Judgment affirmed, with costs. Opinion by Dykman, J.; Pratt, J., concurs. TRESPASS. PLEADING. DEED. N.Y. SUPREME COURT. GENERAL Marie Hussner, applt., v. The A complaint alleged that plaintiff was the owner of certain premises, subject to the easement of a highway in a portion thereof, and that defendant wrongfully entered on the portion used as a highway and comnitted acts of trespass by running daily herein steam engines and cars, to the injury of said premises and plaintiff's business in the adjacent building. Held, That the complaint stated a cause of action for trespass. To authorize a construction that the grantor of premises intended to retain title to the highway the language of the grant must premises, and committed acts of trespass and injuries to said premises by running thereon daily, during the period specified, steam engines and cars propelled by steam, to the injury of said premises in the depreciation of the value of said building and real estate and to the injury of the hotel business carried on by decedent in the building during all said time, and that no legal authority had been obtained by defendant for said wrongful acts. The description in decedent's deed begins at the northerly corner of 3d avenue and 24th street, and runs thence northeasterly along said 3d avenue, 50 feet; thence northwesterly on a line parallel with 24th street, 100 feet; thence southwesterly on a line parallel with 3d avenue, 50 feet, to 24th street; and thence southeast exhibit such intention. Where a descrip- erly along said 24th street 100 feet, to the place of beginning. tion begins at the corner of two streets and not at the intersection of their exterior lines and the courses run along said streets and not along their sides, the grant carries the title to the center of said streets. Appeal from judgment in favor of defendant, entered on dismissal of complaint. The complaint alleged that plaintiff's intestate was seized and possessed of certain lands in Brooklyn, subject to the easement of a public highway in that portion of the premises called Third avenue; that defendant wrongfully entered on a portion of the premises used as such highway, lying between the center line of Third avenue and the front line of decedent's building erected on said Vol. 18.-No. 10. The complaint was dismissed because it contained no cause of action. A. H. Carpenter and J. C. Kimball, for applt. H. C. Murphy, Jr., for respt. Held, Error; that the complaint contains a cause of action for a trespass. No obstruction of the highway is alleged and no use of the same is set up amounting to a nuisance, but the allegation is that defendant has committed acts of trespass and injuries to the premises by running therein engines and cars. The complaint, therefore, is for trespass plain and simple. That decedent's title extended to the center of 3d avenue. The usual presumption is that the grantor did not intend to retain title to the highway, and to receive such a construction the language of the grant must exhibit such intention. Here the boundary commences at the northerly corner of 3d avenue and 24th street, and not at the intersection of their exterior lines, and runs northerly along 3d avenue and not along its side, and the last course is along 24th street to the place of beginning. Here is no reference to the sides of these streets and no language showing intention to confine the grant to such sides of either street. The language must, therefore, be construed to carry the title of decedent to the center of 3d avenue. He therefore held the fee unimpaired and subject only to the easement of a public highway, and the entry of defendant in the street and the exercise of its claim to use the same for the purpose of a steam railroad was an unlawful intrusion and a trespass on the land, for which damages may be recovered in an action of trespass. 3 Hill, 567; 25 N. Y., 526. It was claimed that decedent's possession was not sufficient to sustain an action of trespass. Held, Untenable; because his possession was co-extensive with his title so far as possession can extend to a public highway. Where land is traveled and used as a public highway, no actual, exclusive possession of it can be shown, and trespass cannot be maintained without showing title; but constructive possession is shown by proof of title to the cen ter and actual occupation of the adjoining land. 20 Wend., 96. Judgment reversed and new trial granted, costs to abide event. Opinion by Dykman, J.; Barnard, P. J., concurs. FIRE INSURANCE. EVI- N. Y. COURT OF APPEALS. Benninghoff, respt., v. The Agricultural Ins. Co., applt. Decided Oct. 23, 1883. The authority of an agent of an insurance company can only be properly proved by the production of the power of attorney issued to him on his appointment, or of a resolution of the company's board of directors under which agents are employed and by which their powers and duties were prescribed. Plaintiff made oral application for insurance and disclosed the existence of all incumbrances. The agent, without plaintiff's knowledge, made out a written application in which no incumbrances were mentioned. Held, That under the circumstances the existence of incumbrances would not constitute a breach of a condition in the policy that if the property was incumbered, it must be so represented to the company in the application, or the policy would be void; that the reception, by plaintiff, of a policy containing a general reference to an application, without disclosing its contents or character, was not such a ratification of the agent's act as would bind plaintiff by the statement contained in such application. After several transfers of title had been made defendant, through its agent, who was authorized to consent to such transfers, consented to an assignment of the policy to plaintiff, and defendant had immediate notice thereof, and did not object until after a loss. Held, That defendant waived the cause of forfeiture which had accrued and reinvested the owner of the policy with a valid cause of action. In an action upon a policy of surance was applied for was fire insurance defendant's secre- offered and excluded. tary was asked: "What was Jacobs' authority as agent of the company?" This question was objected to by plaintiff and excluded. A. H. Sawyer, for applt. Josiah T. Miller, for respt. Held, No error; that the question called for the opinion of the witness without showing showing the source of his knowledge on the subject; that the authority of the agent could only properly be proved by the production of the power of attorney issued to him by the company on his appointment, or of a resolution of defendant's board of directors under which agents were employed and by which their powers and duties were prescribed. The policy provided that if the insured property "shall be incumbered by mortgage, judgment or otherwise, it must be so repre- | sented to the company in the application, otherwise the policy shall be void." It appeared that plaintiff had never made, or authorized a written application for the insurance; it also appeared that in his oral application to defendant's agent he disclosed the existence of every incumbrance constituting a lien upon the property insured. Defendant's agent, without plaintiff's knowledge or consent, made out and forwarded to defendant an application in writing in which no incumbrances were mentioned. Evidence of incumbrances existing on the property insured at the time the in Held, No error; that under the circumstances the existence of such incumbrances would not have constituted a breach of the conditions of the policy. It appeared that defendant's agent had made out and forwarded a written application for such insurance without plaintiff's knowledge or consent, and that the policy, which afterward came into plaintiff's hands, referred to an application generally, without disclosing its contents or character. Held, That this was not such an adoption and ratification of the agent's act in drawing up and sending the application to defendant as bound plaintiff by the statements therein contained. 14 N. Y., 253; 69 id., 128; 72 id., 590; 45 id., 454. It is essential to the validity of an act which is claimed to have been authorized by a subsequent ratification that the principal should have had full knowledge of the circumstances at the time of such ratification. The transfer of the title of property insured under a policy prohibiting such transfer does not operate ipso facto to annul and destroy the policy, but simply confers upon the defendant the right to have it declared void by raising that question at the proper time, if it should elect so to do. 81 N. Y, 419; 17 N. Y., 426; 3 Den., 301. After the policy had been issued several transfers were made of the property. At the time of the last De one defendant, through its agent, who was authorized to consent to such transfers, consented to an assignment of the policy in suit to plaintiff by its then owner, who was not the original insured. fendant had immediate notice of this transfer and consent, and did not object thereto until after a loss had occurred, which was a year subsequent to such notice. Held, That defendant must be held to have waived the cause of forfeiture which had accrued, and to have reinvested the owner of the policy with a valid cause of action against it. 17 N. Y., 426; 61 id., 26; 46 id., 526. It was entirely immaterial if there had been an intermediate conveyance of the property in sured which was not accompanied by an assignment of the policy, the title of the property and ownership of the policy having by a valid consent of defendant to its assignment been united in plain tiff at the time of the loss. 39 N. Y., 49. It is no objection that the transfer of the property preceded the consent to the assignment of the policy. Judgment of General Term, affirming judgment for plaintiff. affirmed. concur. TOWNS. MANDAMUS. Decided Dec. 14, 1883. After relator recovered a judgment against Chap. 554, Laws of 1880, applies only to the On February 20, 1879, the relator recovered a judgment against the town of Kingston, in Ulster County. On November 28, 1879, the Board of Supervisors of said county, under Chapter 319 of the Laws of 1872, divided the town of Kingston, by erecting a new town called Ulster, and by annexing a portion of it to the town of Woodstock. The act provided that "All the remaining part of the present town of Kingston not included in either of the aforesaid boundaries shall be and remain a separate town in the county of Ulster, by the name of Kingston." The action of the Board of Supervisors was legalized by Chapter 407 of Laws of 1880. This division apparently left the town of Kingston with Opinion by Ruger, Ch. J. All less than three per cent. of the property formerly within its limits. In November, 1882. the relator applied for a mandamus directing the Board of Supervisors to levy and assess the amount due him on his judgment on the town of Kingston, or on the towns of Kingston and Ulster, and so much of Woodstock as in 1879 formed N. Y. COURT OF APPEALS. The People ex rel. McKenzie, applt., v. The Board of Supervisors of Ulster Co., respt. the town of Kingston, pro rata. A writ was granted commanding the supervisors to levy and assess the amount due on the relator's judgment upon the three towns as prayed for, and that the amount should be apportioned upon the territory formerly comprised within the town of Kingston before its division, according to the assessed valuation of the property within the territory as appeared by the tax-rolls of the several towns for the year 1882. This order was reversed by the General Term, and the application denied, and the relator appealed to this court. A judge of the Supreme Court has no jurisdiction to extend the time to file the return on appeal to the Court of Appeals. This was a motion to set aside an order of this court, entered ex parte by defendant's attorney, dismissing plaintiff's appeal, on the ground that it had been irregularly procured and entered without authority of law. It appeared that plaintiff took an appeal to this court and gave the usual and necessary undertaking on appeal on October 11, 1883. On November 2. 1883, defendant's attorney served on plaintiff's attorney the notice required by rule 2 of this court, requiring the appellant to J. Newton Fiero, for applt. Howard Chipp, Jr., and John J. file the return on appeal within Linson, for respt. Held, No error; that under the provisions of the Revised Statutes, 1 R. S., 338, §§ 4, 5, 6, 7, 8, 10, the relator has a plain remedy, which is by mandamus to compel a meeting of the present officers of the three towns and a discharge by them of the duties devolved upon them by the statute. Chapter 554 of the Laws of 1880 has reference only to the collection of judgments against towns which have not been divided or altered. Order of General Term, reversing order of Special Term and denying application, affirmed. Opinion by Earl, J. All con ten days from such service. On November 12, 1883, plaintiff procured from a judge of the Supreme Court an order extending the time to file the return on appeal twenty days further. This order, with the affidavit upon which it was granted, was served on the defendant's attorney the same day (November 12th), and said order has never been vacated or modified. Defendant's attorney kept the order until 5 P. M. of November 13th, and then returned it. An order dismissing the appeal, dated November 13, was entered by defendant's attorney. James M. Lyddy, for motion. J. Wessell Smith, opposed. Held, That the order extending the time to file the return was invalid, as the judge who granted it had not jurisdiction. Section 1339 of the Code of Civil Procedure does not apply to a case like the |