which could not be obviated if it had been specified or unless the evidence in its essential nature be incompetent. 87 N. Y., 508. Shipman v. Burrows, 1 Hall, 399; Hallock v. Miller, 2 Barb.,630; Tobias v. Harland, 4 Wend., 537; Linden v. Graham, 1 Duer, 670, distinguished. The judge charged the jury that they could give the plaintiff damages for loss of business. He refused to charge, at defendant's request, that the jury cannot award damages to the plaintiff for loss of business, no special damage having been proven. Held, No error. The judge charged the jury that it was in their discretion to give the plaintiff exemplary damages. Held, No error. When the falseness of a libel is proved, as a general rule, it is sufficient to warrant the jury in giving exemplary damages. 75 N. Y., 604. Plaintiff was allowed to answer under objection this question: "State what efforts you made to regain your business and what opposition or hindrance you met with on account of this libellous article?" firming judgment for plaintiff, affirmed. Opinion by Miller, J. All con cur. POLICE. PENSIONS. N. Y. COURT OF APPEALS. The People ex. rel. Freligh, applt., v. Matsell et al., trustees, respts. Decided Nov. 27, 1883. The original granting of a police pension under Chap. 127, Laws of 1871, and its after payment both rest in the discretion of the trustees; the power of the trustees is not exhausted by the designation of a beneficiary and fixing of the amount of the pension. No pension, whether to members of the force or dismissed officers, can at any time or in any manner be chargeable upon the fund as a matter of right. The relator claims, First, that the Police Life Insurance Fund belongs to the State; that it is accumulated by legislative power and authority from taxes or assessments imposed upon officers and from abandoned and unclaimed property which would otherwise revert to the sovereign; and that the State, therefore, is the grantor of the fund or its income to those who are the beneficiaries. Second, that defendants, in their official capacity as "Police Commissioners of the City," are the trustees of the fund, with power of management and authorized to select and designate the beneficiaries under the restrictions and conditions imposed by the statute, which is their power of attorney. Third, that when they have once Held, No error; that plaintiff having proved that the amount of his receipts had largely diminished since the publication of the alleged libel, he had the right to show that he had endeavored to counteract its effect and in doing this met with opposition which was attributable to the publication of the libel. Judgment of General Term, af- determined the facts and desig nated, in the manner prescribed by the statute, an individual as such beneficiary and fixed the amount of the pension their power is spent and the beneficiary holds under grant from the State and not dependent upon the discretion of the trustees. Chap. 127, Laws of 1871, provides, § 5, as to members of the police force and their widows and children, for whom pensions are provided by $4, that "the Board of Police may, in its discretion, at any time or der such pension or any part thereof to cease." Then follows a provision that nothing in the act itself or in any other act "shall render the granting or payment of | "payment" should rest in the wise discretion of the trustees. There is no reason why a pension of a retired officer should have a firmer hold on the fund than the claims of the maimed or disabled members, or the widow or children of one killed in the service, which are conceded to be wholly subject to the discretion of the board. Order of General Term, affirming order denying application of relator, affirmed. Opinion by Finch, J. All con cur. RAILROADS. TERM. THIRD DEPT. In re The Cortland & Homer Horse RR. Co., respt., v. The Syracuse, Binghamton & N. Y. RR. Co., applt. any pension obligatory upon the N. Y. SUPREME COURT. GENERAL Board of Police, or Board of Trustees, as chargeable as matter of right upon said Police Life Insurance Fund." Section 6 authorizes the Board of Police to dismiss from office "any captain, sergeant, clerk or surgeon," and place him on the pension roll for an amount equal to half-pay. The relator claims that the words "granting or payment" mean one and the same thing. W. Fullerton, for applt. Charles F. Maclean, for respts. Held, That while the first two propositions of the relator are possibly sound, the third is erroneous; that the evident intent of the legislature is that no pension, whether to members of the force or dismissed officers, shall at any time or in any manner be chargeable upon the fund as matter of right, and that both the original "granting" of the pension, and its after Decided Nov., 1883. The consent of abutting owners, required by §18, Art. 3, of the State Constitution, to the construction of a street railroad need not be under seal and need not convey to the railroad company any fee or easement in the street. Appeal from order appointing commissioners to determine the manner in which plaintiff shall cross defendant's track. Under $18, Art. 3, of the State Constitution, no street railroad can be constructed except the consent of one half in value of the property bounded on the street be obtained or the Supreme Court determine that the railroad ought to be constructed. As a compliance with this provision, plaintiff presented a paper, not under seal, in sub FIRE INSURANCE. stance, that the owners consented N. Y. SUPREME COURT. GENERAL to the construction and operation of the horse railroad in the highway and released to the company all right and interest necessary to such construction and operation. Defendant claims that such a con TERM. THIRD DEPT. Augustus Sherman, respt., v. The Mechanics & Traders Fire Ins. Co., applt. Decided Nov., 1883. sent, not under seal, is a nullity, The policy of insurance upon which this reand amounts to no more than a revocable license. Jenney, Brooks, Marshall & Ruger, for applt. Duell & Benedict, for respt. Held, That the consents were sufficient. In this proceeding the damages to owners are not intended by the Constitution, and cannot be taken into consideration. * * covery was had covered their lumber in Appeal from judgment entered on verdict for plaintiff. The action was on an insurance policy on lumber, to recover for loss by fire. The fire commenced in the said mill and extended to the lumber in the yard. The policy contained these clauses in writ in yard, situated near their mill on the Raquette river." "It is understood that no lumber is to be The consent only bears upon the question of the necessity of constructing the road and need not include a release of damages; and it is to be obtained in order that useless and improper roads shalling: "On their lumber in piles not be put into operation. And the remainder of § 18, supra, provides that if the consent of the owners cannot be obtained, the Supreme Court, by commissioners, may determine, and that this determination shall be taken in lieu of a consent. The function of the consent is, therefore, only to determine whether the road should be constructed. Order affirmed, with costs. Opinion by Learned, P. J. ; Boardman and Bockes, JJ., con cur. piled within 75 feet of the mill.” During the life of the policy lumber was temporarily piled within 75 feet of the mill. No lumber was piled within the 75 feet at the time of the fire. S. Brown, for respt. Beardsley, Burdick & Beardsley, for applt. Held, That if it shall be held to be a warranty that lumber shall not be piled within 75 feet of the sawmill the warranty would not apply to every case of piling which might occur within the 75 feet, for that would nullify the policy. Business could not be done in a sawmill without temporarily piling lumber in and about the mill. We must assume then the intent of the agreement was that no lumber should be permanently piled within the 75 feet, and that temporarily placing or piling the lumber within the limits would not work a forfeiture of the policy, because such was not within the contemplation of the parties to the contract. 90 N. Y., 220. Again, the policy by its terms was not to be avoided or rendered void in case of piling lumber within the restricted limits of 75 feet. So long as lumber was permanently piled therein the force and effect of the policy was suspended; but when the lumber was removed beyond the limit it again took effect. 28 Hun, 98; 30 Ohio St., 317. Judgment affirmed, with costs. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. COMMON CARRIERS. NEGLIGENCE. N. Y. COURT OF APPEALS. Canfield et al., applls., v. The B. & O. RR. Co., respt. Decided Oct. 23, 1883. In an action against common carriers for goods alleged to have been abstracted from a box through defendant's negligence, it was shown that the box was delivered to defendant; that more time was taken in transporting it than was necessary; that the consignees kept the box in their basement three days before opening, when the goods were found to be missing, and there was evidence rebutting the inference that they might have been abstracted during those three days. Held, That it was competent for the jury to find that the goods had never been delivered to the consignees at the place of destination. Although the burden of proof of negligence is upon plaintiff in the first instance, yet when the fact of an injury is established and negligence on defendant's part is shown to which such injury can be reasonably imputed as a cause the question whether it was caused by such negligence is a question of fact. This action was brought to recover the value of jewelry and silver-plate which plaintiffs allege they delivered to defendant in a box at Washington to be transported to New York, but which through defendant's negligence had been abstracted from the box while in defendant's custody. It appeared that the box in question, with 17 others, was delivered to defendant on May 13, 1872, and was not delivered to the consignees until May 20, 1873; that said consignees kept said box in the basement of their jewelry store in New York for three days before it was opened and the goods it contained discovered to have been abstracted. There was evidence by plaintiff which tended to rebut the inference that the goods might have been abstracted during the three days the box remained unopened in the custody of the consignees. Plaintiffs also gave evidence that more time was taken in transporting the goods than was usual or customary. Benjamin Estes, for applts. jury to infer not only that the goods proved to have been lost were delivered to defendant at to defendant at Washington, but also that they never had been delivered to the consignees at the place of destination. Judgment of General Term, affirming judgment on verdict for defendant, reversed and new trial ordered. Opinion by Ruger, Ch. J. All concur. CRIMINAL LAW. LARCENY. MALICIOUS MISCHIEF. The Court instructed the jury that they could not find a verdict for plaintiffs except upon the assumption that the goods had been stolen or lost while in defendant's N. Y. SUPREME COURT, GENERAL possession, and that the loss must be found to be attributable exclusively to defendant's negligence in delaying its transportation. Held, Error. For loss of goods entrusted to a common carrier for transportation at the owner's risk, occurring through his gross negligence the liable. common carrier is 14 Barb., 524; 7 Hill, 546; 8 N. Y., 380; 4 Keyes, 113. A carrier does not exempt himself from the consequences of his own negligence unless it is expressly so provided in the contract of carriage. 71 N. Y., 183. When the liability of a party is predicated upon his negligence in the performance of a duty which rests upon him by virtue of a contract or otherwise, the burden is upon the plaintiff to establish the fact of negligence to the satisfaction of the jury; but when the fact of an injury is established and negligence on the part of the defendant is shown to which the loss or injury could be reasonably imputed as a cause, the question as to whether such injury was occasioned by the negligence proved is a question of fact. TERM. THIRD DEPT. The People, respts., v. Orin Woodward, applt. Decided Nov., 1883. To constitute larceny there must be a felonious intent, animo furandi or lucri causa. The malicious killing of a horse is a misde meanor. The evidence tended to show a taking of a horse by defendant to kill him, with a sole desire to injure the owner. Held, That it was incumbent on the Court then to point out to the jury the legal elements in the crime of larceny so as to distinguish it from malicious mischief. Appeal from a judgment of the Saratoga Co. Sessions, convicting defendant of grand larceny. The evidence tended to show that defendant took the horse to kill him, with a sole desire to injure the owner. Defendant's counsel asked the Court to charge the jury that "there must have been a felonious intent, for without such an intent there was no crime; and the felonious intent must have been formed before the taking; and that if before the taking of the horse the intent was to take it and kill it, the crime would not be a felony but an offence under the statute |