The fact that a public agent ex- | icy of life insurance upon the life ercises judgment and discretion in of one E. By the terms of the performance of his duties does not policy, the death of the insured by make his action or powers judicial suicide was not a risk assumed by in their character. 68 N. Y., 403. the defendant. Upon the crossThe writ was directed to the examination of one of plaintiffs' Board of Commissioners of the witnesses the proofs of death furDepartment of Public Parks. nished to the company were identified and introduced in evidence by the defendant. Attached to and constituting part of such proofs was a record of a coroner's inquest on the body of the insured in which the verdict of the jury was that his death had been caused by suicide. The plaintiffs rested without producing any evidence to show that his death was not so Held, Error; that the Park Board is a mere department of the city government. Laws 1873, Chap. 335. It is not a corporation and there is no statute authorizing actions to be brought against it by its official name. Order of General Term, denying a motion to quash writ, reversed and writ quashed. Opinion by Rapallo, J. All caused, and the defendant's coun concur. LIFE INSURANCE. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Adolph Goldschmidt et al., applts., v. The Mutual Life Ins. Co., respt. Decided Oct. 8, 1884. sel then moved to dismiss the complaint because it appeared prima facie that the deceased came to his death by his own hand. The plaintiffs' counsel then objected to the proofs of death as evidence in chief, and to their admission as evidence for any other purpose than as bearing upon the question of their proper service as required by the rules of the company. The court overruled the plaintiffs' objections, and ruled that the proofs were in evidence for the purposes of the motion, and also ruled that the affirmative was with the plaintiffs to prove the cause of the death of the insured, and that, unless they gave such proof, that the complaint should be dismissed. The plaintiffs gave no further proof, and the court thereupon dismissed the complaint and Appeal from a judgment entered the plaintiffs excepted to such on a verdict directed by the court. dismissal and to the various rulThis was an action upon a pol-ings leading to that result. In an action upon a policy of life insurance which by its terms declares that the death of the insured by suicide is not a risk assumed by the insurance company, when, upon the cross-examination of one of the plaintiffs' witnesses, the proofs of death furnished to the company are introduced in evidence by it, and such proofs show that the insured was held to have committed suicide, at a coroner's inquest held upon his body, a prima facie defence is established, and the complaint will be dismissed, unless the plaintiff shows that death resulted from some other cause. Subsequently, however, upon the offer of defendant to allow judgment to be entered for the amount of premiums paid upon the policy which the company covenanted to return in such cases, the court directed a verdict for that amount, and to such direction the plaintiffs excepted. William G. Wilson, for applt. Held, That the proofs of death furnished the company were prima facie evidence that the insured died by suicide, and, if the plaintiffs had desired to overcome the prima facie case made out by them, they should have shown that the insured did not die by his own hand. 22 Wall., 32; 95 U. S., 380, 390. Judgment affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurred. MORTGAGES. upon and operate the road and apply the proceeds to the payment of the principal and interest of the bonds or to exercise a power of sale with respect to the entire property covered by the mortgage in case of a default in payment of principal, or of interest continuing for twelve months; and it was also provided after a twelve months' default in the payment of interest, the principal should fall due. The company defaulted in the payment of a semiannual instalment of interest, and after the expiration of about three months the trustee brought an action to foreclose the mortgage, asking for a sale of the whole property and for the payment of the principal of the debt. Upon demurrer, Held, That such an action could be maintained. Appeal from an interlocutory judgment overruling demurrer to the complaint. This action was brought to foreclose a mortgage made by the N. Y. City and Northern RR. to plaintiff, as trustee, to secure the payment of the principal of its bonds and the interest upon them payable in semiannual instalments. By the terms of the mortgage the railroad company was entitled to remain N. Y. SUPREME COURT. GENERAL in possession of the mortgaged TERM. FIRST DEPT. The Central Trust Co. of N Y., trustee, respt., v. The N. Y. City & Northern RR. Co, applt. Decided Oct. 8, 1884. The N. Y. City and Northern RR Co. mortgaged its road, franchises, &c., to the Central Trust Co. of N. Y., to secure the payment of the principal of its bonds and the interest upon them due semi-annually. The railroad company was entitled by the terms of the mortgage to remain in possession of the mortgaged property until some default should be made in the payment of the principal or interest on its bonds, or some part thereof; and, by a separate proviso, the trustee was given the right to enter property until some default in the payment of the principal or interest of its bonds or of some part thereof. It was further provided that in case of a default in payment of principal or interest continuing for twelve months, the trustee might enter upon and operate the road and apply the net proceeds to the payment of the debt or interest, or that it might exercise a power of sale with respect to the entire property covered by the mortgage, and also, that in case of a twelve months' default in the payment of interest the principal should fall due. The railroad company defaulted in the payment of the interest due on May 1st, 1882, and in September, 1882, the plaintiff commenced this action for the foreclosure of the mortgage, asking for the sale of the whole property covered by it, and for a provision to secure payment of the principal of the debt. The defendant demurred to the complaint as presenting a cause of action, upon the ground that no action of foreclosure could be brought until the expiration of twelve months after a default in the payment of interest. James C. Carter, for applts. Held, That one of the purposes for which the mortgage by its terms was declared to have been given was to "secure the due payment of the principal of the bonds and the interest to accrue thereon," and the right to enforce the mortgage by foreclosure therefore arose as soon as such interest had accrued and default had been made in its payment, for in no other manner could it be made available as a security for the due payment of the interest. That the clauses providing for an entry upon and the use or sale of the mortgaged property by the trustee, after a continued default for the period of twelve months, were designed to affect and qualify only this right of entry, possession and sale, and that it was not provided in the mortgage, nor was it to be implied from any of the language made use of that the credi Vol. 20.-No. 5. tors were to be deprived of the right of making the security available to themselves in any other way than by such entry, use, or sale, upon a default in the payment of the interest when due. That neither did the mortgage provide for the continued possession of the mortgaged property by the mortgagor for this intervening period of twelve months, but on the contrary it was provided that the absolute right of the mortgagor to the possession of the mortgaged property should continue no longer than it should pay the principal or interest of its bonds when due, and it is clearly to be implied from such provision that in case of a default in such payment, the right of the company to such possession should cease and determine, and that, with the other provisions, entitled the holder of the bonds to the appropriation and sale of the property by means of judicial proceedings. 106 U. S., 47; 7 Paige, 208, 210-11. That the entire mortgaged property may be sold under a judgment obtained in an action for the foreclosure of the mortgage even where only a part of the mortgage debt may have matured and become payable. 94 U. S., 463; 5 Duer, 675, distinguished. Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurred. COSTS. EXTRA ALLOW. ANCE. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Morris J. Meyer, applt., v. Henry S. Rasquin, respt. Decided Oct. 31, 1884. In an action for the removal of an assignee for the benefit of creditors and the appointment of a receiver of the assigned property and in which an answer was interposed but which was discontinued before trial upon payment of costs, upon the application of the plaintiff, Held That there was no basis upon which a computation for an allow ance could be properly made and that the court had no power to make an allowance. Appeal from an order granting an extra allowance. This action was brought under a general assignment to remove the defendant as the assignee of one P. for the benefit of his creditors for alleged misconduct as such assignee, and to appoint a receiver of the assigned property. An answer was interposed, but before trial the action was discontinued upon the application of plaintiff upon payment of costs and an order was subsequently made granting the defendant an allowance of five per cent. upon the value of the assigned property. J. J. Adams, for applt. G. W. Wingate, for respt. Held, That there was no basis upon which a computation for an allowance could be properly made and that the court below therefore had no power to make the allowance. EQUITABLE OWNERSHIP. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. William Smyth, as acting superintendent of insurance, &c., v. Edward Rowe et al. Decided Oct. 8, 1884. The grantee named in a deed the description in which erroneously omits a portion of the premises intended to be conveyed is the equitable owner of the portion of the premises so omitted, and the sale of such prem ises upon the foreclosure of a mortgage upon them, executed by such equitable owner, conveys to the purchaser upon such sale his equitable title and also a legal title acquired by him subsequently to the execution of the mortgage. Appeal from an order of the Special Term compelling a purchaser upon a foreclosure sale to complete his purchase. In 1850 the National Mechanics' Banking Association was the owner in fee of the premises described in the mortgage foreclosed in this action. The premises then ran to the centre of the Bloomingdale Road. The Mechanics' Banking Association conveyed the premises to one C., bounding the same by the exterior instead of the centre line of the Bloomingdale Road. Subsequently the premises were conveyed to R. and B., and thereafter that portion of the Bloomingdale Road originally included in the premises owned by the Mechanics' Banking Association was no longer used as a public highway. Chap. 697, Laws of 1867, and thereafter R. and B. execu Order reversed and motion ted a mortgage covering that pordenied. Opinion per curiam. tion of the premises as well as the remainder thereof. After the execution of such mortgage they applied to the Banking Association for a deed of the land formerly included in the Bloomingdale Road, and thereupon a resolution was passed by the Board of Directors directing the president and cashier to execute a quitclaim deed of said premises to R. and B., and stating such lands were intended to have been conveyed to C. Subsequently a quitclaim deed of said premises was executed by the officers of the bank and delivered to R. and B. The mortgage given by R. and B. was foreclosed in this action and the purchaser, upon the foreclosure sale, refused to complete his purchase, upon the ground that R. and B. were not the owners of the land formerly included in the Bloomingdale Road at the time of the execution of the mortgage by them. Edward Mitchell, for plff. Hoffman Miller, for purchaser. Held, That although a mortgage, like a quitclaim deed operates only upon the present right of the party executing it and an after-acquired right or title does not inure to the benefit of mortgagee or purchaser on foreclosure, 23 N. Y., 532, still, since it was the intention of the bank to have included the lands in dispute in its deed to C., and for the purpose of completing that which was the understanding and intention of the parties, the quitclaim deed was executed to R. and B., they were the equitable owners of the lands in question at the time of executing the mortgage, and the foreclosure and sale trans ferred to the purchaser their equitable title as well as their subse67 quently acquired legal title. N. Y., 437. Order affirmed. Opinion by Haight, J.; Davis, P. J., and Daniels, J., concur. EVIDENCE. RECEIPT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Levi Maxfield, respt., v. George W. Terry, applt. Decided Oct., 1884. The giving of a receipt which specifies a particular claim only, raises no legal presumption against the existence of another claim. Appeal from judgment on verdict at Circuit and from order denying motion for new trial. Action to recover for board and lodging of two infant children of G. T., deceased, alleged to have been furnished prior to 1879 by plaintiff at the request of defendant and upon his promise to pay Defendant put in for the same. evidence a receipt given by plaintiff in the following words: "HorRenellsville, March 31, 1879. ceived of G. W. Terry one hundred dollars, being the full amount for work up to date, leaving a balance due G. W. Terry for 272 16-32 of oats, 40c., eleven ($11.00) dollars, to be paid in oats in 1879." (Signed.) "Levi Maxfield." J. H. & G. W. Stevens, for applt. Eli Soule, for respt. Held, That unless a receipt is in full for all claims it cannot give rise to the presumption that at the |