lor, an insolvent debtor, to set aside a conveyance of real estate made by said Taylor to his mother, as fraudulent, or to have the same declared to be a mortgage; and also to set aside as fraudulent a release executed by Taylor to her, growing out of her relations to him as guardian and trustee, and to secure an accounting by her of her trust as his guardian and trustee from 1867 to the time of the commencement of the action, claiming that she had never accounted to him. By the judgment which was entered it was declared that the deed in question should not be set aside, but should be regarded as a mortgage; that the release should not be set aside;

ter having been declared, could not make the refusal to set it aside as fraudulent the basis of an ap peal, and that by failing to appeal from the judgment generally, and accepting the payment of the costs, waived the right to assail the parts of the judgment considered objectionable, as they were depend ant upon each other in main.

That, moreover, if this is not correct, the judgment was right upon the merits.

Judgment affirmed.

Opinion by Brady, J.; Daniels, J., concurred; Davis, P. J., concurred on the merits only.

INSURANCE.

which had been made by Taylor with his mother, was fair and proper, and should not be opened or set aside, and awarded costs to the plaintiff. The plaintiff accepted the judgment that the conveyance was in fact a mortgage, and the beneficial results to the creditors whom he represented, and received payment of the costs, but appealed from those parts of the judgment which were unfavorable to him.

Edward S. Hatch, for applt. Josiah T. Mareau, for respts. Held, That if a party elects to avail himself of such parts of a judgment as are favorable to him, he cannot appeal from those which are adverse. 46 N. Y., 556; 4 Wait's Pr., 215. That the plaintiff having asked that the conveyance be set aside, or be regarded as a mortgage, and the lat

TERM. FIRST DEPT.

The National Filtering Oil Co., respt., v. The Citizens' Insurance Company, of Missouri, applt.

Decided Jan. 9, 1884.

When one written instrument contains a reference to another as the basis or foundation on which the latter has been made, the first is to be regarded as so far included as to entitle it to be examined and considered in order to discover the intention and rights of the parties. When, by an agreement between two parties, the second party is to pay the first a certain royalty on every gallon of oil in filtering, which a patent process is used, and such royalties are not to be less than $3,000 per year, and a policy of insurance on such royalties recited that, whereas the insured is to receive certain royalties which are guaranteed to amount to $250 per month, the company will make good any diminu tion in such royalties caused by the injury of the factory by fire, such insurance will be held to apply to a diminution in the amount of royalties over and above the guaranteed sum of $250.

The right to receive royalties on goods manufactured by certain patented machinery,

which royalties may be diminished by the

destruction or injury of the manufactory

by fire, is insurable, even though the person entitled to receive such royalties has no interest in the manufactory or machinery so destroyed or injured.

In an action on such a policy of insurance to recover for a diminution of royalties caused by a fire in the factory it is no defense that, if there had been no fire, the same diminu

tion would have occurred from some other

cause.

Appeal from a judgment recovered on trial before the court.

By an agreement between the plaintiff and the firm of Ellis & Co., the latter was given the right to use certain patented inventions belonging to plaintiff in filtering oil, and, in consideration of this right, they were to pay the plaintiff royalties consisting of a certain sum on each gallon of oil in which the patented process should be used, and which they guaranteed should not be less than $3,000 per year. A policy of fire insurance given by the defendant to the plaintiff recited, that, whereas the plaintiff was entitled to receive certain royalties from Ellis & Co., which were guaranteed to amount to $250 per month, defendant would make good to the insured any diminution in such royalties as might be caused by damage by fire to the premises occupied by said Ellis & Co. during the restoration of such premises to their former condition.

This action was brought upon this policy of fire insurance, and, to maintain it, proof was given, showing that the premises of Ellis & Co. had been damaged by fire,

and that the amount of royalties received by the plaintiff while the premises continued so damaged was thereby materially diminished in consequence of the inability of Ellis & Co. to proceed with the business of filtering oil. But, during this period of time, Ellis & Co. did pay to the plaintiff an amount exceeding the $250 per month guaranteed by the agreement, and, for that reason, it was urged that the plaintiff had failed to establish a loss under the language of the policy. It was also urged that this policy was a wagering contract and was void, and the defendant also offered to prove as a defense that, even if there had been no fire, there would have been the same diminution of royalties during the same period by reason of the fact that Ellis & Co. intended to have ceased work during that period to make some alterations in their factory. This proof was excluded by the court.

George W. Parsons, for applt. Coudert Brothers, for respt. Held, That, when one written instrument contains a reference to another as the basis or foundation on which the latter has been made, the first is to be regarded as so far included as to entitle it to be examined and considered in order to discover the intention and right of the parties. 10 Wend., 219, 252; 1 Com., 186, 192; 8 N. Y., 478, 482-3; 4 Bos., 520.

That by considering and construing the language of the contract with that of the policy, it appears that Ellis & Co. were absolutely bound to pay $250 per

month to the plaintiff, and that it could not be deprived of that amount by any damage to the works of Ellis & Co., and that the plaintiff's contingent right was limited to the amount of royalties which might become due to it beyond $250 per month, and which depended upon the extent of the business of Ellis & Co., which might be diminished by injury to their premises, and that it was to meet that contingency that this policy was probably taken, and that the more rational construction to be placed upon it was that it was intended to be an indemnity to the plaintiff for the actual loss of royalties which it might sustain by reason of the failure of Ellis & Co. to proceed with their business, in case that failure should be caused by fire, and that the phrase, "said royalties," was intended to refer to and include all the royalties reserved by the agreement.

That this was not a wager policy. That its intent was to indemnify the plaintiff for a loss which it might sustain by the injury or destruction of the premises occupied by Ellis & Co. That, while the plaintiff was the owner of no interest in, and had no lien upon the property itself, its right to royalties beyond the sum of $3,000 per year was dependent upon the uninterrupted business of Ellis & Co. That if by a fire that business should be wholly or partially sus pended, then the right of the plaintiff to its royalties, over the stipulated amount, might for the time be correspondingly diminished. That its right, so far, de

pended upon the exemption of the premises of Ellis & Co. from dis ability caused by fire, and that created an insurable interest in the plaintiff. 62 N. Y., 47, 54; 76 id., 436. That plaintiff's right to the royalties was a right of property, 86 N. Y., 87, and as much entitled to protection by insurance against the contingency of fire as any other property would be.

That the fact that an equal diminution in the royalties might have been produced by another cause subsequently arising, if the fire itself had not occurred, could form no legal answer to the plaintiff's right to indemnity under the terms of the policy.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

TAXES. EXEMPTION.

N. Y. COURT OF APPEALS. Temple Grove Seminary, respt., v. Cramer, rec'r, et al., applts.

Decided Jan. 20, 1885.

An incorporated seminary of learning does not waive or forfeit the exemption from taxation given by the statute by leasing the premises during the usual summer va cation for a boarding house.

Unless the term of a lessse of such premises is outstanding when the tax is imposed and the sale can take effect on his interest in the unexpired term no tax can be imposed on the premises.

Affirming S. C., 14 W. Dig., 123.

This action was brought to restrain the sale for taxes of certain real estate belonging to plaintiff on which are extensive school buildings, and to have the said

of one crime or proof of another it is this. The proof to establish the main charge consisted of very imperfect and unsatisfactory identification of the blankets alleged to have been stolen, and defendant was entitled to all the doubts left by the testimony unprejudiced by inadmissible damaging evidence. Instead of that he was confronted with proof of other distinct crimes which he could not

answer because he had no notifica

tion of its production and which may have been very persuasive with the jury.

At the commencement of all criminal prosecutions the accused person starts with the presumption of his innocence and his guilt is to be established by proof of the commission of the crime charged against him. If proof cannot be adduced, then he continues innocent in the eye of the law and must depart unpunished.

Conviction reversed and new trial granted.

Opinion by Dykman, J.; Barnard, P. J. and Pratt J., concur.

N. Y. COURT OF APPEALS.

Bucher, applt., v. The N. Y. C.

& H. R. RR. Co., respt.

Decided Jan. 20, 1885.

that the evidence tended to show negli gence on the part of defendant, and that under the circumstances plaintiff should not be held to the most rigid accountability for his actions.

This action was brought to recover damages alleged to have resulted from injuries sustained by plaintiff while leaving one of

defendant's cars on which he was a passenger. It appeared that the train on which plaintiff was traveling did not, as was customary, stop at the station for which plaintiff had purchased a ticket, but for some unexplained reason, on arriving there merely slowed up. Language was used by the conductor of the train, which authorized plaintiff to conclude that he had a right to get off, and could do

so under the conductor's direction.

There was also evidence which tended to show that a signal was given by the conductor to put the train in motion while plaintiff was getting off, and without warning to him. At the close of plaintiff's testimony a motion for a non-suit was made on the ground that no negligence was shown on the part of defendant, and that plaintiff's negligence contributed to the injury. This motion was granted, and an exception taken.

Frank R. Perkins for applt.
George C. Greene for respt.
Held, that the Court erred in

that the train on which he was a passenger did not stop at the station, but slowed up, that he was induced by the conductor's statements to get off, and that while he was doing so, and without warning him, the conductor gave a signal to start up the train. Held, that a non-suit was improper;

that the case should have been submitted to the jury both as to the negligence of the defendant and the contributory negligence of the plaintiff.

It is culpable negligence on