filled up the application and handed it to me to read over. I told him I did not see anything but what was satisfactory to me." He also testified that there was then no writing where the clause in question now appears; that the talk at the house was in the presence of his wife and son; that Ploss wrote with a pencil, and that he, witness, "never consented for anyone to make an application" for a policy to him with loss payable to Knapp. Powers' son corroborated his father as to what occurred in the field and at the house, and his wife corroborated him as to his refusal at the house to insure for Knapp's benefit. The mortgage contained no insurance clause. The premium was paid by Powers and not by Knapp. Two clauses in the policy refer to the application the first provides that "all applications for insurance must be made in writing, and signed by the applicant, or by his authority, and all statements contained in the application will be taken and deemed to be warranties on the part of the assured;" the sccond is as follows: "The Agricultural Insurance Company * do insure J. E. Powers * * the following property as described in the application and survey, bearing even date herewith, and which is referred to as a part of this policy."

Clinton & Clark, for applts.

J. L. White, for respt.

*

on

plication be made, and that a policy to that effect should be issued is decidedly against the weight of evidence. The proof of the claim. of a mutual mistake is not so clear and convincing as to leave no room for doubt. 64 N. Y.. 453.

There is no evidence to support the finding that Powers agreed to keep the premises insured for defendant's benefit after the first policy expired.

There is no evidence to support the conclusion that Knapp had an equitable lien.

A statement in the application that the loss is payable to a particular person, which in no way. affects the risk assumed by the insurer, is not thereby imported into the policy with the effect of overriding an express provision in the policy itself. In the absence of fraud or mistake the statement in the policy will control.

Plaintiffs are not estopped from showing that the statement in the application was not authorized by Powers.

Powers having no direct interest in the result is not a necessary party.

Judgment reversed and new trial ordered before another referee, costs to abide event.

Opinion by Smith, P. J; Hardin and Macomber, JJ., concur.

Powers made application for a

policy with loss payable to de

Vol. 18.-No. 5.

Decided Oct., 1883. Evidence by defendant as to prior difficulties or malice between him and plaintiff is competent upon the question whether the slander was uttered in the spirit of malice, hatred or revenge; and defendant may testify as to the existence or non-existence of malice on his part.

Proof of repetitions of slanders of the same character and import as those charged in the complaint, occurring before suit, is competent.

Proof of malice, wantonness, or a disposition to annoy or oppress plaintiff is necessary to carry exemplary damages.

Appeal from judgment in action originally begun in County Court, entered upon a verdict for plaintiff.

Action for slander.

The alleged utterances by defendant do not necessarily impute to plaintiff a want of chastity, but the circumstances were such that the hearers may well have understood that defendant did mean to impute to plaintiff licentious habits and a want of chastity, and that he himself had brought her into disgrace. The judge instructed the jury that plaintiff was entitled to recover all her actual damages, and if they found defendant guilty of express malice they were at liberty to add exemplary damages. While defendant was on the witness stand his

slanders not charged in the complaint, but of the ame character and import.

John Foster, for applt.
William Roe, for respt.

Held, That defendant was a competent witness to the fact of disagreements, contentions, or unfriendly feelings between the parties, and to describe the nature and character of the same and under what circumstances they existed. He was also competent to speak as to his feelings toward plaintiff.

Exemplary damages in most actions of tort are not allowed for the mere purpose of swelling the plaintiff's recovery, but in the interests of society at large, and in civil suits it is incumbent upon plaintiff to prove that defendant was actuated by the spirit of malice, wantonness, or a disposition to annoy or oppress the plaintiff.

Each of the repetitions proved was before commencement of this suit, and, therefore, competent. 6 Hill, 518; 69 N. Y., 122; 77 id., 182; 60 N. Y., 337.

New trial granted, costs to abide

event.

Opinion by Barker, J.; Smith, P. J., and Hardin, J. concur.

NEGLIGENCE.

TERM.

Ellen C. Vosper, admrx., respt., v. The Mayor, &c., of New York, applt.

Decided June 2, 1883.

In an action to recover damages for injuries caused by the negligence of defendant, which injuries were occasioned by the falling of a tree growing on the sidewalk in a public street, and which after its fall was found to be rotten from its roots up, to a dangerous degree, the evidence being conflicting as to whether there was any exterior sign thereof while the tree was standing, Held, That the obligation of the city can

not be limited to the duty to act only upon exterior signs of danger, and it is the question for a jury to decide whether or not de

fendant should by some means anticipate

the danger, even by cutting down the tree.

Appeal by defendant from judgment for plaintiff, entered on a verdict of jury, and from order denying a motion for new trial made upon the minutes.

Action for damages for the death of plaintiff's intestate caused by the negligence of defendant. The cause of the death was the falling of a tree that had been growing on a sidewalk. After the tree fell it was apparent that it was rotten from the roots up, to a dangerous degree. There was some conflict of evidence as to whether there was any exterior sign of the rottenness when the tree was standing.

On the trial defendant's counsel asked the court to charge that plaintiff could not recover, unless she satisfied the jury that the rottenness was visible and obvious to view from ordinary observation; that if the tree presented no outward indication of rottenness or unsafeness then there was no negligence in not boxing the tree or not making any extraordinary examination to test its safety, unless the city had reason to believe from notice or otherwise that it

was rotten or unsafe; that to demand of the city that it should bore the tree, or should make any other than a superficial examination to look for possible defects which could not be discerned would, in the absence of notice of their existence, be imposing upon the city more than ordinary care; that if the decay in the tree which occasioned the accident was concealed and hid from ordinary observation and the city had no notice, actual or constructive, that such tree was decayed or dangerous, the city is not guilty of negligence for not discovering such decay and the accident is one of misfortune or inevitable accident for which there is no redress in law, and that if the tree was to all outward appearance reasonably safe and sound for the ordinary season and storms, and if the city had no notice of its unsound character and no reason to apprehend that it was unsound, then the city is not liable. This request was denied, and defendant excepted.

Charles Blandy, for applt.
A. J. Vanderpoel, for respt.

Held, No error; that it would be incorrect to limit the obligation of the city to act only upon, what was called in the case, the appearance of the tree being dangerous. The city would be bound to act upon their knowledge, or obligation to gain knowledge, as to the intrinsic qualities of the tree and the soil, although these were not manifested in the outward appearance of the tree.

It would be a question for the jury as to whether defendant

should do or not do something, even to cutting down the tree, to prevent the danger. The jury could and should find whether it was the duty of defendant to ascertain the habits of a tree of this kind, growing in city soil, and to ascertain whether it was likely or unlikely that, while the tree was fair on the outside and apparently staunch, there was reasonable ground for apprehending that it might be, in fact, unsafe. Judgment and order affirmed, with costs.

Opinion per curiam.

APPEAL.

N. Y. COURT OF APPEALS.

Stedeker v. Bernard.

Decided Oct. 26, 1883.

A stipulation barring the right of appeal given by law should be very clear and

should leave no doubt of the intention of the party to cut himself off from the right of appeal before it should be so construed. A clause in an undertaking on appeal from an order vacating an order opening a default, to the effect that appellant will, if the order is affirmed or appeal dismissed, pay any judgment that may be entered pursuant to the order for judgment relates to the final judgment and will not bar an appeal from the judgment when entered after affirmance of such order.

Plaintiff seeks to dismiss the appeal in the above entitled action on the ground that an undertaking entered into by defendant on an appeal to this court from an order of the General Term, among other things, vacating and setting aside an order of the Special Term opening a default of defendant and

permitting him to answer, contained a provision that if the order appealed from or any part thereof is affirmed, or the appeal is dismissed, the appellant would pay any judgment that may be entered pursuant to the order for judgment of Jan. 16, 1882; that the order from which the appeal was taken was affirmed in this court, and judgment was subsequently entered against the appellant, pursuant to the order of Jan. 16, 1882, from which the present appeal is taken, and that this provision prevents the appellant from maintaining the appeal from the judgment. N. C. Moak, for motion. James M. Smith, opposed.

Held, That the motion should be denied; that the clause relied upon is satisfied by holding it to relate to the final judgment in the action and it should be so construed. A stipulation barring the right of appeal given by law should be very clear in its terms, and should leave no doubt of the intention of the party to cut himself off from the right of appeal, before it should be so construed.

Motion denied.
Per curiam opinion.

cur.

All con

COUNTY. ACTION.

N. Y. COURT OF APPEALS. Gray, by guardian, applt., v. The Board of Supervisors of Tom pTompkins Co., respt.

Decided Nov. 20, 1883. Where moneys are deposited by order of the court with a County Treasurer such mon

eys do not become the money of the county, and where they are lost through defalcation of the Treasurer the party for whose benefit the deposit was ordered cannot maintain an action therefor against the county. Affirming S. C., 14 W. Dig., 152.

The plaintiff, an infant, owned certain real estate in Tompkins County, which was sold under the statutes by proceedings in the Supreme Court, and the proceeds, amounting to about $800, were by order of the court deposited with the treasurer of said county, to be by him invested for the infant's benefit until he arrived at the age of twenty-one, the interest in the meantime to be annually paid to his general guardian. After paying the interest for several years the County treasurer became a defaulter. Not being able to get the money from him or his successor, plaintiff brought this action.

8. D. Halliday, for applt. Merritt King, for respt. Held, That plaintiff was not entitled to recover; that the county treasurer did not receive the money as the agent of the county, or in any way for it, or on its behalf. It did not by deposit with him become the money of the county and the county could not through its Board of Supervisors in any way control or interfere with it. The treasurer was a custodian of the money not selected by the county, but by the law. Laws 1847, Chap. 280, § 71; Laws 1848, Chap. 277, § 6; Laws 1859, Chap. 386; 1 R. S. 419, § 6.

Order of General Term, reversing judgment for plaintiff and granting new trial, affirmed, and

judgment absolute for defendant on stipulation.

Opinion by Earl, J. All concur, except Ruger, Ch. J., and Finch, J., not voting.

LIMITATION.

N. Y. COURT OF APPEALS. Gilbert, applt., v. Comstock et al., respts.

Decided Oct. 23, 1883.

Plaintiff presented to the Surrogate a claim

for care and board of her testatrix from 1863 to February, 1879, the time of her death. It appeared that a payment on account thereof had been made in November, 1875, and that no payment had been made prior thereto since 1868. The Surrogate limited the recovery to such part of the claim as accrued within six years prior to testatrix' death. Held, Error; that the payment was sufficient to operate as a renewal of liability, as by a new promise, for whatever might be found to be actually due for a time against which the statute had not run at the time of such payment. Reversing S. C., 13 W. Dig., 166.

On February 4, 1879, one W. died, leaving a will by which she appointed her sister G., the plaintiff here, executrix. The will was admitted to probate, and on June 30, 1879, G. presented a petition to the Surrogate, stating that from April 1, 1863, to her death W. boarded with her, and was at her death indebted for care and board $2,286 over and above all pay. ments. She asked to have the debt proved before the Surrogate, and that she be permitted to retain the amount of it out of the as sets in her hands. Citations were duly issued and served, and on July 28 the Surrogate, after recit