App. Div.]

them. Moreover, such final instruction | fairly permitted them to find, if they saw fit, that there had been such a prior user of the highway as would correspond with the record in question, whereas, as we have indicated, we find no such evidence. We think, therefore, that such a material error was com mitted to the prejudice of plaintiff that he should have an opportunity to have a retrial of his case. Plaintiff's counsel has strenuously argued in his brief that it was error to permit defendant to claim as a defense for his act the agreement between himself and defendant with reference to a removal of the former's fences, and which was the same defense above referred to. It was claimed in substance by defendant that he went to plaintiff claiming that his fences encroached upon the highway; that an agreement was made between them that in the near future for a trifling compensation plaintiff would remove such obstructions to a certain line, and that upon the strength of this agreement plaintiff caused an order to be entered in the town records defining the highway as bounded by such line; that subsequently, when he came to plaintiff's premises to open the highway up to said line, plaintiff refused to carry out his agreement. No written release or agreement was ever executed by plaintiff, and no act of actual dedication of the premises up to the proposed new line was ever made. Plaintiff insists that such an agreement was not sufficient to authorize defendant to open the highway up and remove the encroachments in question. We readily agree that there is doubt whether it would be sufficient to authorize the performance by defendant of the acts complained of if the question were here. Counsel for plaintiff, however, failed properly or adequately to raise this question upon the trial, and it is not, therefore, before us for decision. In view of the conclusions reached by us upon the first question discussed, we regard it unnecessary to consider various other exceptions urged by plaintiff. The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event. McLennan, Spring, Williams and Davy, JJ., concurred. Amelia Russell, Respondent, v. The Prudential Insurance Company of America, Appellant.-Judgment and order affirmed, with costs. McLennan, Spring and Davy, JJ., concurred. Dissenting opinion by Hiscock, J., in which Williams, J., concurred. - This is an appeal from a judgment entered in Onondaga county clerk's office January 15, 1901, upon the verdict of a jury after a trial at the Onondaga Trial Term against the defendant for the sum of $1,131.63, including $101.45 costs; also from an order entered in said clerk's office denying a motion made by said defendant on the minutes for a new trial.

HISCOCK, J.: I am unable to agree with the conclusions reached by a majority of my associates in this case. This action was brought by plaintiff as a beneficiary under an insurance policy claimed to have been issued by the defendant upon the life of her husband, one Robert J. Russell. The defense relied upon at the trial was, in effect, that the initial premium upon said policy was not paid when the latter was delivered or at any time before the insured died, and that, therefore, under its terms the policy never be came valid and binding upon the defendant. The principal legal question involved under said defense upon said trial and upon this appeal was and is whether the defendant was bound by or subsequently ratified the alleged waiver by the agent who delivered

At

said policy of its provisions calling for the payment of such initial premium before it went into effect. The learned trial justice held, as matter of law, in the affirinative upon this proposition. In this respect I think that he fell into such error as to call for reversal of the judgment. December 26, 1899, the deceased made written application to defendant for insurance to the extent of $1,000. Before that date he had taken out another policy for the same sum which, after his death, was paid without contest. In response to such application, under date of December 30, 1899, the defendant in due form, in accordance with said application, wrote the policy of insurance for $1,000 upon said Russell's life, payable to plaintiff as his beneficiary, which is in controversy here. that time one Tennant was its general agent in Syracuse and vicinity where Russell lived, and one O'Donnell was a sub-agent living in Oswego. Plaintiff claimed and testified that upon the evening of January sixth ensuing said two people came to the house of her husband and herself and delivered said policy to the former, in substance agreeing that he might have thirty days in which to pay the first or initial premium called for by the policy, but that the latter should take effect immediately; that the receipt for said premium was made out by Tennant and delivered to him and by him subsequently given back to the other agent O'Donnell. Russell was killed in an accident January tenth following. The above claim and evidence was vigorously and unqualifiedly disputed, and its truthfulness denied by each of said agents. Whatever opinion we may have upon the merits of this particular issue is immaterial, for the jury to whom it was pointedly and carefully submitted by the trial justice has found in favor of the plaintiff's version thereof. The only question for us to consider is whether said arrangement, upon the assumption that it was made, either was valid at the time or subsequently became so by the acts of the defendant. The provisions of the policy distinctly prohibited it, and, therefore, if valid, it was or became so through waiver of such prohibitory provisions either by the agent or the company acting through other channels. The written contract between the insured and the defendant, as evidenced by the policy and the application therefor, absolutely forbade such an arrangement. There is practically no dispute upon this point. The application contained this provision: "And it is further agreed that the policy herein applied for shall be accepted subject to the conditions and agreements therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company and the first premium paid thereon in full while my health is in the same condition as described in this application." The policy contained this clause: In consideration of the application for this policy, which is hereby made part of this contract, and of the quarter annual premium of seven and 02/100 dollars, which it is agreed shall be paid to the Company in exchange for its receipt on the delivery of this policy and on or before the thirtieth day of March, * ** The Prudential Insurance Company of America hereby insures the life of Robert J. Russell," etc. The trial justice instructed the jury that if the agent Tennant did make the arrangement with the insured claimed by plaintiff, then the latter was entitled to recover. This amounted, as we understand it, to holding as matter of law that said agent was authorized to make such arrangement, and this involves a consideration of his

powers. In such consideration we start out with provisions in the policy which, in our opinion, forbade the exercise of such power by him. The policy contained the following:

Regarding Agents.- No agent has power in behalf of the company to make or modify this or any contract of insurance, to extend the time for paying a premium, to waive any forfeiture or to bind the company by making any promise or making or receiving any representation or information. These powers can be exercised only by the President, one of the Vice-Presidents or the Secretary, and will not be delegated." Neither of the agents who visited Russell occupied any one of the offices mentioned. It is claimed in behalf of plaintiff that the clause forbidding an agent

to extend the time for paying a premium did not apply to the initial premium. Our attention has been called to one or more cases holding this proposition. Those cases, however, involved a construction of the particular clauses under consideration and which were not identical in language with the one before us. We see nothing in this clause indicating that it did not apply to the first as well as to subsequent premiums. Independent of this, however, other language in the paragraph quoted enjoined the arrangement claimed to have been made by defendant's agents. The policy of insurance and the application therefor, which presumptively constituted the contract between the parties, as we have seen, expressly provided that the former should not take effect until payment of the first premium. The clause limiting the power of agents, to which we now refer, provided: No agent has power in behalf of the company to make or modify this or any contract of insurance." The arrangement claimed to have been made unquestionably modified the contract of insurance by allowing it to take effect before payment of the first premium. We must, therefore, find a power conferred upon the agent adequate to answer the purposes of plaintiff's case, if at all, not only outside, but in direct contradiction of the provisions of the policy. Plaintiff seeks to find this power in two ways: First, in the written contract between defendant and its agent; second, in the general power with which it really or apparently clothed him. The written agreement made Tennant its "General Agent for Syracuse, N. Y., for the purpose of procuring applications for insurance * * and for the purpose of collecting and paying over premiums to the company on such insurance when effected, and of performing such other duties in connection therewith as may be required by the said party of the first part." It contained the following limitation upon his powers: "It is understood and agreed that the said general agent has no authority on behalf of The Prudential Insurance Company of America to make, alter or discharge any contract, to waive forfeitures, nor to receive any moneys due or to become due to said company, except on policies or renewal receipts signed by the President, Secretary or Manager of the Ordinary Branch and sent to him for collection." Some of the language used in the clause last quoted is similar to that in the policy itself already referred to, and in our judgment the prohibition of power in the agent to "make, alter or discharge any contract" prevented him from performing the act relied upon in this case to make the policy effective. So that we do not believe that the defendant by express contract and arrangement conferred upon Tennant the necessary power to waive payment of the premium. Neither do we

*

[Vol. 73.

find in the record any evidence which indicates that defendant outside of this contract either really or apparently clothed him with such power. It is true that he was designated by defendant as its general agent and it is fair to assume that he exercised general supervision over the management of the routine and details of its business in the neighborhood covered by his agency. It does not appear, however, that he had been accustomed to waive payment of initial premiums or perform other acts kindred thereto with the knowledge and consent of the company. Cases have been cited by counsel for plaintiff holding that a general agent may waive or extend time of payment of premiums; that a general authority might be assumed to go with such a position broad enough to cover such acts. Those cases, however, as we think, have no application here in the face of absolute provisions in the policy which_told and notified the insured that neither Tennant as general agent nor anybody else outside of specific officers named had the power to do the act alleged. There is no question but that an insurance company, as any other principal, has the right to expressly limit and hedge around the powers of its agents, and if it gives notice of these limitations to those with whom it deals they are bound by them in the absence of other acts enlarging or waiving the limitations. We do not think that the defendant in this case, by permitting a different course of conduct upon the part of its agent, clothed him with greater powers in the respect under consideration than were expressly delegated to him or broke down the barriers which it had put up around his authority. Therefore, to sum up this branch of the case, the undisputed evidence establishes in our minds that the policy issued to plaintiff's husband by its terms did not take effect until the first premium was paid; that it likewise prohibited the defendant's agents from making such a contract as is claimed waiving this provision; that there is nothing either in the defendant's express contract with its agent or in the powers with which it had really or apparently clothed him outside of this contract which overruled the restrictions in the policy upon his power and enabled him to make such waiver; and that, therefore, it was error to instruct the jury as matter of law that if Tennant did extend the time of payment of the first premium plaintiff was entitled to recover. Plaintiff's counsel has called to our attention some cases holding in effect that where an agent of an insurance company had made a contract of insurance in violation of some provision in the policy, the company would be deemed to have waived such provision; that otherwise a fraud would be committed upon the insured by purporting to make a contract which really could not be enforced and would be no contract at all. Those cases were necessarily decided upon the facts which therein ap peared, and we think that this case is distinguished from them in the respect that the policy and the application which the insured had, and which he must be deemed to have read, expressly notified him that the agent who was extending the time of payment of the premium and purporting to waive the provisions of the policy of insurance, had no power to do it. No fraud was committed upon the insured when he attempted to bind the defendant in derogation of its rights by dealing with an agent who he knew, or ought to have known, had no power in the premises. While it perhaps was not explicitly held upon the trial, it was rather intimated and

73

a174 NY 179

Case 17

ten dollars costs and disbursements. All concurred. Thomas G. Frothingham and William E. Smith, Appellants, v. David Wolff, Respondent.-order affirmed, with ten dollars costs and disbursements. All concurred. In the Matter of the Application of Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 12,899, Issued to Felix Famularo, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Herman Bartels, Respondent, v. William T. Hamilton and Fanny M. Hamilton, Appellants, Impleaded with Francis W. Gridley.Order affirmed, with ten dollars costs and disbursements. All concurred. Sweets Steel Company, Respondent, v. Thomas M. Farley, Appellant.- Order affirmed, with ten dollars costs and disbursements on one appeal. All concurred.

Battese Revoir, Appellant, v. George B. Leonard, Respondent.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Ella D. Spencer, as Administratrix, etc., of Frank Spencer, Deceased, Appellant, v. The Town of Sardinia, Respondent.- Order affirmed, with costs, on opinion of Hardin, P. J., in same case reported in 42 Appellate Division, 472. All concurred, except Hiscock, J., not voting.

Charles Cohen, Respondent, v. Thomson-Houston International Electric Company, Appellant.- Motion for leave to appeal to the Court of Appeals granted and questions for review to be settled before Mr. Justice Williams upon five days' notice.

In the Matter of the Judicial Settlement of the Account of Frank H. Armstrong, as Executor, etc., of Julia A. Whitney, Deceased. Frank H. Armstrong, Individually, and as Executor, etc., of Julia A. Whitney, Deceased, Appellant; Orlando Odell and Others, Respondents.- Decree of Surrogate's Court affirmed, with costs against the appellant personally. All concurred.

The People of the State of New York ex rel. Michael B. McTigue, Appellant, v. Harry L. Allen, as Justice of the Peace, Respondent.Order affirmed, with ten dollars costs and disbursements. All concurred. Third National Bank of Syracuse, Respondent, v. Arthur J. Keeffe, Impleaded, etc., Appellant. Motion granted unless the appellant, within thirty days, makes, files and serves his case and printed papers on appeal and pays ten dollars costs of this motion, in which event the motion is denied. George L. Butterfield and Caroline G. Corse, as Executors, etc., of Sophia A. Searles, Deceased, Respondents, v. Frank Nichols, Appellant, and Jefferson County Orphan AsyJum, Respondent, Impleaded with Others. Judgment and order affirmed, with costs. All concurred.

In the Matter of the Appraisal under the Act in Relation to Taxable Transfers of Property of the Property of J. Lee Judson, Deceased. The Comptroller of the State of New York, Appellant, v. Mary Mack Judson, as Execu trix of J. Lee Judson, deceased, and Individually, and Others, Respondents.- Decree of surrogate affirmed, with costs. All concurred, except Adams, P. J., not voting. Charles T. Terry, Respondent, v. Henry F. Granger, Appellant.- Judgment affirmed, with costs. All concurred.

Philo C. Hubbell, Appellant, v. Nellie Henrickson, Respondent, Impleaded with Others.Judgment affirmed, with costs. McLennan, Spring and Davy, JJ., concurred; Williams

[Vol. 73.

and Hiscock, JJ., dissented upon the ground that the plaintiff is entitled to be protected as to the $1,000 received upon the mortgage. Jefferson County National Bank, Plaintiff, v. Margaret A. Townley, Respondent, Impleaded with Others. Addice E. Dewey, Appellant.-Order affirmed, with ten dollars costs and disbursements. All concurred, except Adams, P. J., not voting.

Alfred Murphy, Respondent, v. The Village of Seneca Falls, Appellant. - Judgment and order affirmed, with costs. All concurred. Bertha Albring, as Administratrix, etc., Re spondent, v. The New York Central and Hudson River Railroad Company, Appellant.

Order reversed and new trial ordered, with costs to the appellant to abide event, upou questions of law only, the facts having been examined and no error found therein. All concurred. In the Matter of the Final Judicial Settlement of the Accounts of Watson Turner as Guardian of the Property of Earl R. Pinckney.Motion to dismiss appeal denied, without costs. Notice of appeal amended by inserting after the words "Watson Turner" the words "by Willard Turner, his committee." and also in the signature of the notice of appeal by adding after the words "Eugene É. Sheldon, attorney for appellant Watson Turner," the words “by Willard Turner, his committee."

In the Matter of the Application of Catharine Ditner to Compel the Substitution of an Attorney in an Action Entitled, George Zeres and Another against Catharine Ditner.Motion denied, without costs. Melinda Bietz, Respondent, v. The City of Auburn, Appellant.-Judgment and order affirmed, with costs. All concurred. Emma A. Rice, Respondent, v. Metropolitan Life Insurance Company, Appellant.-Judg ment and order affirmed, with costs. concurred, except McLennan, J., dissenting. In the Matter of the Probate of the Last Will and Testament of Lydia H. Porter, Deceased. Decree of Surrogate's Court affirmed, with costs against the appellant personally. concurred.

All

All

Frank R. Lenox, Appellant, v. Frederick D. Zimmerman, Respondent.-Judgment and order of County Court affirmed, with costs. All concurred, except Adams, P. J., and Hiscock, J., dissenting. Gugliemo Marchese, as Administrator, etc., of Rosa Marchese, Deceased, Respondent, v. The Bell Telephone Company of Buffalo, Appellant.- Judgment and order affirmed with costs. All concurred. Charles S. Klock, as Administrator, etc., of Edgar J. Throop, Deceased, Appellant, T. United States Radiator Company, Respondent. Judgment and order affirmed, with costs. All concurred.

concurred.

Henry Stradtman, Respondent, v. Frank F. Williams, Appellant. Judgment and order of County Court affirmed, with costs. Ali Frank J. Bissing, Respondent, v. Julia Billups, Appellant.- Judgment affirmed, with costs. All concurred.

William C. Burgess, as Mayor, etc., and Others, Respondents, v. Joseph Bryant and Others, Appellants. Judgment affirmed, with costs. All concurred.

Carl Jobst and Others, Respondents, v. Thomas Myers and Others, Appellants. Order ap pealed from modified by providing that a commission upon interrogatories be issued to the commissioner named in such order, for the examination of witnesses to be specifically designated, and as thus modified affirmed, without costs of this appeal to either party. The order to be settled by and

App. Div.]

before Adams, P. J., upon two days' notice. All concurred.

Heman S. Brewer v. William J. Gilman.- Motion denied, with ten dollars costs, the case having been submitted in open court as to Mr. Justice McLennan.

Carl Meyer and Another, Respondents, v. William R. Haven, Appellant. The New York Central and Hudson River Railroad Company, Respondent.- Motion to amend order of reversal granted, without costs, and the amended order settled and entered.

73

Case 3 71 NY 566

PER CURIAM: The judgment appealed from should be reversed and judgment ordered for the plaintiff for one penalty of fifty dollars, with costs. The Mileage Book Act (Laws of 1896, chap. 835 amdg. Laws of 1895, chap. 1027) was not unconstitutional as to the defendant for the reason stated by the trial court. Even though unconstitutional as to the New York, Lake Erie and Western Railroad Company, and though the defendant, upon its incorporation, succeeded to all the rights of the old company, yet the defendant, when organized, was a new corporation, and took the rights of the old company subject to all the provisions, duties and liabilities imposed by law upon railroad corporations generally. The incorporation of the defendant was a privilege granted by the State, and not a right, and when it availed itself of this privilege it subjected itself to all the conditions imposed upon it by the act under which the incorporation was had. (See Laws of 1892, chap. 688, § 3). The Mileage Book Act is not unconstitutional as to corporations organized, as the defendant was, after the act was passed. (See Purdy v. Erie R. R. Co., 162 N. Y. 49; Norfolk & Western R. R. Co. v. Pendleton, 156 U. S. 667.) Present Adams, P. J., McLennan, Spring, Williams and Hiscock, JJ.

Nellie I. Grower, as Administratrix, etc., of George M. Grower, Deceased, Respondent, v. The New York Central and Hudson River

Railroad Company, Appellant.- Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. Held, that plaintiff's intestate was guilty of contributory negligence in not detecting the approach of the defendant's train. All coucurred, except McLennan, J., who concurred in result upon the ground that the finding of the jury that plaintiff's intestate was free from contributory negligence was against the weight of the evidence, and Adams, P. J., who disseuted upon the authority of Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 402); Henavie v N. Y. C. & H. R. R. R. Co (166 N. Y. 280); Zwack v. N. Y., L. E. & W. R. R. Co. (160 id. 362).

The People of the State of New York, Respond ent, v. Fred Gibbons, Appellant.-Judginent of conviction affirmed and case remitted to the County Court of Jefferson county pursuant to section 547, Code of Criminal Procedure. All concurred.

De Wane B. Smith and Mary A. Smith. Respondents, v. John Wanamaker and Others, Appellants, Impleaded with Others. - Judg ment affirmed, with costs. All concurred. Etta Russett, Respondent, v. The Town of Car

rollton, Appellant.- Judgment and order affirmed, with costs. All concurred.

The People of the State of New York, Respondent, v. Franklin Fitch, Appellant.Judgment of conviction affirmed and case remitted to County Court of Cattaraugus county pursuant to section 547, Code of Criminal Procedure. All concurred. Caroline D. Connor, Plaintiff, v. Village of Wolcott, Defendant.- Plaintiff's exceptions overruled and motion for new trial deniedwith costs, and judgment ordered for the defendant on the dismissal of the complaint, with costs. All concurred.

In the Matter of Samuel H. Manson, an Attorney and Counselor.- Ordered, that an order issue, returnable before this court on the eighth day of July next, at two o'clock in the afternoon, requiring said Samuel H. Manson to show cause why he should not be disbarred from the practice of his said profession of attorney and counselor; that a copy of the charges presented against said Manson, to gether with a copy of the order to show cause, be personally served upon him within this State at least ten days before the return of said order to show cause, or, in case personal service of said Manson cannot be made then that copies of said charges and order to show cause be deposited in the post office in the city of Buffalo, securely sealed in a post. paid wrapper, addressed to said Manson at his last-known place of residence, and a copy of such order to show cause published once in each week for three successive weeks in the following newspapers published in the city of Buffalo and county of Erie, to wit, the Buffalo Express and the Buffalo Com mercial and Advertiser, such publicatiou to be completed an sservice by mail made within the time above provided for personal

service.

In the Matter of John Wartman, an Attorney and Counselor. - Ordered, that an order issue, returnable before this court on the eighth day of July next, at two o'clock in the afternoon, requiring said John Wartman to show cause why he should not be disbarred from the practice of his said profession of attorney and counselor; that a copy of the charges presented against said Wartman, together with a copy of the order to show cause, be personally served upon him within this State at least ten days before the return of said order to show cause, or, in case personal service on said Wartman cannot be made, then that copies of said charges and order to show cause be deposited in the post office in the city of Buffalo, securely sealed in a postpaid wrapper addressed to said Wartman at his last-known place of residence, and a copy of such order to show cause published once in each week for three successive weeks in the following newspapers published in the city of Buffalo and county of Erie, to wit, the Buffalo Express and the Buffalo Commercial and Advertiser, such publication to be completed and service by mail made within the time above provided for personal service.