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influence has been used. The proponents offer to prove by the draftsman of the will, who is an attorney, the instructions received from the testator, and that they were carried out by the will. Is the evidence admissible?

A. Yes. "The draftsman of a will though he is an attorney, is not incompetent under sec. 835 of the Code of Civ. Pro. to testify in support of the will, to the instructions received from the testator in respect to the provisions to be incorporated in the will." Matter of Chase, 41 Hun, 203.

Q. In an action to recover possession of certain property alleged to belong to B who is deceased, his representatives offer in evidence certain declarations made by B. This is objected to on the ground that it is incompetent under sec. 829 of the Code of Civil Procedure. How should the court decide?

Rotten!

A. The evidence should be excluded as the representatives are interested in the action, that is, if they succeed they will get possession of the property, and under sec. 829 of the Code of Civ. Pro., it is incompetent. See Hurlburt v. Hurlburt, 128 N. Y. 420; Sanford v. Ellithorp, 95 N. Y. 48.

Q. A, who is a witness on the trial of B for larceny, is asked by the district attorney if he did not assist B, the defendant, in taking the goods. He refuses to answer the question. Can he be compelled to do so?

A. No, as he is privileged from answering questions which would tend to incriminate him. The rule is stated in sec. 837 of the Code of Civ. Pro., as follows: "A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness."

V Q. A is on trial for murder. His attorney put his wife on the stand as a witness for him. The district attorney raises an objection as to her competency. The objection is sustained by the court, and the wife's evidence is excluded. A is convicted and his attorney appeals on the ground that the court made an error in excluding the testimony of A's wife. Is the appeal good? State your

reasons.

A. The appeal is good, for the wife was a competent witness under sec. 2445 of the Penal Law, which is as follows: "The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage." That the evidence of the husband or wife against the other is admissible, see People v. Petmecky, 2 N. Y. Cr. Rep. 221.

3 Q. A sues B, her husband, for an absolute divorce. On the trial, she takes the stand and attempts to testify as to his adultery. The husband's attorney objects. Is the objection good?

A. Yes, the objection should be sustained. Sec. 831 of the Code of Civ. Pro. provides as follows: "A husband or wife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery."

Q. In certain condemnation proceedings commenced by the city, to take possession of certain lands, it becomes necessary for A to prove his title thereto. He offers an old deed to the land dated fifty years before, and also an old map showing that the land in question belonged to A. He proves that these papers were kept in the place where deeds are kept. The reception of these papers is objected to. What should the court do?

A. The deed and the map should be admitted as ancient documents. "In some cases a map might be receivable in evidence as an

ancient document, but it must purport upon its face to have been executed by competent authority and to have been found in the proper depository of such papers, or to have been made or referred to as a part of the muniments of title of the party in whose favor or against whom it is offered; or, where the maker is dead and it embraces large areas of territory, to have been so generally and publicly recognized to be correct as to afford safe grounds for the presumption that the lot owners in making the conveyances had in view the boundaries and monuments indicated upon it." Donohue v. Whitney, 133 N. Y. 178.

✔Q. The X Corporation began an action against B to recover for certain work. B denied the allegation of the X Corporation and appeared and defended the action. On the trial C and D, president and secretary of the X Corporation, testified to the material facts in issue. There was no other evidence given, and the court instructed the jury to find for the X Corporation. B appeals on the ground that the court erred in directing a verdict for the plaintiff. Who wins on the appeal?

A. B wins. "The general rule is that where a witness is interested in the question, although he is not impeached or contradicted, his credibility is a question for the jury and the court is not warranted in directing a verdict upon his testimony alone. Gildersleeve v. London, 73 N. Y. 609. The same rule applies to the testimony of two witnesses, both equally interested and testifying to the same facts." Saranac R. R. v. Arnold, 167 N. Y. 368.

CHAPTER XIII

Insurance

Q. A delivers some cloth to B to have same made into suits. B insures the same in the X Insurance Company. During the progress of the work, the cloth is destroyed by fire. B puts in his claim for the amount of the insurance. The insurance company refuses to pay, claiming that B had no insurable interest in the goods. B sues the company. Can he recover? Answer fully.

A. B can recover, for he has an insurable interest. Agents, commission merchants, bailees or others having custody of, and being responsible for property, may insure in their own names, and they may, in their own names, recover of the insurer, not only a sum equal to their own interest in the property by reason of any lien for advances or charges, but the full amount named in the policy up to the value of the property. The right is put upon the fact, that having possession of the property, exclusive as to all but the owner to whom they are responsible; they have the right to protect themselves from loss, so that the property or its value may be rendered to the owner when he calls for his own. Waring v. Ins. Co., 45 N. Y. 606.

(NOTE.) A legal or equitable title is not necessary to give an insurable interest in the property; if one has a right which may be enforced against the property, and which is so connected with it that injury thereto will necessarily result in a loss to him, he has an insurable interest. When insurance is upon property, not only must the insured have an interest in the subject-matter of the contract at its inception, but also at the time of the loss, for the contract being one of indemnity, recovery by the insured is limited to the loss actually sustained by him. As soon as his interest ceases in the property, the contract is at an end from the impossibility of any loss happening to him afterwards. Rohrbach v. Ins. Co., 62 N. Y. 47.

Q. A, a stockholder in the X Corporation, insures a certain building belonging to the corporation. The building is destroyed by fire, but the insurance company refuses to pay the loss to A, claiming

that he has no insurable interest in the property. Upon suit by A against the company, what should the judgment be?

A. Judgment for A. It is not necessary to constitute an insurable interest, that the interest is such that the event insured against would necessarily subject the insured to loss. It is sufficient that it might do so, and that pecuniary injury would be the natural consequences. A stockholder in a corporation has such an interest in the corporate property, and so he may protect the same, by an insurance of specific tangible property of the corporation. Riggs v. Ins. Co., 125 N. Y. 7.

Q. A owed B $10,000. B, acting on his own behalf, took out a policy on the life of A and paid the premiums. A died having paid to B the $10,000, and the policy was outstanding. To whom does the policy go?

A. The policy belongs to B, the creditor. Where a creditor procures an insurance upon the life of his debtor, his insurable interest continues although the latter has paid the debt before the debtor's death. The contract of life insurance is not one for indemnity merely, and if the insured had an interest in the life when he took the policy, he may recover although the interest has ceased. Rawls v. Ins. Co., 27 N. Y. 282.

(NOTE.) It is well settled that a creditor has an insurable interest in the life of his debtor, so employers and employees have insurable interests in the lives of each other, so also partners, and near relatives, such as parent and child, sister and brother. The only reason in life insurance for requiring an insurable interest is to eliminate from the contract the character of a wager. Hoyt v. Ins. Co., 3 Bosworth (N. Y.), 440; Grattan v. Ins. Co., 15 Hun, 75. In Wright v. M. B. L. Assn., 118 N. Y. 237, it was held that the plaintiff could recover the whole amount provided by the policy, although the debt owing to the payee by the insured, to secure which the insurance was taken out by the plaintiff, was less than the sum insured.

Q. A insures his life for the benefit of B, his old college friend. A subsequently, with B's consent, assigns the policy to C, a stranger, for $1,000. A dies and C claims the amount of the policy from the company. The company refuses to pay, and C brings suit. The company defends on the ground that C had no insurable interest in the life of A. Judgment for whom and why? State your reasons.