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curity, 82 N. Y., 155 ; but the Action on two policies of insurright of substitution or subroga- ance on the life of plaintiff's hustion in equity to securities applies band. Each policy contained a only to cases of suretyship or condition that it should be void if where parties are pledged, either the assured "should die in, or in personally or by incumbrances on consequence of the violation of the their property, for the debts of laws of any nation, State or provothers. 64 N. Y., 397.

64 N. Y., 397. Plaintiff ince.” is not a surety, either personally On July 13, 1876, the assured or in virtue of his ownership of and his brother made a violent asany incumbered land, and is not, sault on one B. in the depot at therefore, situated within the rule. Goshen, the brother holding B.

Judgment affirmed, with costs. from behind while the assured

Opinion by Dykman, J.; Bar. beat him over the face and head nard, P. J., concurs.

with a rawhide, inflicting painful wounds from which blood

flowed freely. In the struggle B. LIFE INSURANCE. PRAC

drew a pistol, when the assured TICE.

ceased to strike and retreated, N.Y. SUPREME COURT. GENERAL leaping over a lunch counter, and TERM. SECOND DEPT. attempted to pass through a door.

As he did so, he turned toward B, Gertrude B. Murray, applt., v. The New York Life Insurance Co., the ball striking the assured in the

when the pistol was discharged, respt.

forehead, inflicting a wound of Decided Sept., 1883.

which he died several days after. The policies in suit provided that they should There was evidence that assured

be void if the assured "should die in, or in had a pistol in his hand when he consequence of the violation of the laws of turned and pointed it at B.; it was any nation, State or province.” The as

found where he fell. sured, with his brother, made a violent as

B. testified that he did not shoot sault upon one B., and, after the latter had drawn a pistol, endeavored to escape, when he the assured intentionally, and that was shot and killed by B., who testified that the pistol was discharged accithe shooting was not done intentionally. dentally in the struggle. Held, That it was immaterial whether the shot was fired intentionally or in self-defense, or

It is claimed that as B.'s testiwhether the assured had abandoned the mony was uncontradicted, it canconflict when he was shot; that although not be said that the shooting was B.'s testimony as to intention was uncon- the natural consequence of the astradicted it would have been error for the

sault and therefore does not fall court to have directed a verdict ; that the case was properly submitted to the jury within the condition of the policy. and that they were justified in finding that A. S. Murray, Jr., for applt. the shooting was the natural consequence Evarts, Southmayd & Choate, for of the assault.

respt. Appeal from judgment in favor Held, Untenable; that it was of defendant, entered on verdict. immaterial whether the shooting

was intentional or not. So long as ant; but being violently and sudthere was a violation of the law on denly attacked, assailed with the part of the assured and death blows calculated to inflict great as its result, it is immaterial by personal injury, if not to endanger what manner it was produced, ex- his life, struggling to free himself cepting that there should be in from his assailants, maddened by each case a direct connection be repeated assaults and blinded by tween the criminal act and the the blood flowing from his wounds, death of the assured. It can make he suddenly drew his pistol and no difference that the assured had shot his assailant, was a view of withdrawn a few feet from the the transaction fairly to be inscene of the fight at the time of the ferred from all the evidence in the firing of the pistol. He was either case. Whether the act of drawing still engaged as an active party in and discharging the pistol was imthe assault, in which case he died pulse or intention was wholly imwhile violating the law, or is he material. It certainly was the rehad withdrawn from the fight then sult of the will power of the man, the firing of the pistol was the prompted by the strongest impulse direct result of a struggle which of his nature-that of self-preserhe himself precipitated, and his vation. death was the direct and natural However it may have happened, consequence of the assault. But it was a fair inference, and one I do not think it can be said that which might well be drawn from the evidence as to the accidental the whole testimony, that the firing of the pistol was uncontra- shooting was the natural and ledicted to the extent that the court gitimate outcome and consequence could have disposed of the question of the violent assault made upon as one of law. It is true B. so tes him, and it was for the jury to draw tified and that no witness did, as the inference and determine the no witness could, contradict his facts. It would have been error statement as to his own intention for the court to have directed a in discharging the pistol. The verdict, and the cause was properly jury were not bound to believe disposed of by submitting it to the B.'s testimony. There were, doubt- jury, and we find no grounds for less, reasons which might induce disturbing their verdict. See 95 him to give to the shooting the Mass., 308 ; 99 id., 317; 45 N. Y., coloring that he did. It certainly 422. was not a conclusive inference from The court charged that it was B.'s testimony that the shooting not necessary to find that the aswas accidental. Perhaps it was sured lost his life wounder such not "intentional” in the ordinary circumstances as would protect the meaning of that word. B. may party taking it under the law, that not have been cognizant at the is, in self-defense,” and “that if time of the determination in his they found that B. discharged the mind to kill or wound his assail. ( pistol in the heat of passion nat

is Appeal by plaintiff from a judg

urally excited by the combined that the verdict was properly reattack made upon him by the ceived. M.s plaintiff cannot recover.'

Ebersole v. Northern Cent. RR. Held, No error. The question Co., 23 Hun, 114, distinguished. was, did M. die in or in consequence Judgment affirmed, with costs. of the criminal assault which he Opinion by Brown, J.; Pratt, made upon B. This question was J., concurs; Dykman, J., dissents. to be determined without reference to the question whether B., in tak

PLEADINGS. AMENDMENT. ing M.'s life, had also committed a crime. It might very well be N. Y. SUPREME COURT. GENERAL that if B. had been indicted and

TERM. THIRD DEPT. tried for the killing of M. a jury might have said that he was not

Elisha Ayers, applt., v. William

H. Sherman et al., respts. justified in killing him, and yet such a verdict would not be incon- Decided Nov., 1883. sistent with the fact that M. died

A plaintiff should not be allowed to recover in consequence of his violation of

for one cause of action in a justice's court, law. If M.'s acts were such as to and then on appeal substitute a new cause produce in B. a high degree of

of action when it becomes apparent he canpassion and while in such state he

not recover on his original complaint. slot and killed M., clearly his death was the natural consequence ment against him, entered upon of the assault. See 45 N. Y., 430, appeal and new trial in the county 432.

court. In submitting the case the court This action was begun in a jusrequested the jury to answer spe- tice's court, where a recovery was cifically-1, Whether B. fired the had under a complaint for a breach shot intentionally; 2, Whether of contract by which defendants the killing of M. was justified on agreed to employ plaintiff for a the ground that it was done by B. year, and without cause dischargfor his lawful self-defense, and 3, ing him before the expiration of Hlad M. at the time he was shot the year. abandoned the combat. The jury The answer was a general denial, rendered a general verdict and payment in full for services, &c. stated they were unable to answer Defendant appealed to the couniy the questions. It is claimed that court for a new trial. Upon such it was error to receive the verdict trial plaintiff was nonsuited beunless the specific questions were cause the contract for breach of answered.

which the action was bronght was Held, That these questions were void under the statute of frauds, immaterial and that it was not es- because not to be performed within sential that the jury should agree one year from the time when on any one of them in order to ar- made. Before being nonsuited rive at a verdict for defendant, and plaintiff asked leave to amend his




complaint so as to make it a com- Appeal by defendant from an plaint on a quantum meruit for order made December 29, 1882, services rendered. This motion continuing the injunction heretowas denied.

fore granted, pendente lite, DeD. W. Sparling, for applt.

cember 4, 1882, restraining defendPreston & Chipp, for respts.

ant, his agents and servants from

continuing the work upon the Held, That the refusal to allow building or tenement-house known the amendment was right, because

as No. 1089 First avenue, in the it would have substituted a new city of New York, and from comand wholly different


pleting or finishing the same conaction.

trary to the requirements of law, Especially should such

and from selling, letting, hiring, amendment be denied after an occupying or using in any manner appeal to the county court for a

the said house or any part thereof. new trial from a justice's court.

The action was brought to enforce But if the amendment could legally Laws of 1867, 1879 and 1880, known have been permitted it was a mat- the Tenement House Laws. ter in the discretion of the county After the order appealed from had court, and no reason exists why been entered, and before the apwe should interfere with an exer- peal therefrom had been heard, cise of discretion which we think this action was tried on its merits, was just and wise.

and a judgment was entered reJudgment of nonsuit affirmed, straining the defendant from doing with costs.

the acts, the doing of which had Opinion by Boardman J.; Lear- been restrained by the order apned, P. J., and Bockes, J., con

pealed from
Joseph Koch, for applt.

W. P. Prentice, for respt.

Held, That the order appealed N.Y. SUPERIOR COURT. GENERAL

from is merged in the judgment. TERM.

The judgment covers the whole The Health Department of N.

case and supersedes the injunction

order. In such a case the court Y., respt., v. Thomas O'Reilly, applt.

will not hear the appeal from the

order, but will leave the appellant Decided Nov. 16, 1883.

to his appeal from the judgment. Where, after the entry of an injunction order

Appeal dismissed, with costs pendente lite, and before the hearing of the and disbursements. appeal therefrom, the action is tried on the Opinion by Truax, J.; Sedg. merits and a perpetual injunction is decreed wick, Ch. J., and Ingraham, J., covering the same ground as the injunction

concur. order, such order will be deemed merged in the judgment and no appeal from it will be entertained.


MUNICIPAL CORPORATION. cable to highways, was paid over ESTOPPEL.

to the trustees for 1877, which, so N. Y. SUPREME COURT. GENERAL ted for any such purpose.

far as appears, was not appropria TERM. THIRD DEPT.

A. P. Carpenter, for applt. George Gilbert, applt., v. The A. R. Henderson, for respt. Village of Margaretville, respt.

Held, That there was no debt

created by plaintiff's employment Decided Nov., 1883.

pa yable at a future time; it was A mu

al corporation which receives the due when the services were renderfruits of labor, rendered on its request, ed. The trustees, of their own should be estopped from avoiding payment motion, had the power to raise the by an irregularlty or an invalidity created

amount by tax and pay plaintiff. by and known only to its own agents.

proper construction of the Appeal from judgment for costs statutes would relieve plaintiff's against plaintiff, entered on report claim from the defense interposed. of a referee nonsuiting plaintiff. Held further, The plaintiff had

Plaintiff rendered services for no way of discovering whether defendant in repairing roads and defendant's agents were acting streets during the year 1877. Such within their legal authority. That work was done under the direction knowledge was possessed only by of defendant's trustees. The value the trustees. The corporation thereof was audited at $65.

which has received the fruits of The defense is purely technical. plaintiff's labor, rendered on its By $ 10, Tit. 8, of Chap. 291, Laws request, should be estopped from of 1870, the creation of a debt avoiding payment by an irregupayable at a future time is pro- larity or invalidity created by and hibited unless within the income of known only to its own agents.

73 the current year. By $ 16, of Tit. N. Y., 238, 244, 245, 248; 1 Dill. 3, of the same act, the trustees are on Mun. Corp., SS 385, 386, 387. given power to raise by tax money Judgment reversed and new trial for the expenditures required by granted, costs to abide event, and the charter. By S 13 the trustees referee discharged. are also the assessors. By $11 Opinion by Boardman, J.; they may estimate their ordinary Learned, P.J., concurs ; Bockes, expenses and raise taxes for the J., dissents. . payment thereof.

By $ 6, Tit. 4, the trustees are authorized, in any

ATTACHMENT. one year, to raise not more than one per cent. of assessed valuation N. Y. SUPREME COURT. GENERAL over and above poll tax for high

TERM. FIRST DEPT. way purposes, if they deem it

John Betjemann, respt., v. Mary necessary. No such tax was rais.

E. Brooks, applt. ed in 1877, but from the tax of 1876 a surplus of $58.25, appli- Decided Dec. 21, 1883.

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