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employee of his adversary, who had no au been shown that the man in the thority to bind him by his answers, is such

office had any anthority to act for au error calculated to influence the jury

or bind the defendant by any and prejudice the adversary's case as calls for a reversal of the judgment, although statements or admissions whatever. the question put did not call for the whole Objection overruled and exception conversation, and no objection was made taken. Witness said that the to the admission of the employee's answers against his employer's interest.

foreman refused the barley be

cause the malt house was full; the Appeal from a judgment of the man replied that “they haven't County Court upon the verdict of got much barley in there ; I don't a jury.

doubt but that Manning has stopAction brought to recover the ped him from paying the high price of ninety bushels of barley price they have been paying down delivered, and damages for refus- there; I don't doubt that at all." ing to accept sixty bushels as Defendant's evidence tended to agreed. The answer alleged that show that the contract called for the former was of inferior quality barley of good quality, and that and worth much less than the no more was purchased than the contract price, and denied any amount delivered ; that it was excontract to purchase the latter. amined the next day and found to Plaintiff testified that he made be of inferior quality, not fitted a contract with defendant's fore. for malting, and not worth more man, at his malt house, to sell and than seventy-five cents per bushel. deliver one hundred and fifty The evidence was conflicting as to bushels of barley, at the market the weight, quality and value of price, which should be ascertained the barley delivered and offered to by the quotations in the newspa- be delivered. Verdict for plaintiff pers, which, on the day of sale, for $95.77, being the contract price was $1.04 to $1.05 per bushel. That of the ninety bushels of barley. he delivered ninety bushels, and

H. C. Day, for applt. soon after offered the balance, but the foreman refused to accept,

Giles E. Stilwell, for respt. stating as a reason that the malt Held, That the question was imhonse was full, and thereupon proper, although it did not call for plaintiff stored the barley. That

That the whole conversation, and the afterwards he called at defendant's evidence given was calculated to office and stated to a man there in influence the jury and prejudice charge that he had delivered the case of the defendant. There ninety bushels of barley at the being no proof that the man in malt house, but the foreman re- charge of the office was authorized fused to receive the balance and to hear plaintiff's statements and stated the reason why he refused answer them, they were clearly it. He was then asked what that inadmissible, as defendant could reason was, but defendant object- not be bound by the answers given. ed, on the ground that it had not 'It is fair to assume that the ques

tion was put either for the pur Where the falsity of a statement in an applipose of strengthening plaintiff's

cation filled in by one employed by the in.

surer to collect and report facts and infortestimony that the foreman did

mation as to conditions of risks is set up as a assign such reason, or of getting defence, the insured may show that be the man's declarations into the stated the facts correctly and recover withcase, or for both purposes. The

out demanding a reformation. man's declarations clearly imply

Where a building is insured as unoccupied it

is not necessary for the insured to obtain that the foreman's statement was

the consent of the company that it may reuntrue; that the real reason for the main so, even though it may have been ocrefusal was that the price was too

cupied for a time after the policy issued. high, but not because of the in- Where the company retains the proofs of loss

without objection that timely notice was ferior quality of the barley. It is

not given, and bases its refusal on other no answer that the question did grounds, it waives the objection that the not call for the whole conversation, insured failed to give immediate notice of or that defendant's counsel did

loss, not object to the admission of the Appeal from judgment in favor man's declarations. Plaintiff's of plaintiff, entered on the decision declarations in his own favor were of a referee.

. just as inadmissible as the rest of Action on a policy of fire insurthe conversation, and the whole ance covering a building. Defend. must be treated as in the case by ant claimed, 1, that the policy his own procurement against de never took effect because it was fendant's objection. For the ad untruly stated in the application mission of such evidence all the that the dwelling was then occucases agree that the judgment pied, when in fact it was unoccushould be reversed. 76 N. Y., pied ; 2, that it was not occupied 170-2; 78 id., 503; 54 id., 334 ; at the time of the fire; and 3, that 71 id., 118–135; 12 N. Y. Weekly plaintiff failed to give immediate Digest, 334; 1 N. Y.,519 ; 9 Barb., notice of the loss, as required by 619.

the policy. The application conJudgment reversed and new trial tained the following question and ordered.

answer: “Q. For what is it occuOpinion by Corlett, J.; Smith, pied ? A. Residence.” The policy P. J., Barker and Bradley, JJ., provided that if the dwelling is unconcur.

occupied at the time of effecting the insurance and it is not so stated

in the application, the policy shall FIRE INSURANCE.

be null and void. At that time N.Y. SUPREME COURT. GENERAL the building was unoccupied, and

TERM. FOURTH DEPT. had been for two months. Isaac W. Bennett, respt., v. The

The application was written by

a solicitor who was without power Agricultural Insurance Co. of Wa

to issue, or to alter or modify politertown, applt.

cies after they were issued. The Decided Oct., 1884,

complaint alleged that plaintiff in

formed the solicitor that the house sured may show that he correctly was unoccupied and asked to have stated the facts and recover, withthe contract reformed. The ref out demanding a reformation of eree found, on conflicting evidence, the contract. 78 N. Y., 462 ; 80 that plaintiff so informed the id., 291. solicitor, and decided that the ap The question and the answer re. plication should be reformed so ported and the answer given rethat the answer would read “Not late exclusively to the condition occupied.”

of the building at the date of the A. H. Sawyer, for applt. application. The condition of the D. A. King, for respt.

risk was a fact which the solicitor Held, No error. Under the facts

Under the facts was authorized to ascertain for defound by the referee the rights and fendant by inspection or by quesliabilities of the parties are the tions put to and answers received same as though the application from the insured. This solicitor had correctly stated that the build. had been accustomed, with defending was unoccupied. When a per. ant's approval, to write the answers son employed by an insurer to in applications on which policies collect and report facts and in were subsequently issued, and formation as to condition of risks thus became, by the course of buswrites a report of existing condi- iness, the agent of defendant for tions and of the information re this purpose, and notice to him ceived, which is signed by the in- of this class of facts was notice to sured in good faith, the insurer is defendant, and his mistake was estopped from showing the condi. defendant's mistake. tions or information to have been The policy having taken effect otherwise than reported, even as a valid contract of insurance though the insurer relied upon the upon an unoccupied building the truth of the report and issued a insured was not required by the policy on the faith of it. This terms of the policy to obtain rule rests upon the plain reason " written consent" that it might that the person so employed is the thereafter remain unoccupied. 90 agent of the insurer and is not the N. Y., 16. Nor is the rule changed agent of the insured. The fact that by the fact that after the policy the person so employed is not took effect the dwelling was occuappointed by the insurer for that pied for a time, then vacated and purpose is quite immaterial if the remained unoccupied until burned, insurer knows the person is so act. The second defense is therefore ing and ratifies his acts by issuing unavailing and need not be consid. policies on his reports. 36 N. Y., ered. 550 ; Trans. App., 285 ; 7 Daly, Plaintiff gave notice of the fire 321 ; 74 N. Y., 360; 78 id., 568 ; to the solicitor and signed the 80 id., 281 ; 92 id., 274. When the proofs of loss, which he left with insurer sets up the falsity of a re defendant's general agent. The port so made as a defence the in- ' following day said agent wrote

Vol. 20.-No. 9b.


plaintiff that defendant would not ing the same, or that its highway commispay because the premiums had not

sioners had funds or means of acquiring been paid anů because the house was unoccupied at the time of the Motion by plaintiff for a new fire, and had been for a long time trial on exceptions ordered heard previously, without the written at General Term in the first inconsent of defendant. Thereafter stance. plaintiff verified and served new Action to recover for injuries to proofs of loss. Defendant retained a horse by reason of a defective both proofs of loss without objec- bridge. The complaint alleged tion that timely notice had not that plaintiff was the owner of been given.

a stallion of great value, and that Held, That from these facts the on July 18, 1882, while travelling referee would have been justified on a public highway in the town in finding that the third defense of Hounsfield, without plaintiff's had been waived. 12 N. Y., 81 ; 80 fault, the horse was injured and id., 108. Undisputed facts suffi- disabled by falling through a de. cient to justify such a finding ap- fective bridge on said highway; pearing in the case, this court may that such defective condition of infer, in support of the judgment, the bridge and high way was that the fact was so found. 3 “ caused by the neglect of said deLans., 155 ; 40 N. Y., 248.

fendant, its commissioners of highJudgment affirmed, with costs. ways, officers and servants of its

Opinion by Follett, J.; Merwin and their duties;” that long before and Vann, JJ., concur.

said accident the pathmaster notified defendant's commissioners of

highways that said bridge was unTOWNS. NEGLIGENCE.

safe and unfit for the purposes for PLEADING.

which it was used and built, and

said defendant neglected and reN. Y. SUPREME COURT. GENERAL fused to repair said bridge until TERM. FOURTH DEPT.

after the injury complained of. Thomas W. Eveleigh v. The There was no averment that the Town of Hounsfield.

bridge and highway were defective

at the time of the previous annual Decided Oct., 1884.

town meeting, or in such condi

tion as to call on the commisThe liability of towns is not extended by sioner to avail himself of the

Chap. 700, Laws of 1831, to cases in which the commissioners of highways were not

power to raise additional moneys. liable prior to the passage of that act.

On the trial plaintiff offered to In an action against a town to recover prove all the allegations of the damages for injuries alleged to have been complaint, which the court recaused by the negligence of its agents and fused, and granted a motion to servants in failing to repair a highway or bridge, the complaint must allege that de dismiss the complaint, on the fendant had funds or the means of acquir. I ground that it did not state facts


sufficient to constitute a cause of to the enforcement of any obligaaction “on the ground that the tion on the part of the commiscomplaint contains no allegation sioners to repair. 2 Hill, 619; 29 that the highway commissioners N. Y., 297; 24 Hun, 472. We of the town had funds or had neg. think the liability of the town has lected to take any steps to pro

not been extended to cases in cure them, or any facts showing which the commissioner or comnegligence in that regard."

missioners were not liable prior to H. M. Wilber, for motion. the passage of the statute of 1881. Lansing & Rogers, opposed.

That statute was not remedial: it Held, No error; that the com- simply substituted the town as a plaint should have contained a party defendant in the same cases positive allegation that defendant in which the commissioner or comhad funds or means of acquiring missioners were liable prior to the the same, or that its commis- passage of the statute. 30 Hun, sioners of highways had funds or 168; 6 Hill, 382. means of acquiring the same.

It will not do to presume that a By Chap. 700, Laws of 1881, public officer has neglected his towns were made liable “in cases duty. 5 Hun, 338.

duty. 5 Hun, 338. A commisin which the commissioner sioner of highways has no power commissioners of highways of said to pledge the credit of the town towns are now by law liable there for the purpose of repairing bridges for, instead of such commissioner or highways. 93 N. Y., 397. or commissioners of highways.”' Warren v. Clement, 24 Hun, Before the passage of that statute 472, distinguished. it was held settled that it was the Motion denied and judgment duty of commissioners of high- ordered for defendant, with costs. ways to repair defective highways Opinion by Hardin, P. J., and bridges “after notice of their Boardman and Follett, JJ., concondition with a reasonable and cur. ordinary degree of diligence, if they have sufficient funds in their

TRESPASS. hands or authority to procure such funds, and neglect of this N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT. duty renders them liable to any person injured thereby. 4+ N. Y., William Burk, applt., v. John 113; 24 Hun, 472; 29 N. Y., 297; Quinn, respt. 2 R. S., 7 ed., 1212, § 1. It was

, . also well settled that in an action

In an action of trespass plaintiff made a prima against the commissioners of high

facie case by proving his recent improveways for neglect of duty it was ments and acts upon the land, and defendnecessary to allege and prove the ant's offer to prove that he had been in exexistence of funds


clusive possession of the premises for the

last 19 years was excluded, on the ground specific means provided by the

that the inquiry must be confined to the statute as a condition precedent last year. Held, Error.


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