the sale as made was consistent with the decree.

It was objected that the widow of the testator gave to a RR. Co. a right to enter upon the land and maintain its road. It was dated July 19, 1871, but was not recorded until 1882. It did not appear that the partition suit was actually later than the lease, or that the purchaser under the decree had any notice of its existence. That purchaser while furnishing affidavits for the present purchaser does not say that he had such notice. The successor of the RR. Co. was made a defendant in the foreclosure suit and holds a deed from the mortgagor who was also a defendant.

Held, That this objection was not a good one.

Order of General Term, affirming order requiring purchaser to complete purchase, affirmed.

Per curiam opinion. All concur, except Rapallo, J., absent.

FIRE INSURANCE.

ESTOPPEL.

on which such building stands by a title in fee simple, and the interest of the insured be not truly stated in the policy, it shall be void.

And a condition that no officer shall have power to waive any of the provisions of the policy, unless such waiver be endorsed on the policy, will be deemed waived by delivering the policy with knowledge by the agent of the true nature of the insured's title.

Where the insured and the special adjuster of the company entered into a written agreement for the appointment of appraisers to estimate the amount of damage, their award to be binding on both parties, and such award was made. Held, That this amounted to a waiver by the company of its right to rebuild or repair, and the insured was justified in refusing to permit the company to proceed with the building, and that defendant was bound by the award.

Appeal from judgment entered upon the verdict of a jury in favor of plaintiff.

Action upon a policy of insurance against fire, which contained a condition that if the insured was not the sole, absolute, and unconditional owner of the property insured, or if the property be a building, of the land on which such building stands, by a title in fee simple, and the interest of the

TERM. FIFTH DEPT.

Joshua J. Fowle, respt., v. The Springfield Fire Ins. Co., applt.

Decided Oct., 1884.

Where the agent of an insurance company is informed, before issuing the policy, of the

nature and extent of the interest of the in

sured—e. g., a contract for purchase, his knowledge is imputable to the company, and the latter is estopped from relying upon a condition in the policy, that if the in

sured is not the sole, absolute, and unconditional owner of the property insured, or, if the property be a building, of the land

policy, it shall be void. The policy stated the building to be the assured's, but the fact was that he only held a contract for the purchase of the land upon which the building was situated, and had paid a portion of the purchase price. Plaintiff informed the soliciting agent of the nature of his interest, who informed the agent of the company (Madison), who issued and delivered the policy to plaintiff. When the policy was delivered to plaintiff there was a

paper attached at the right-hand corner on the face of the policy which read: "We have decided that the policy should remain in your name." Signed, Signed, "A. Z. Madison."

C. D. Murray, for applt. W. L. Sessions, for respt. Held, That the knowledge of the agent was imputable to the company; that when it accepted the risk it had information that the insured did not own the fee, and it would be presumed that it overlooked the condition, and so had forgotten to express the fact in the policy, or that it had waived the condition, or held itself estopped from setting it up. To presume otherwise would be to impute to defendant a faudulent intent in issuing the policy known by it to be invalid. 68 N. Y., 434; 79 N. Y., 230; 76 N. Y., 415; 67 N. Y., 283.

The policy also contained a condition that no officer should waive any of the provisions of the policy, unless such waiver shall be endorsed on the policy in writing.

Held, That the necessity of such endorsement was waived, and, to prevent fraud and injustice, defendant is estopped from raising the objection. They took plaintiff's money and issued a policy to him with notice of the nature of his title, and defendant ought not to be permitted to gainsay its acts when the effect would be to defraud the insured. It affirmed the policy to be valid without the endorsement, and plaintiff acted upon such affirmation and paid the premium. 14 N. Y., 253.

The policy also provided that the company may repair, restore or replace the property lost or damaged, upon giving notice of such intention within thirty days after receipt of proof of loss. The plaintiff having been informed by the special adjuster of the company that it would not rebuild under any circumstances, plaintiff and the adjuster entered into an agreement in writing for the appointment of appraisers to estimate the amount of damage, their award to be binding on both parties. After the apprisers had proceeded and determined the amount of loss, the company gave notice, within the time required, of its intention to rebuild, which plaintiff refused to permit.

Held, That defendant surrendered its option to rebuild and is bound by the award. 75 N. Y., 7.

Judgment affirmed.

Opinion by Haight, J.; Smith, P. J., and Bradley, J., concur; Barker, J., not sitting.

SUMMARY PROCEEDINGS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Otis Brown, applt., v. Albert Cassady, respt.

Decided Oct., 1884.

In summary proceedings to remove a tenant from possession, instituted before a justice of the peace, no appeal lies for a new trial in the County Court.

Appeal from an order of County Court denying appellant a new trial in that court on appeal from a

final order of a justice of the peace in summary proceedings.

Appellant, as landlord, instituted proceedings before a justice to remove respondent from the demised premises, and, upon a trial had, the jury rendered a verdict in favor of respondent, and the justice made a final order adjudging costs against appellant. The notice of appeal demanded a new trial in the County Court, but the court. held that it was not authorized by the Code.

Daggett & Norton, for applt. E. E. & G. W. Harding, for respt.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Mary J. Combs, applt., v. Benj. F.Bowen, adm'r, et al., respts.

Decided Oct., 1884.

A statement upon which to enter a judgment

without action under the Code is not sufficient, where it merely states and sets out a promissory note, executed by the defendant to the plaintiff as the consideration of the indebtedness. The facts out of which the indebtedness arose should be concisely stated.

The court may, in a proper case, allow such statement to be amended nunc pro tunc so as to sustain the priority of the judgment

entered thereon, as against subsequent valid judgments; but where a note was executed the day before the confession, in settlement Vol. 20.-No. 3a.

of a debt claimed to be due and owing from parent to child for services and for money loaned, and was antedated, and an action by the administrator of a third person was then pending against the parent, upon which judgment was subsequently entered; and such administrator also recovered a judgment for costs against him upon the reference of a disputed claim made by said parent against the estate; Held, That the court properly refused, under the circumstances, to allow such amendment to be made nunc pro tunc, so as to prejudice the rights of the administrator, and that the latter's judgments were entitled to priorty.

Appeal from judgment entered upon decision of the Special Term.

The action was brought by plaintiff as a judgment creditor of Jacob Combs to have a certain deed executed by the latter to James L. Combs adjudged fraudulent and void, and that her judgment may be declared a lien upon the premises conveyed. Plaintiff's judgment was entered upon a statement which read: "This confession of judgment is for a debt justly due to the said Mary J. Combs, and the following is a statement of the facts upon which said confession of judgment is founded: said confession is made for a promissory note executed by me, the said Jacob Combs, dated January 15th, 1875, for the payment one day after the date thereof, to said Mary J. Combs, of $750, which sum, with interest thereon to this date, amounts to the said sum of $798." The note was delivered on the 20th Dec., 1876, and judgment was entered on the following day. Plaintiff was the daughter of Jacob Combs, and claimed that the note was given in settlement of a claim for work and labor performed and

moneys advanced. At the time of the giving of said note, and the confession of said judgment, an action brought by defendant Bowen as administrator of James L. Combs, to recover a debt, was pending against said Jacob Combs, in which a trial was subsequently had, and judgment recovered against the latter. In the meantime Jacob Combs presented a claim against the estate of James L. Combs, which, being disputed, was referred pursuant to the statute, and resulted in a judgment in favor of the administrator for costs.

Bowen, as administrator, moved to set aside and vacate plaintiff's judgment, upon the ground that the confession did not state the facts out of which the debt arose; but the Special Term ordered that he be made a party to the present action, and that the question be determined therein.

Upon the trial the court ruled that said judgment was void, upon the ground that the facts out of which the debt arose were not stated, and that, consequently, plaintiff could not maintain this action. The court also refused to permit the judgment to be amended, nunc pro tunc, so as to give it priority to Bowen's judgments. D. C. Hyde, for applt. J. A. Stull, for respt. Held, No error; that the statement upon which the judgment was entered did not state the facts out of which the debt arose, and should have been set aside on motion. 12 N. Y., 215.

That the court had power in its discretion to permit an amendment

of such judgment nunc pro tunc. 36 N. Y., 631; 55 N. Y., 150; 33 N. Y., 409; 27 N. Y., 300.

But such amendment was, under the circumstances, properly refused, as against Bowen. 21 Barb., 152; 13 How., 21.

Judgment affirmed.

Opinion by Haight, J.; Smith, P. J., Barker and Bradley, JJ., concur.

APPEAL. COSTS.

N. Y. COURT OF APPEALS. Carll, respt., v. Oakley et al., exrs., impl'd, applts.

Decided Oct. 31, 1884.

The acceptance by a party or his attorney of the costs awarded to him by a judgment precludes him from thereafter appealing from said judgment.

Where a judgment directs the payment to defendant of costs "to be adjusted by the clerk," the insertion, of the amount thereof in the judgment is not necessary in order to entitle defendant's attorney to demand them.

This action was commenced by plaintiff, a judgment creditor of a bankrupt corporation, to wind up its affairs. A judgment was entered April 2, 1881, which affected a great number of persons as stockholders and creditors of the corporation. Among others there was a sum due from the appellants here. Notice of the entry and a copy of the judgment were served on their attorney, May 31, 1881. On June 18, 1881, said attorney procured an amendment of the judgment, and on June 25, 1881, appealed therefrom. The appeal was duly noticed for hearing by