FOURTH DEPARTMENT, JANUARY TERM, 1875. stances attending the shooting, justify the inference that the drunken. bravado of the insured, if it did not directly induce Ward to shoot him, had a tendency to excite and irritate him, and thus provoke him to shoot. The succeeding clause in the condition, which is in the following words: "or in consequence of his having been under the influence of intoxicating drinks," presents the distinction which I desire to draw between the first clause of the condition and those in which it must be shown by the company that the death or injury was the consequence of violating, or not complying with, the condition. To render the company liable under the clause last mentioned, the death or injury must be in consequence of the previous use of liquor. The relation of cause and effect must exist between the use of the liquor and the death or injury. Had the first clause provided that the company should not be liable when the death or injury was in consequence of being under the influence of intoxicating liquor, the relation of cause and effect must be established in order to relieve the insurer from liability. But, while the language which calls for proof of the relation between the use of the liquor and the death or injury, is found in one clause of the condition, it is carefully excluded in the preceding clause, showing, manifestly, that it was not the intention to require the company to prove that death or injury occurred while the insured was under the influence of liquor, or was in consequence of being in that condition. I am therefore of the opinion that the charge as given, and the refusal to charge as requested, were erroneous, and that a new trial. should be granted, costs to abide event. Present MULLIN, P. J., SMITH and GILBERT, JJ. Judgment reversed and new trial granted, costs to abide event. FOURTH DEPARTMENT, JANUARY TERM, 1875. EDWARD RYAN, RESPONDENT, v. WILLIAM H. LEWIS, APPELLANT. The plaintiff brought an action in the Justice's Court, for injuries sustained by his wagon, in a collision with the wagon of the defendant. The defendant denied the complaint. On the adjourned day the defendant asked to amend his answer, by adding thereto, as a defense, that, since issue was joined, an action had been tried in which the present plaintiff was defendant, and this defendant plaintiff, for injury done to the defendant's wagon, in the same collision, and in that action the present plaintiff had set up, by way of counter-claim, the damages sustained by him in such collision, which were the same damages sought to be recovered in the present action. The justice refused to allow the amendment. Held, that the setting up of the new matter was not in the discretion of the justice, but the right so to do was absolute, and the justice had no discretion about it. Evidence that plaintiff paid ten dollars to repair his wagon, and that then it was not worth by fifteen dollars as much as before the injury, held, incompetent as a measure of damages. APPEAL from a judgment of the Monroe County Court, affirming a judgment of a justice of the peace, in favor of the plaintiff. A. J. Wilkin, for the appellant. A. P. Butts, for the respondent. MULLIN, P. J.: This action was commenced in a Justice's Court, to recover of the defendant the damages sustained by him, by reason of the defendant's running against plaintiff's wagon and breaking it with his (defendant's) buggy while they were passing each other on the highway, in the night of the 19th June, 1872. On the return day of the summons, the defendant denied the complaint, and the cause was then adjourned. On the adjourned day the parties appeared, and defendant asked leave to amend his answer by adding thereto as a defense, that since issue was joined in this action, an action had been tried, in which the present defendant was plaintiff, and the present plaintiff was defendant, in which the present defendant complained against the present plaintiff for injury done to the buggy of the present defendant, in the same FOURTH DEPARTMENT, JANUARY TERM, 1875. collision referred to in the complaint of the present plaintiff, in which action the present plaintiff set up, by way of counter-claim, the damages sustained by him in such collision, and which are the same damages sought to be recovered for in this action; that the present plaintiff gave evidence in support of such counter-claim, and the same was submitted to and passed upon by the jury. The plaintiff's counsel objected to the amendment of the answer, and the same was refused by the court. The parties then proceeded to trial, and judgment was entered against the defendant for twentyfive dollars damages, besides costs. Both the plaintiff and defendant could not recover damages for injuries sustained by the collision of the buggies. The one who was free from fault, could alone recover. If both were in fault, neither could recover. The damages sustained by the defendant in the first suit (the plaintiff in this), were not a proper subject of counter-claim in the first action.† The defense offered to be put in by way of amendment, alleges that the plaintiff in this suit set up his damages by way of recoupment; that evidence was given in support of it, and it was submitted to, and passed upon by the jury. The allegation proved, the plaintiff could not maintain an action for such damages, ‡ although if objected to, the counter-claim would have been stricken out of the answer, as not being a proper subject of counter-claim. The truth of the matters set forth in the amendment to the answer, was not denied, and being true, it appeared that the trial in the former action was had since the joinder of issue in this, and the defendant had no opportunity to amend his answer at an earlier day than that on which the application for leave to amend was made. It was as much a legal right to set up the new matter by way of amendment, as it would have been at the joining of issue. Had he been refused leave to set it up then, there could be no doubt but the court on appeal would reverse the judgment. The justice had no discretion about it. It was matter of strict legal right. But, assuming that the allowance of an amendment rests in the discretion of the court, yet the refusal in this case was *Schnaderbeck v. Worth, 8 Abb. Pr., 37. Askins v. Hearns, 3 Abb. Pr., 187; Barhyte v. Hughes, 33 Barb., 320. +1 Wait's L. & P., 945. FOURTH DEPARTMENT, JANUARY TERM, 1875. a gross abuse of the discretion, and the only remedy of the party is by appeal. * A judicial officer who should refuse leave to a party to amend, when it is apparent that the application is made in good faith, and is absolutely necessary for the protection of his rights, ought to be indicted or removed from office. The plaintiff proved that he paid ten dollars for repairs to the buggy, and that it was not then worth as much as before the injury by fifteen dollars. This evidence was objected to, and the objection was overruled, and defendant's counsel excepted. The measure of damages which the plaintiff was entitled to recover, if he recovered anything, was the amount the buggy was lessened in value by reason of the injury. The plaintiff could not cause repairs to be made upon it which did not make it as good as it was before the injury, and then recover in addition, the amount the repairs fell short of making it as valuable as before. There might be a controversy as to the manner in which the work was done, and as to the quality of the materials used. If either was defective, the defendant would be obliged to pay more than the amount that would compensate plaintiff for the injury. The judgment must be reversed. Present MULLIN, P. J., SMITH and GILBERT, JJ. Judgment of County Court, and that of the justice, reversed. ALEXANDER OLCOTT, RESPONDENT, V. JOHN HEERMANS, APPELLANT. A receiver appointed to sue for and collect such debts as are or may become due, and to pay over the proceeds to a third person, has authority to receive money payable under a contract before it becomes due, and, if they be accepted by the third party, may take notes in place of the money. A provision in a contract of sale that it shall become void if assigned without the consent of the vendor, is waived if the vendor accepts the purchase-money from the assignee. *Plato v. Kelly, 16 Abb., 188. FOURTH DEPARTMENT, JANUARY TERM, 1875. ON the 22d July, 1866, Joseph Fellows entered into a contract in writing with Thomas Taylorson, to sell and convey to him certain land, in the village of Corning, in the county of Steuben, on payment of $1,547.32, $100 of which was payable on demand, and the residue, with interest, in seven annual payments, which purchase-money said Taylorson covenanted to pay. The contract contained a condition that it should not be lawful for the purchaser to assign said contract without the consent in writing of the said Fellows. On the 10th October, 1868, said Fellows conveyed, by an instrument in writing, to defendant, his real and personal estate in this State and several other States, in trust to sell the said lands by retail, and convey the same with covenants of warranty binding his heirs to warrant the title, and until sold to rent the same; and to collect all debts owing to him. The avails of said real and personal estate to be paid, distributed and disposed of as follows: 1st. To defray the expenses of the trust. 2d. The residue of said avails to be paid over to said Fellows, or appropriated to his use under his direction during his life. 3d. After his decease, and after the payment of all his just debts and expenses aforesaid, the residue to be distributed as directed in a writing thereafter to be executed, or, in case none should be executed, then the residue to be distributed to his heirs according to the laws of this State. The defendant accepted said trust, and entered upon the duties thereof. On the 15th October, 1868, Fellows executed and delivered an instrument designating the persons to whom he desired the avails of the trust property to be distributed at his death. On the 8th January, 1869, Fellows commenced an action in this court to have said trust set aside, and the property restored to him discharged therefrom; and he obtained an injunction restraining the trustee from interfering with the said property pending said action. One Bostwick was duly appointed receiver in the action, of all property conveyed to the trustee, and he was authorized by the order appointing him, amongst other things, to sue for and collect such debts as are or may become due, and to pay over to the plaintiff such sums of money as shall come to his hands, as such receiver, |