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which could not be obviated if it | firming judgment for plaintiff, had been specified or unless the affirmed, evidence in its essential nature be Opinion by Miller, J. All conincompetent. 87 N. Y., 508.

Shipman v. Burrows, 1 Hall, 399; Hallock v. Miller, 2 Barb.,630;

POLICE. PENSIONS.
Tobias v. Harland, 4 Wend., 537;
Linden v. Graham, 1 Duer, 670,

N. Y. COURT OF APPEALS. distinguished.

The People ex. rel. Freligh, appll., The judge charged the jury that

v. Matsell et al., trustees, respts. they could give the plaintiff damages for loss of business. He re. Decided Nov. 27, 1883. fused to charge, at defendant's re

The original granting of a police pension quest, that the jury cannot award

under Chap. 127, Laws of 1871, and its damages to the plaintiff for loss of after payment both rest in the discretion business, no special damage hav. of the trustees ; the power of the trustees ing been proven.

is not exhausted by the designation of a

beneficiary and fixing of the amount of the Held, No error.

pension. The judge charged the jury that | No pension, whether to members of the force it was in their discretion to give or dismissed officers, can at any time or in the plaintiff exemplary damages.

any manner be chargeable upon the fund

as a matter of right. Held, No error.

When the falseness of a libel is The relator claims, First, that proved, as a general rule, it is suf- the Police Life Insurance Fund ficient to warrant the jury in giv- belongs to the State; that it is acing exemplary damages. 75 N. Y., cumulated by legislative power 604.

and authority from taxes or assessPlaintiff was allowed to answer ments imposed upon officers and under objection this question : from abandoned and unclaimed “State what efforts you made to property which would otherwise regain your business and what op- revert to the sovereign; and that position or hindrance you met the State, therefore, is the grantor with on account of this libellons of the fund or its income to those article?''

who are the beneficiaries. Second, Held, No error; that plaintiff that defendants, in their official having proved that the amount of capacity as “ Police Commis. his receipts had largely diminished sioners of the City,'' are the trussince the publication of the alleged tees of the fund, with power of libel, he had the right to show management and authorized to sethat he had endeavored to counter- lect and designate the beneficiaries act its effect and in doing this under the restrictions and conmet with opposition which was ditions imposed by the statute, attributable to the publication of which is their power of attorney. the libel.

Third, that when they have once Judgment of General Term, af- i determined the facts and desig

nated, in the manner prescribed by payment” should rest in the wise the statute, an individual as such discretion of the trustees. beneficiary and fixed the amount There is no reason why a penof the pension their power is spent sion of a retired officer should and the beneficiary holds under a have a firmer hold on the fund grant from the State and not de-| than the claims of the maimed or pendent upon the discretion of the disabled members, or the widow trustees. Chap. 127, Laws of or children of one killed in the 1871, provides, $ 5, as to members service, which are conceded to be of the police force and their wholly subject to the discretion of widows and children, for whom the board. pensions are provided by S4, Order of General Term, affirmthat "the Board of Police may, ing order denying application of in its discretion, at any time or relator, affirmed. der such pension or any part there- Opinion by Finch, J. All conof to cease. Then follows a

cur. provision that nothing in the act itself or in any other act “shall

RAILROADS. render the granting or payment of any pension obligatory upon the N. Y. SUPREME COURT. GENERAL Board of Police, or Board of Trus

Term. THIRD DEPT. tees, as chargeable as matter of

In re The Cortland & Homer right upon said Police Life Insurance Fund.” Section 6 authorizes Horse RR. Co., respt., v. The Sythe Board of Police to dismiss racuse, Binghamton & N. Y.RR. from office" any captain, sergeant,

,

Co., applt. clerk or surgeon,” and place him Decided Nov., 1883. on the pension roll for an amount equal to half-pay.

The relator

The consent of abutting owners, required by

$ 18, Art. 3, of the State Constitution, to claims that the words "granting the construction of a street railroad need or payment mean one and the not be under seal and need not convey to same thing:

the railroad company any fee or easement W. Fullerton, for applt. Charles F. Maclean, for respts. Appeal from order appointing

Held, That while the first two commissioners to determine the propositions of the relator are pos. manner in which plaintiff shall sibly sound, the third is erroneous; cross defendant's track. Under that the evident intent of the legis- $ 18, Art. 3, of the State Constitulature is that no pension, whether tion, no street railroad can be conto members of the force or dis- structed except the consent of one missed officers, shall at any time half in value of the property or in any manner be chargeable bounded on the street be obtained upon the fund as matter of right, or the Supreme Court determine and that both the original “grant that the railroad ought to be coning of the pension, and its after 'structed. As a compliance with

in the street.

this provision, plaintiff presented FIRE INSURANCE. a paper, not under seal, in substance, that the owners consented N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT. to the construction and operation of the horse railroad in the high

Augustus Sherman, respt., v. way and released to the company The Mechanics & Traders Fire all right and interest necessary to Ins. Co., applt. such construction and operation.

Decided Nov., 1883. Defendant claims that such a consent, not under seal, is a nullity, The policy of insurance upon which this reand amounts to no more than a covery was had covered “ their lumber in

piles in yard situated near their mill on the revocable license.

Raquette River.

It is understood Jenney, Brooks, Marshall & Ru- that no lumber is to be piled within 75 feet

of the mill.” lled, That the intent of the ger, for applt.

agreement was that no lumber should be Duell & Benedict, for respt.

permanently piled within the 75 feet and

that temporary placing or piling the lumHeld, That the consents were ber within the limit would not work a forsufficient. In this proceeding the feiture of the policy. damages to owners are not intend

Appeal from judgment entered ed by the Constitution, and can

on verdict for plaintiff. not be taken into consideration.

The action was on an insurance The consent only bears upon the policy on lumber, to recover for question of the necessity of con- loss by fire. The fire commenced structing the road and need not in the said mill and extended to include a release of damages; and the lumber in the yard. The polit is to be obtained in order that icy contained these clauses in writuseless and improper roads shall ing: “On their lumber in piles not be put into operation. And the in yard, situated near their mill on remainder of $ 18, supra, provides the Raquette river." It is unthat if the consent of the owners

derstood that no lumber is to be cannot be obtained, the Supreme piled within 75 feet of the mill." Court, by commissioners, may de- During the life of the policy lumtermine, and that this determina- ber was temporarily piled within tion shall be taken in lieu of a con

75 feet of the mill. No lumber sent. The function of the consent

was piled within the 75 feet at the is, therefore, only to determine time of the fire. whether the road should be con

S. Brown, for respt. structed. Order affirmed, with costs.

Beardsley, Burdick & BeardsOpinion by Learned, P. J.; ley, for applt. Boardman and Bockes, JJ., con- Held, That ifit 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 evidence rebutting the inference that they that would nullify the policy.

cur.

might have been abstracted during those

three days. Held, That it was competent Business could not be done in

for the jury to find that the goods had a sawmill without temporarily pil- never been delivered to the consignees at ing lumber in and about the mill. the place of destination. We must assume then the intent

Although the burden of proof of negligence

is upon plaintiff in the first instance, yet of the agreement was that no lum

when the fact of an injury is established ber should be permanently piled and negligence on defendant's part is shown within the 75 feet, and that tem

to which such injury can be reasonably porarily placing or piling the lum

imputed as a cause the question whether

it was caused by such negligence is a ques. ber within the limits would not

tion of fact. work a forfeiture of the policy, because such was not within the con- This action was brought to retemplation of the parties to the cover the value of jewelry and contract. 90 N. Y., 220. Again, silver-plate which plaintiffs althe policy by its terms was not to lege they delivered to defendant be avoided or rendered void in in a box at Washington to be case of piling lumber within the transported to New York, but restricted limits of 75 feet. So

which through defendant's neglilong as lumber was permanently gence had been abstracted from piled therein the force and effect the box while in defendant's cusof the policy was suspended; but tody. It appeared thať the box when the lumber was removed be- in question, with 17 others, was yond the limit it again took effect.

delivered to defendant on May 13, 28 Hun, 98 ; 30 Ohio St., 317.

1872, and was not delivered to the Judgment affirmed, with costs. consignees until May 20, 1873; Opinion by

by Boardman, J.; that said consignees kept said box Learned, P. J., and Bockes, J., in the basement of their jewelry concur.

store in New York for three days before it was opened and the goods

it contained discovered to bave COMMON CARRIERS. NEGLI

been abstracted. There was eviGENCE.

dence by plaintiff which tended N. Y. COURT OF APPEALS.

to rebut the inference that the Canfield et al., applls., v. The goods might have been abstracted B. &0. RR. Co., respt.

during the tlıree days the box re

mained unopened in the custody Decided Oct. 23, 1883.

of the consignees. Plaintiffs also In an action against common carriers for

gave evidence that more time was
goods alleged to have been abstracted from
a box through defendant's negligence, it taken in transporting the goods
was shown that the box was delivered to de- than was usual or customary.
fendant; that more time was taken in trans- Benjamin Estes, for applts.
porting it than was necessary ; that the

Austen G. Fox, for respt.
consignees kept the box in their basement
three days before opening, when the goods

Held, That upon the evidence were found to be missing, and there was it was entirely competent for the

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jury to infer not only that the Judgment of General Term, afgoods proved to have been lost firming judgment on verdict for were delivered to defendant at defendant, reversed and new trial Washington, but also that they ordered. never had been delivered to the

Opinion by Ruger, Ch. J. All consignees at the place of destina concur. tion.

The Court instructed the jury that they could not find a verdict CRIMINAL LAW. LARCENY. for plaintiffs except upon the as- MALICIOUS MISCHIEF. sumption that the goods had been stolen or lost while in defendant's N. Y. SUPREME COURT, GENERAL

TERM. THIRD DEPT. possession, and that the loss must be found to be attributable exclu

The People, respts., v.

Orin sively to defendant's negligence in Woodward, applt. delaying its transportation. Held, Error.

Decided Nov., 1883. For loss of goods entrusted to a

To constitute larceny there must be a feloncommon carrier for transportation

ious intent, animo furandi or lucri caus at the owner's risk, occurring The malicious killing of a horse is a misdethrongh his gross negligence the common carrier is liable. 14

The evidence tended to show a taking of a

horse by defendant to kill him, with a sole Barb., 524; 7 Hill, 546; 8 N. Y.,

desire to injure the owner, Held, That it 380; 4 Keyes, 113.

was incumbent on the Court then to point A carrier does not exempt him- out to the jury the legal elements in the self from the consequences of his

crime of larceny so as to distinguish it from

malicious mischief. own negligence unless it is expressly so provided in the contract Appeal from a judgment of the of carriage. 71 N. Y., 183.

Saratoga Co. Sessions, convicting When the liability of a party defendant of grand larceny. The is predicated upon his negligence evidence tended to show that dein the performance of a duty fendant took the horse to kill him, which rests upon him by virtue of with a sole desire to injure the a contract or otherwise, the burden

owner. is upon the plaintiff to establish Defendant's counsel asked the the fact of negligence to the sat- Court to charge the jury that isfaction of the jury; but when "there must have been a felonious the fact of an injury is established intent, for without such an intent and negligence on the part of the there was no crime; and the felondefendant is shown to which the lious intent must have been formed loss or injury could be reasonably before the taking; and that if beimputed as a cause, the question fore the taking of the horse the as to whether such injury was oc- intent was to take it and kill it, casioned by the negligence proved the crime would not be a felony is a question of fact.

but an offence under the statute

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