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• filled up the application and hand- plication be made, and that a poled it to me to read over. I told icy to that effect should be issued him I did not see anything but is decidedly against the weight of what was satisfactory to me.” He evidence. The proof of the claim also testified that there was then of a mutual mistake is not so clear no writing where the clause in and convincing as to leave no room question now appears; that the for doubt. 64 N. Y.. 453. talk at the house was in the pres.

There is no evidence to support ence of his wife and son; that the finding that Powers agreed to Pluss wrote with a pencil, and keep the premises insured for dethat he, witness, never consented fendant's benefit after the first for anyone to make an applica- policy expired. tion" for a policy to him with loss There is no evidence to support payable to Knapp. Powers' son the conclusion that Knapp had an corroborated his father as to what equitable lien. occurred in the field and at the A statement in the application house, and his wife corroborated that the loss is payable to a parhim as to his refusal at the house ticular person, which in no way to insure for Knapp's benefit. The affects the risk assumed by the inmortgage contained no insurance surer, is not thereby imported into clause. The premium was paid by the policy with the effect of overPowers and not by Knapp. Two riding an express provision in the clauses in the policy refer to the policy itself. In the absence of application : the first

the first provides fraud or mistake the statement in that “all applications for insur. the policy will control. ance must be made in writing, and Plaintiffs are not estopped from signed by the applicant, or by his showing that the statement in the authority, and all statements con application was not authorized by tained in the application will be Powers. taken and deemed to be warranties Powers having no direct interest on the part of the assured ;' the in the result is not a necessary sccond is as follows: "The Agri- party. cultural Insurance Company * Judgment reversed and new trial do insure J. E. Powers

ordered before another referee, the following property as describ- costs to abide event. ed in the application and survey, Opinion by Smith, P. J; Harbearing even date herewith, and din and Macomber, JI., concur. which is referred to as a part of this policy.”

SLANDER. EVIDENCE. DAMClinton & Clark, for applts.

AGES. J. L. White, for respt. Held, That the finding that N. Y. SUPREME Court. GENERAL

TERM, FOURTH DEPT. Powers made application for a policy with loss payable to de- Nora Cowell, by guardian, fendant, or agreed that such ap- respt., v. Seth Day, applt.

Vol. 18.-No. 5.


Decided Oct., 1883.

slanders not charged in the comEvidence by defendant as to prior dificulties plaint, but of the ame character

or malice between him and plaintiff is com- and import. petent upon the question whether the slan

John Foster, for applt. der was uttered in the spirit of malice,

William Roe, for respt. hatred or revenge ; and defendant may testify as to the existence or non-existence of

Held, That defendant was a malice on his part.

competent witness to the fact of Proof of repetitions of slanders of the same disagreements, contentions, or uncharacter and import as those charged in

friendly feelings between the parthe complaint, occurring before suit, is competent.

ties, and to describe the nature and Proof of malice, wantonness, or a disposition character of the same and under

to annoy or oppress plaintiff is necessary to what circumstances they existed. carry exemplary damages.

He was also competent to speak Appeal from judgment in action

as to his feelings toward plaintiff. originally begun in County Court,

Exemplary damages in most acentered upon a verdict for plain- tions of tort are not allowed for tiff.

the mere purpose of swelling the Action for slander.

plaintiff's recovery, but in the inThe alleged utterances by de.

terests of society at large, and in fendant do not necessarily impute civil suits it is incumbent upon to plaintiff a want of chastity, but plaintiff to prove that defendant the circumstances were such that

was actuated by the spirit of malthe hearers may well have under- ice, wantonness, or a disposition stood that defendant did mean to

to annoy or oppress the plaintiff. impute to plaintiff licentious hab- Each of the repetitions proved its and a want of chastity, and

was before commencement of this that he himself had brought her suit, and, therefore, competent. into disgrace. The judge instruct- 6 Hill

, 518; 69 N. Y., 122; 77 id., ed the jury that plaintiff was en- 182 ; 60 N. Y., 337.

. titled to recover all her actual

New trial granted, costs to abide damages, and if they found de- event. fendant guilty of express malice

Opinion by Barker, j.; Smith, they were at liberty to add exem-P. J., and Hardin, J. concur. plary damages. While defendant

on the witness stand his counsel asked him : "Have you at MUNICIPAL CORPORATION. any time, prior to the commence

NEGLIGENCE. ment of this action, had any difficulty or malice with Nora Cowell, N. Y. SUPERIOR COURT. GENERAL the plaintiff in this action?” The

TERM. question was excluded as incompetent and immaterial, and de

Ellen C. Vosper, admrx., respt., fendant excepted. Defendant al

v. The Mayor, &c., of New York, so objected to evidence, which was

applt. received, proving a repetition of Decided June 2, 1883.


In an action to recover damages for injuries was rotten or unsafe ; that to decaused by the negligence of defendant,

mand of the city that it should which injuries were occasioned by the fall

bore the tree, or should make any ing of a tree growing on the sidewalk in a public street, and which after its fall was other than a superficial examinafound to be rotten from its roots up, to a tion to look for possible defects dangerous degree, the evidence being con- which could not be discerned flicting as to whether there was any exterior sign thereof while the tree was stand- would, in the absence of notice of ing, Held, That the obligation of the city can

their existence, be imposing upon not be limited to the duty to act only upon the city more than ordinary care ; exterior signs of danger, and it is the ques- that if the decay in the tree tion for a jury to decide whether or not de

which occasioned the accident was fendant should by some means anticipate the danger, even by cutting down the tree.

concealed and hid from ordinary

observation and the city had no Appeal by defendant from judg- notice, actual or constructive, that ment for plaintiff, entered on a such tree was decayed or dangerverdict of jury, and from order ous, the city is not guilty of neglidenying a motion for new trial gence for not discovering such demade upon the minutes.

cay and the accident is one of misAction for damages for the fortune or inevitable accident for death of plaintiff's intestate caused which there is no redress in law, by the negligence of defendant. and that if the tree was to all outThe cause of the death was the ward appearance reasonably safe falling of a tree that had been and sound for the ordinary season growing on a sidewalk. After the and storms, and if the city had no tree fell it was apparent that it notice of its unsound character was rotten from the roots up, to a and no reason to, apprehend that dangerous degree. There it was unsound, then the city is some conflict of evidence as to not liable. This request was dewhether there was any exterior nied, and defendant excepted. sign of the rottenness when the Charles Blandy, for applt. tree was standing.

A. J. Vanderpoel, for respt. On the trial defendant's coun- Held, No error; that it would be sel asked the court to charge that incorrect to limit the obligation of plaintiff could not recover, unless the city to act only upon, what she satisfied the jury that the rot- was called in the case, the appeartenness was visible and obvious to ance of the tree being dangerous. view from ordinary observation ; The city would be bound to act that if the tree presented no out- upon their knowledge, or obligaward indication of rottenness or tion to gain knowledge, as to the unsafeness then there was no neg. intrinsic qualities of the tree and ligence in not boxing the tree or the soil, although these were not not making any extraordinary ex- manifested in the outward appearamination to test its safety, unless ance of the tree. the city had reason to believe It would be a question for the from notice or otherwise that it jury to whether defendant



should do or not do something, permitting him to answer, coneven to cutting down the tree, to tained a provision that if the order prevent the danger. The jury appealed from or any part thereof could and should find whether it is affirmed, or the appeal is diswas the duty of defendant to as- missed, the appellant would pay certain the habits of a tree of this any judgment that may be entered kind, growing in city soil, and to pursuant to the order for judgment ascertain whether it was likely or of Jan. 16, 1882; that the order unlikely that, while the tree was from which the appeal was taken fair on the outside and apparently was affirmed in this court, and staunch, there was reasonable judgment was subsequently enground for apprehending that it tered against the appellant, purmight be, in fact, unsafe.

snant to the order of Jan, 16, 1882, Judgment and order affirmed, from which the present appeal is with costs.

taken, and that this provision preOpinion per curiam.

vents the appellant from maintain-
ing the appeal from the judgment.

N. C. Moak, for motion.

James M. Smith, opposed.

Held, That the motion should N. Y. COURT OF APPEALS.

be denied; that the clause relied Stedeker v. Bernard.

upon is satisfied by holding it to re

late to the final judgmentin the acDecided Oct. 26, 1883.

tion and it should be so construed. A stipulation barring the right of appeal A stipulation barring the right of

given by law should be very clear and appeal given by law should be very should leave no doubt of the intention of clear in its terms, and should leave the party to cut himself off from the right of appeal before it should be so construed.

no doubt of the intention of the A clause in an undertaking on appeal from party to cut himself off from the

an order vacating an order opening a de- right of appeal, before it should fault, to the effect that appellant will, if be so construed. the order is affirmed or appeal dismissed,

Motion denied. pay any judgment that may be entered pursuant to the order for judgment relates to Per curiam opinion. the final judgment and will not bar an ap- cur. peal from the judgment when entered after affirmance of such order.

COUNTY. ACTION. Plaintiff seeks to dismiss the appeal in the above entitled action

N. Y. COURT OF APPEALS. on the ground that an undertaking

Gray, by guardian, applt., v. entered into by defendant on an

The Board of Supervisors of Tompappeal to this court from an order

kins Co., respt. of the General Term, among other things, vacating and setting aside

Decided Nov. 20, 1883. an order of the Special Term open- Where moneys are deposited by order of the ing a default of defendant and court with a County Treasurer such mon

All con

eys do not become the money of the county, I judgment absolute for defendant and where they are lost through defalcation

on stipulation. of the Treasurer the party for whose ben

Opinion by Earl, J. All concur, efit the deposit was ordered cannot maintain an action therefor against the county. except Ruger, Ch. J., and Finch, Affirming S. C., 14 W. Dig., 152.

J., not voting. The plaintiff, an infant, owned certain real estate in Tompkins

LIMITATION. County, which was sold under the statutes by proceedings in the Su.

N. Y. COURT OF APPEALS. preme Court, and the proceeds,

Gilbert, applt., v. Comstock et amounting to abont $800, were by al., respts. order of the court deposited with the treasurer of said county, to be

Decided Oct. 23, 1883. by him invested for the infant's Plaintiff presented to the Surrogate a claim benefit until he arrived at the age for care and board of her testatrix from of twenty-one, the interest in the 1863 to February, 1879, the time of her

death. It appeared that a payment on acmeantime to be annually paid to his

count thereof had been made in November, general guardian. After paying 1875, and that no payment had been made the interest for several years the prior thereto since 1868. The Surrogate county treasurer became a de- limited the recovery to such part of the

claim as accrued within six years prior to faulter. Not being able to get the

testatrix' death. Held, Error ; that the money from him or his successor,

payment was suíficient to operate as a replaintiff brought this action.

newal of liability, as by a new promise,

for whatever might be found to be actually S. D. Halliday, for applt.

due for a time against which the statute Merritt King, for respt.

had not run at the time of such payment. Held, That plaintiff was not en

Reversing S. C., 13 W. Dig., 166. titled to recover ; that the county On February 4, 1879, one W. treasurer did not receive the died, leaving a will by which she money as the agent of the county, appointed her sister G., the plainor in any way for it, or on its be- tiff here, executrix. The will was half. It did not by deposit with admitted to probate, and on June him become the money of the 30, 1879, G. presented a petition county and the county could not to the Surrogate, stating that from through its Board of Supervisors April 1, 1863, to her death W. in any way control or interfere | boarded with her, and was at her with it. The treasurer was a cus- death indebted for care and board todian of the money not selected $2,286 over and above all pay. by the county, but by the law. ments. She asked to have the Laws 1847, Chap. 280, $ 71 ; debt proved before the Surrogate, Laws 1848, Chap. 277, § 6; Laws and that she be permitted to re1859, Chap. 386 ; 1 R. S. 419, $ 6. tain the amount of it out of the as

Order of General Term, revers- sets in her hands. Citations were ing judgment for plaintiff and duly issued and served, and on granting new trial, affirmed, and July 28 the Surrogate, after recit

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