before the fire was tortious, and ties had been immorally intimate defendants are liable for its value. for two years before the promise Conceding the contract to be was made, and that when it was that plaintiff consented that the made they were at a house of wheat might be mixed with de- doubtful repute. Plaintiff testifendants' wheat and ground into fied that defendant said that if she flour which should belong to de- would stay all night with him he fendants, then the transaction was would marry her, and that she did a sale, and title passed to defend remain with him all that night. ants. Story Bailm., § 283; 4 On cross-examination she said: Comst., 76; 3 Seld., 433; 3 Mason," He asked me if I was going to 478; 1 Blackf., 353; 2 Comst., 153; bed. I said no; I was afraid. He 8 Greenl., 101; 1 Ohio, 244; Story said I need not be; he would marBailm., § 439. ry me if I would go to bed with him." Q. Did you go to bed with him, under the circumstances? A. Yes, sir. Q. Had the subject of marriage ever been spoken of by either one of you before that time? A. No, sir. Plaintiff's mere consent to the mixture of the wheat was not in consistent with a bailment. Story on Bailm., § 40; 2 Black. Com., 405; 19 N. Y., 334. Ledyard v. Hubbard, 48 Mich., 421; Inelson v. Brown, 53 Iowa, 719; and Sexton v. Graham, Id., 181, distinguished. Judgment and order affirmed, with costs. Opinion by Barker, J.; Smith, P. J., Haight and Bradley, JJ., concur. BREACH OF PROMISE. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Lina Lewis, respt., v. Eugene N. Goetschius, applt. Decided Sept., 1884. A promise of marriage made on condition of illicit cohabitation is without consideration and void. C. Frost, for applt. E. D. Stokem, for respt. Held, That the consideration for the promise being illicit cohabitation and vicious and immoral, is clearly void. al, is clearly void. 1 Parsons on Cont.. 435; 16 Abb., N. S., 26. That defendant is not precluded from raising this question on appeal by the fact that it was not raised on the trial, because it could not have been obviated had it been so raised. The fact was given by plaintiff and was understood. Also held, That in view of the character and conduct of plaintiff and the facts disclosed the damages are plainly excessive. Judgment reversed and new Appeal from judgment in favor trial granted, costs to abide event. of plaintiff. Action for the recovery of damages for breach of promise of mar. riage. It appeared that the par Opinion by Dykman, J.; Pratt, J., concurs; Barnard, P. J., not sitting. WILLS. PROBATE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. In re will of William S. Bogart, deceased. Decided Sept., 1884. The will in question was in the handwriting of testator and contained the usual attestation clause. One of the witnesses testified that all the statutory requirements were complied with; the other testified that he signed at the request of testator, but did not know what the instrument was. Held, That the proof was sufficient to establish the will. Appeal from decree of surrogate admitting the will of Wm. S. Bogart to probate. The will was in the handwriting of testator and contained an attestation clause as follows: "Signed, sealed and published by the said testator to be his testament in the presence of." G. and F. were the witnesses. G. testified that testator told him he wanted him to witness a paper which he had before him; that testator pointed to it and said, "This is my will and that is my signature;" that witness read the attestation clause and put his name under it, and that testator requested him to put down his address. F. testified that when he signed the paper he noticed the signatures of testator and G.; that testator requested him to sign it and he did so, and that he asked him to sign his residence, but that he did not know what the instru ment was. Held, That the proof was sufficient to establish the will. The handwriting of the testator and witnesses are all genuine and fully authenticated, and no circumstances of suspicion appear against the will. The case, therefore, seems an eminently proper one for the application of that wise provision in the Code Civ. Pro., § 2620, that if a subscribing witness has forgotten the occurrence or testifies against the execution of a will the will may be admitted to probate. By that section of the Code the proof of the handwriting of the testator and the subscribing witnesses seems to be given great prominence and importance. In addition to that proof we have here the important fact that the will itself is in the handwriting of the decedent, and that he held it several months after its date before he procured its attestation, so that all opportunity for imposition or misapprehension is effectually removed. Faultless compliance with the statutory requirements is established by one of the witnesses, and it is very significant that when the failing witness F. was called in by testator he laid the paper down as he had done with the former witness G., requested him to sign it, and when he had signed it requested him to add his residence precisely as he made the same request to G. It requires considerable credulity to believe that he did not at the same time publish his will and avow his signature. He knew its importance and necessity, and relied upon F. for the last witness to his will which was to dispose of his property. All the presumptions arising from the presence of the attesta tion clause and the execution of the will under the supervision of a person familiar with the statutory formalities are to be indulged in this case, and on the whole examination we are led safely to the conclusion that the proof is sufficient to establish this will on the trial of an action. Decree affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur. EVIDENCE. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. occasions, that one bull was killed, another hurt, one cow and one heifer were hurt, and that the damages resulting therefrom amounted to $87. He adds that he kept 32 cows; that they were frequently on the track from July 1st to the middle of August, and by defendant's engines and trains were frightened and chased so that they gave less milk. He said, "The effect on my dairy for the season was about 800 or 900 pounds of butter less; the average price this season has been 25 cents per pound; that was my average sale." The justice rendered judgment against defendant for $200 and Charles Hawley, respt., v. The costs. P. T. & B. RR. Co., applt. Decided Oct., 1884. The defendant, being absent from the trial, may insist that plaintiff must establish his case by legal evidence. Plaintiff's cows were injured by defendant's trains and engines, and plaintiff was permitted to state his opinion of his loss in reduced production of butter resulting therefrom, without giving his data for his opinion. Held, Error. Appeal from judgment of County Court, affirming a justice's judg ment. The complaint alleged defendant's failure to keep its fences in repair, and that in consequence thereof plaintiff's cattle were injured, and he was damaged in his dairy business. Defendant did not appear at the trial, and plaintiff proceeded and gave testimony to show that defendant had not kept up its fences through his farm; that his cows and cattle went on to the railroad on several A. A. Van Deusen, for applt. H. C. Kingsbury, for respt. Held, That defendant having been absent at the trial, may insist that plaintiff must establish his case by legal evidence, and may raise the question of competency on any portion of the testimony. 44 Barb., 120. Plaintiff's speculative opinion was not admissible evidence, and without it the evidence is not sufficient to authorize the judgment. 29 N. Y., 9; 43 id., 279; 23 Wend., 425; 8 Hun, 358; 11 id., 549; 54 Wis., 208; S. C., 41 Am., 19; 94 U. S., 469. See also 58 N. Y., 391; Schill v. Brokahus, 80 N. Y., 614; Bagley v. Smith, 10 N. Y., 489, distinguished. And see 58 N. Y., 391. Judgment of County Court and that of the justice reversed. Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ., concur. This was an action on a policy of insurance on a cargo of coal issued by defendant. It was proved that the boat on which was the cargo insured, within twenty-four hours after sailing was found abandoned by master and crew, in a sinking condition, and soon after sank, going down, as sworn to by one witness, "as if she broke in two as she was going down." There was no proof of any storm, or that the boat encountered any extraordinary peril. There was no evidence introduced by plaintiffs directly showing that the vessel was seaworthy, even when she started on her voyage. One witness testified he thought the boat was capable of carrying what coal she had on board. At the close of plaintiffs' case the complaint was, on motion of defendant's counsel, dismissed, on the ground that the proof did not show that the vessel was seaworthy. L. Laflin Kellogg, for applts. In every case of marine insurance there is an implied warranty of seaworthiness on the part of the insured, and if the vessel is not seaworthy the policy does not attach. 1 Arnould on Ins., 652, 667; 2 Parsons on Cont., 5th ed., 575; 57 N. Y., 87, 21 id., 378: 2 Robt., 539. This warranty of seaworthiness is a condition precedent, the performance of which must, to entitle the plaintiff to recover, alleged and proved by him, and if it appears that the vessel shortly before sailing became leaky, unfit to perform the voyage, or sinks without encountering any peril or storm, this is presumptive evidence of unseaworthiness. 2 Arnould on Ins., 1345. be Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Miller, J. All concur. EXCISE. N. Y. COURT OF APPEALS. Cronin, overseer, respt., v. Stoddard, applt. Decided Nov. 25, 1884. The omission to have an excise commissioner's bond approved, at the utmost, affords cause for forfeiture of the office, but does not create a vacancy that can only be effected by a direct proceeding. One B. was elected an excise commissioner but failed to procure approval of his bond. One K. was thereupon elected to fill the supposed vacancy, qualified and acted with the rest of the board in granting license to defendant. B. afterwards procured the approval and acted with the board. Held, That there was no vacancy, and that defendant's license was no protection. This action was brought to recover three penalties for alleged violation by defendant of the excise law in selling beer, &c. The answer was a general denial, and that defendant had a license. It appeared that he had a license to sell beer granted by an acting board of commissioners of excise of the town. It appeared that one B. was elected such a commissioner at the town meeting in 1876 for a term of three years. Laws 1874, Chap. 444. He made and filed a bond, but the same was not approved by the supervisor of the town until after the town meeting in 1877 and after one K. claimed to have been elected as commissioner and after the election of a new supervisor. K., it appeared, was nominated at a town caucus and elected commissioner of excise at the town meeting in 1877 to fill a supposed vacancy caused by the failure of B. to have his bond approved. K. duly qualified by taking the oath and giving the bond required by statute, which was filed in the proper office, and was a member of the board that granted defendant his license. B. met with the board of excise but once, the first Monday in May, 1877. The board, of which K. claimed to be a member met March 10, 1877, and thereafter from time to time down to the commencement of this action. Defendant offered to show that K. was still acting as such commissioner, but the offer was rejected. J. A. Steele, for applt. to defendant furnishes no defense to this action; that B. was a commissioner de jure, and when K. was elected there was no place in which he could act. 10 Paige, 223. That this is so although the official bond of B. was not approved by the supervisor until after K. claims to have been elected. The omission to have it approved would, at the utmost, afford cause for forfeiture of the office, but not create a vacancy. That could only be effected by a direct proceeding for that purpose. 57 N. Y., 399. The legislature uses different language when it intends that an act or omission shall create a vacancy than that used in the statute under consideration. 77 N. Y., 503. One who desires to enjoy the privileges afforded by a license, Laws of 1857, Chap. 628, must see to it that it is granted by one duly authorized or submit to the penalty prescribed. Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed. Opinion by Danforth, J. All concur, except Rapallo, J., ab |