved that the estopped from challenging the correct- tenants had access to the yard and the ness of the answers as modified, and privies. While the premises were in this written by its agent; and the answers nominally proceeding from the insured would be regarded as the act of the insurer. (13 Wall. 222; 21 id., 152; 36 N. Y., 550.) Judgment of general term, affirming judgment of nonsuit, affirmed. Opinion by Allen, J. EASEMENT. LIGHT AND AIR. N. Y. COURT OF APPEALS. condition t he first story was leased to plaintiff as a dry goods store for four years. At that time plaintiffs occupied a store the rear of which adjoined the rear of the premises in suit, and it was agreed that the doors opening from the store into the hall and yard should be bricked up to make a place for shelves, and an opening made in the rear wall SO as to make a communication between the two stores. Plaintiffs did not use the privies in the yard as they On May Doyle et al. applts., v. Lord et al., had one in their other store. respts. Decided March 21, 1876. 1, 1874, defendants leased the whole of the premises in suit for ten years sub the excavation complained of. A. J. Vanderpoel for the applt. The lease of a building in the rear of ject to plaintiff's lease, and commenced which is a yard, from which the lessee receives light and air passes the use of the yard as an appurtenant, and an action may be maintained by the lessee restraining any interference with or obstruction of the easement so acquired. Held, That when plaintiffs took their lease the use of the yard passed as an appurtenant, and they acquired an had the doors leading from their store easement therein, and although they into the hall and yard closed, and did not use the privy therein, they were under the terms of their lease entitled to enjoy the light and air which passed This action was brought to restrain the defendants from excavating in a yard, for the purpose of building an addition to certain premises which had been leased by them subject to a lease of a portion of them held by plaintiffs. It appeared that in July, 1870, upon in through their windows from the the premises was a building, the lower story of which was occupied as a store, and the upper stories by families. The space cf 19 feet in the rear of the building was vacant except privies thereon, and there was no communication with any street. There was a hallway on the north side of the building with a door at each end giving access to the yard, and a door from yard (19 Wind., 315, 2 Sandf., 316, 10 Barb., 537, 19, Ohio St., 135, 33 Penn. St., 368, 115 Mass. 204), and that, therefore, the action was maintainable. Judgment of general term affirming judgment dismissing complaint reversed, and new trial granted. Opinion by Earle, J. the lower story into the hall, and REMOVAL OF CAUSE TO U. S also from the rear of the store into the yard, and two windows in the rear of COURT. N. Y. COURT OF APPEALS. Vose, respt. v Yulee, applt. Decided March 21, 1876. Under the act of 1866 (14 U. S., S. at Large 306) a cause cannot be removed from a state to the U. S. Court, where there is but a single defendant. After trial, appeal and reversal, it is too late to remove under the act of 1789. A party seeking to remove a cause must comply strictly with the statute. This action was commenced originally against defendant and several others. upon a joint application in equity. The complaint was dismissed at the trial as to all the defendants, which judgment was affirmed by the general removal could not have been made in the action as it originally stood. Also held, That a state court will not oust itself of jurisdiction unless a plain case is made. The party may apply to the U. S. Court for a mandate staying proc.edings in the state court, and if he omits to do this he must at least show that he has strictly complied with the statute, 49 N. Y., 238. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Church, Ch. J. A BREACH OF WARRANTY. THIRD DEPT. White v. Trustees of the Shakers. religious society, given by the legis lature power to appoint trustees to hold its property, with right of succession to the trustees, are a corporation, and the property of the society is liable for the contracts of such term and by the Court of Appeals as N. Y. SUPREME COURT. GENERAL TERM, to all the defendants except Y., the present defendant, and reversed as to him and a new trial granted (50 N. Y. 369). After the remittitur had been sent down and made the judgment of 4 the Supreme Court, Y. filed a petition to remove the case into the Circuit Court of the United States under the act of 1866 (14 U. S., Stat. at Large, 306), which provides for a removal in case the action is against more than one defendant, one of whom is a citizen of a state other than the one in which the suit is brought, and as to whom a final determination of the controversy as to him may be had without the presence of the other parties. trustees. competent Where admissions are The defendants, by their trustee, sold seeds, which, with few exceptions, produced worthless plants. Action brought against all the trus tees for breach of warranty Frank W. Stevens, for respt. W. II. Henderson, for applt. Held, That Y. being the only defendant at the time the attempted removal was made, the cause could not be re- The defendants were a religious socimoved under the act of 1866 legally; ety, called Shakers, who had adopted a it was too late to apply under the act of covenant, and among other things, by 1789; also that the claim in the origi- it appointed certain persons trustees of nal action being against all the defend- the temporalities, to transact business. ants upon a joint liability in equity, the These trustees issued declarations of trust as to the manner in which they Lyman Tremain, for applt. Held, That the trustees were a corporation, and analogous to trustees of religious corporations, and that the prop erty of the society was liable for their contracts in the ordinary course of business. Articles of association, though signed by many, may be introduced without proof of execution, where they are produced on a trial, upon notice; and where there are subscribing witnesses they need not be called where the party producing the instrument claims a beneficial interest under it. 66 On an executory contract for sale of large Bristol cabbage" seed, there is an implied warranty that the seed will produce "large Bristol cabbages." Evidence that seed grown on the stock of Bristol cabbage, though fructified by the pollen of red cabbage would be Bristol cabbage seed, held properly excluded. The measure of damage is the loss sustained by the failure of the crop. (Passenger v. Thorburn, 34 N. Y., 364.) Opinion by Learned P. J.; Bockes and Boardman, J.J., concurring. con Held, We have confined our sideration of this case to the questions relating to the charges for recording deeds and those for searches. The fee provided by statute for recording instruments of all kinds is ten cents for each folio (2 R. S. 39, § 30), and the taking any greater fee or reward for such service is a misdemeanor (id. 650, $ 5, 7). It clearly appears that there was an overcharge in this par icular, and the referee properly disallowed the same. Any agreement express or implied involving a violation of the statutes cited would be void. Nor can the statutes be evaded by means of an account stated, for that would be only evidence of an illegal agreement, which the court cannot sanction or tolerate. With respect to the fees for searches the law is not so clear. We agree with the referee that the fees for county Any agreement, express or implied, clerks for scarches, not required in foreto pay a county clerk more than the closure cases, are governed by the FEES OF COUNTY CLERK FOR Curtiss as Executor, &c., applt., v. revised statutes, and not by the Act of" whenever in the revised statutes, or 1840, ch. 342, as was held by the late in any other statute, words importing supreme court in Trustees, &c., v. Van the plural number are used, any single Horn, 3 Den. 171. The title of a statute, though forming no part of it, may be resorted to for the purpose of limiting its application (Bishop v v. Barton, 9 Sup. Ct. 436, and cases cited matter shall be deemed to be included, although distributive words may not be used (1 Edm. St. 71). A requisition to search a single record is within the duty enjoined, and the clerk may Jones v. Sheldon, 50 N. Y., 477). The charge the prescribed fee therefor. For title of the Act of 1840, shews that the he is entitled to charge a similar fee, searching another record, if required, intent of the legislature, in enacting the and so on. Statutes must have a reasonstatue of 1840, was merely to ac-able construction in order to carry out complish a reduction of the expenses of foreclosing mortgages, and its operation should be restricted accordingly. The provision of the revised statutes on this subject, gives to a county clerk "for searching the records in his office, or the records of mortgages deposited in his office by loan-officers and commissioners of loans, or the dockets of judgments for each year five cents." We are of opinion that the just interpretation of this language is that it entitles the clerk to charge for each year embraced in every record, which he is authorised to keep, and which he is required to search. It is his duty to provide different sets of books for the recording of deeds and mortgages, and other papers, documents, &c. (1 R. 756, § 2, 376, § 53). The right to receive a fee for performing any service carries, with it the corresponding duty of performing the service on payment of the fee, and this duty is enjoined upon the clerk by statute (Laws 1847, ch. 470, § 40, 4 Edm. St. 588). The duty is "to search the records when required to do so," and the fee is for "searching the records." In both statutes the term "records" is used distributively. For the act concerning the revised statutes, passed December 10, 1828, § 11, provi des the intention of the legislature. We tended to measure the compensation of are of opinion that the legislature inembraced in his search, but by the the clerk, not by the period of time number of years, whether the same or different years embraced in the separate records searched. In other words that the term year was intended to embrace not a period of time. Such an intenthe space in the records searched, and tion is more plainly expressed in the Act of April 11, 1853, relating to fees of the Clerk of the City and County of New York; but that fact does not shew that any other intention should be inferred from the statute under consideration, or that the latter statute is not plain enough. New York the records of deeds and Besides, in the City of mortgages are kept by the register and not by the clerk. The statute of April 11, 1853, does not apply to the former char. 126, 127, I R. St., 97 id., 112 § 4, officer, or regulate his tees (Kent's 2 id., 286 § 61, 1 Edm. St. 117). that the construction we have put upon It was suggested on the argument by the clerk multiplying the books in the statute might lead to an abuse of it which the records are kept, as, for example, by keeping a record of warranty deeds, another of quit claim deeds and |