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policy of insurance "on advances against captain's draft upon the freight of all kinds of lawful goods and merchandise laden or to be laden on board the good bark Buoni Amici." The vessel subsequently proceeded upon her voyage, but before reaching its termination she was so much damaged by perils of the sea as to render it necessary to make the nearest port, and she was taken to Port Eads in the state of Louisiana, where by a survey it was found that she had been so badly damaged as to be unfit to continue her voyage. It was thereupon ended, the cargo discharged and the vessel sold. Notice thereof, and proof of loss, was served upon the defendant, which refused to pay on account of the violation of this fifteenth regulation by the making of the second loan, while the vessel laid at Pensacola, and before the commencement of her voyage.

It is, without doubt, essential to the right of the plaintiff to recover on the policy, that it should be authorized to resort to the freight for the reimbursement of the loan and that this authority should continue unimpaired. For without that there would be no insurable interest in the plaintiff

, and that right depended upon the fact that payment could alone be secured by the earning of the freight through the delivery of the cargo at its port of destination. But as the making of the second loan was without the plaintiff's knowledge or consent, this right or interest was not de. feated by it. The lien or right was created by the loan and the instrument subscribed by the master. It thereby became vested in the plaintiff and the master was incapable of divesting it by any act or wrong on his part short of satisfaction of the debt. The fifteenth regulation did not of itself defeat the interest or lien of the plaintiff's in the event of a subsequent loan. It did no more than to entitle the lender to proceed against the owner and master for the recovery of the loan in case it elected so to do. It was in no sense made obligatory that it should abandon its lien upon, or interest in, the freight if a violation of this regulation should take place by the act alone of the master. The most that was done was to provide another remedy, which the plaintiff was at liberty to follow or not as it elected. It did not elect to accept that remedy, and in its effort to secure it for the defendant's benefit by a suit in Italy against the owners, it was, in fact, defeated. But, to indemnify itself, the plaintiff has asserted and relied upon the continuance of an insurable interest in itself, arising out of the terms upon which the loan was made. And that it was entitled to do, for this right could only be avoided by its own consent or surrender, or a release or satisfaction having the same effect. McKnight v. Dunlop, 1 Seld., 537, 544. The wrong of the master, unsanctioned and unapproved by the plaintiff, it is clear on principle, as well as authority, could not be attended with that result Conrad v. Atlantic Ins. Co., 1 Peters, 386, 437; Ship Virgin, 8 id., 538, 553.

In the cases of Stainbank v. Fenning, 11 Com. B., 51, and Stainbank v. Shepard, 13 id., 418, no maritime lien, or interest, whatever, was at any time created, and no hypothecation of the ship or freight took place. And for that reason they maintain no principle which would turn the plaintiff over to the master and owner personally for indemnity, while in this instance that lien or interest was regularly and legally secured. The Brig Draco, 2 Sumner, 157. And it was not, and could not be, displaced, or contravened, by the wrong of the master, who in no manner represented, or acted for the plaintiff. If it be admitted that it gave the plaintiff another ground of action, it was not bound to resort to it, but it could insist still upon the security which in good faith had been created and provided for it. The Brig Hunter, 1 Ware, 251.

There was no concealment or misrepresentation on the part of the plaintiff, or its agent, affecting its right to resort to the policy for indemnity after the loss of the vessel, neither was there any breach of warranty established. That is not claimed to have arisen, unless it was created by the final, and second loan. But no assurance was given that it should not be made, neither did the policy contain anything prohibiting it, as long as it was without the knowledge or assent of the plaintiff

. The most that was done by the fifteenth regulation was, that if such a loan were made, the plaintiff might then resort to the master and owner personally to recover its money. It was a privilege secured to it

, not a remedy which it was obliged to adopt. No warranty whatever to this effect appears by the policy. And that fact seems fatal to its existence. For it has been held that a warranty, whose breach produces a loss of the insurance, should appear on the face of the policy. It must be evident in terms, or from necessary construction. Jefferson Ins. Co. v. Cotheal, 7 Wend., 72, 80. Ånd neither has here been established. Owens v. Holtand Purchase Ins. Co., 56 N. Y., 565, 572–3; Vilas v. N. Y. Central Ins. Co., 72 id., 590.

Upon no other ground was any defense presented to the plaintiffs action. But its right to recover was legally maintained, and the judgment should be affirmed, with costs.

VAN BRUNT, P. J., and BRADY, J., concur.

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THEODORE E. Macy et al., Resp'ts, v. THE METROPOLITAN

ELEVATED R. Co. et al., App'lts. (Supreme Court, General Term, First Department, Filed January 13, 1891.) 1. TRESPASS—ELEVATED RAILROADS -RELEASE OF EASEMENTS BY LESSEE,

The plaintiffs leased premises to S. Subsequently and before this action S. released to plaintiffs all interest in the street in front of the premises and any easements appurtenant thereto which were assigned by the lease or which the lessee had or which were taken or appropriated by defendants. Held, that under Code Civ. Pro., § 1665, notwithstanding the demise to 8., plaintiffs were entitled to maintain an action for damages caused by the defendants, and were entitled to an injunction, and that the

latter was not to be postponed until the lease expired. 2. SAME.

The release of S.'s interest in the street and easements to plaintiffs was valid. It was not a severance of the easements, but reinvested them in the owner of the land. APPEAL from a judgment rendered at special term. Burrill, Zabriskie & Burrill, for resp'ts; Davies & Rapallo, for

app'lts.

BRADY, J.-This action was commenced June 13, 1889, and resulted in a judgment awarding to the plaintiffs $1,200, for loss of rents, and granting an injunction unless the defendants paid for a conveyance of the easements appurtenant to plaintiffs' premises the sum of $5,000. It is found by the learned judge who presided at the trial that the plaintiffs' testator united, while living, and a member of Macy & Co., in a lcase to one William Simpson, for five years, of the whole of the locus in quo from September 1, 1888, and that the lessee, since that time, had been in possession of the premises. Upon this fact and the time of the commencement of the action, the defendants requested the court to find as follows:

" Twenty-first. On the 28th day of August, 1888, said Theodore E. Macy and Charles H. Macy, comprising the firm of Macy & Co., leased to William Simpson the whole of said property for the term of five years from September 1, 1888, at the yearly rental of $4,200, and said Simpson has since that time been in possession thereof as tenant under said lease." Which was refused. This presents the appellants' first point on the brief, in which it is contended that the judgment should be so modified as to be operative only upon the expiration of the demise to Simpson. It is not disputed that the plaintiffs are entitled to an injunction for the protection of their reversionary interest, but insisted that such interest is amply protected by an injunction which becomes operative when the estate rests in possession. This view is fallacious. The right of the owners of the reversion to protect the inheritance seems to be settled law. The Code of Civil Procedure, $ 1665, provides that a person seized of an estate in reversion or remainder may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years; see, also, Mortimer v. Ei. Ry. Co., 57 Super. Ct., 509; 29 N. Y. State Rep., 262. But, if any doubt exist, it is dispelled by a release from the lessee of all interest in the street and avenue in which the premises are situate, and in any easements appurtenant thereto which were assigned or transferred by the lease, or which the lessee had or owned, or which was taken or appropriated by the Manhattan Elevated Railway Co. or Metropolitan Railway Co. This paper was executed at the request of Mr. Macy, and without consideration. It was regarded by Mr. Simpson as of no value to him, and he signed out of courtesy to Mr. Macy. The facts of its execution and delivery still exist, however, and as Mr. Simpson does not claim any relief in reference to it, and abides by it and its effect, whatever that may be, it is not in the power of the defendants to assail or question it, except as to its legal effects upon the defendants in this proceeding. If it convey nothing to the grantees, it is of no value to them; if it does, it must be placed to their credit

It is not an attempt, however, to accomplish such a separation, but a reunion with the fee in the owner of the fee, being a release of the interest described by the tenant to his landlord, and not a release of the demise itself. In other words, there was no intention to yield the right to light and air as appurtenant to the de

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mise, but to any right to compensation for any attempt to interfere with it and thus to meet what might be regarded as a technical objection to the right of action by the plaintiffs in presenti. There is nothing in the adjudication of Newman v. The Metropolitan El. Co., 118 N. Y., 625; 30 N. Y. State Rep., 36; or Kenkele v. Same, 55 Hun, 400; 29 N. Y. State Rep., 95, affecting the ques. tion discussed. All they decide is that easements cannot be considered as property separate and distinct from the land to which they are appurtenant in the estimation of damages; not that no interest in them can be transferred.

And in Reise v. Enos, 8 L. R. A., 617 (Wisc.), also cited, it appears that the plaintiff was the owner of a lot" known as No. 3, adjacent to which was a lot known as No. 4, across the rear of which there was a right of way appurtenant to lot No. 3. The plaintiff sold lot No. 3 and in the deed inserted this clause:

** It is intended to specially reserve hereby from the operation of this conveyance the right of way to the parties of the first part, their heirs and assigns forever, the free and uninterrupted right of way across the rear of said lots 3 and 4."

It was held that the reservation was ineffectual so far as it concerned the right of way across lot No. 4 for the reason that the grantor had sold lot No. 3 from which the right sprung and could reserve nothing appurtenant to it; he could not separate the easement from the land in other words. This is wholly different from the question considered. The proposition therefore advanced in behalf of the appellants that there was an attempted severance of the easements from the land is not sustained. It is true that an easement separated or attempted to be from the land can be of no value. Here, however, the effect was to re-invest it in the owner of the fee and to transfer an interest in it, not to detach it, and which would enable the owners of the reversion to protect any encroachment upon it.

it. The act seems to be above criticism when the object designed to be secured by it is understood. And again, whether the release granted anything or not its introduction if improper could not have been prejudicial to the defendants. The law gave the right of action to the plaintiffs as owner of the fee notwithstanding the release.

The second point argued is that the judge at special term erred in finding that hot coals, grease and water fell from the defendants' structure and penetrated into and upon the plaintiffs' premises and in finding that disagreeable odors and gases emanated from such structure. This would be technically correct if it be intended to exclude the locomotives as part of the structure, but such is not the finding. That the result of the use of the structure for traffic is to drop and scatter and create these different factors is clearly established by the evidence of several witnesses taken together, namely, Theodore E. Macy, Bates, Elliott, Stemle, Simpson. Runk, O'Halloran, and the second point is not maintained.

There is nothing collaterally discussed on this point which calls for any further examination of it, and it must be overruled.

The third point taken but not discussed is that the judgment should be reversed, but as this is predicate of the first and second points and they have not been sustained, it follows that the judg. ment must be affirmed, with costs.

VAN BRUNT, P. J., and DANIELS, J., concur.

WILLIAM S. FORBES, App'lt, v. THEODORE CHICHESTER, Ex'r,

Resp't.' (Court of Appeals, Filed February 24, 1891.) 1. EXECUTORS AND ADMINISTRATORS—REFERENCE OF DISPUTED CLAIM

DISMISSAL.

In a proceeding upon a claim against a decedent's estate, plaintiff, after producing evidence, rested and defendant then moved to dismiss the complaint on the ground that there was no employment proved at all, and nothing which can justify any such charge as has been made.” The referee rendered a written opinion in which he concluded, after carefully examining the evidence, that a nonsuit was proper and granted defendant's motion. The case was reopened and, on the renewed motion of defendant, the referee dismissed the complaint. Held, that this was a non

suit and not a decision on the merits. 2. SAME.

Plaintiff's evidence showed that decedent invited claimant, a physician, and his wife to accompany him on a trip to Europe and paid their ex. penses, and that he requested to be kept informed of their movements in case he might need professional treatment when they traveled separately, although no professional services were ever rendered. Held, that the referee erred in holding as a matter of law that, upon the evidence adduced, claimant had utterly failed to establish a cause of action, and that the nonsuit was, therefore, improperly granted. APPEAL from judgment of the supreme court, general term, second department, affirming judgment confirming report of referee dismissing plaintiff's complaint in action against decedent's estate for professional services as a physician.

George A. Strong, for app'lt; Walter Edwards, for resp't

O'BRIEN, J.—The plaintiff, a physician of very high professional and personal standing, presented a claim of $5.000 to the defendant as executor of the will of Robert Lenox Kennedy, deceased. The claim having been disputed was referred, under the statute, and the referee reported against it, and the court at special term confirmed the report and directed judgment against the plaintiff, which was affirmed at the general term.

In the year 1887 the plaintiff and his wife accompanied the deceased on a journey to Europe at his request or upon his invitation. The deceased furnished the plaintiff with fifty dollars before starting for the purpose of defraying any small expenses in preparing for the journey, also the passage tickets for himself and wife and a letter of credit for $1,000. The executor resisted the claim, upon the ground that the plaintiff accompanied the deceased on the trip to Europe as an old friend and guest, and not upon an employment professionally. There is some evidence in the case tending to show that the deceased, who was a resident of the city of New York, while visiting in Philadelphia in the early part of the year 1887, consulted the plaintiff professionally and then arranged the trip to Europe. The party sailed on the

* Reversing 30 N. Y State Rep., 370.

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