« AnteriorContinuar »
(181 N. Y. 92) . .
| the certificate of insurance, did unlawfully, ROSSENBACH V. SUPREME COURT
wrongfully, and falsely represent and state to 1. O. F.
the medical examiner, among other things, (Court of Appeals of New York. Feb. 13, 1906.) that he did not drink wine, spirits, or malt 1. WITNESSES — CROSS-EXAMINATION -CRED liquors, and that he never had been intoxiIBILITY.
cated. The answer further alleged that the In an action on a life insurance certificate, defendant claimed that the answers to ques
defendant relied upon said representations, tions in the application as to insured's use of and believed them to be true, and that it was intoxicating liquors were false, and there was thereby induced to accept the deceased as a evidence that he was an habitual user of in
member of its order, and issue to him said toxicating liquors, had been convicted therefor, and confined in the penitentiary. Plaintiff testi
certificate; that in fact and in truth said fied that the answers were made without the statements were false and untrue, and that knowledge or consent of the insured, and that
they were made by the deceased with a preshe had never seen him intoxicated. Held, that the exclusion of a question on. cross-examina
conceived purpose of cheating and defrauding tion, as to whether she had ever seen him in the defendant in obtaining admission into the penitentiary, was reversible error.
its order and said certificate of insurance. 2. SAME. .
The issues joined by the pleadings were tried Where, in an action on a life certificate,
before the court and a jury found in favor of plaintiff's son testified that he had known the insured all his life, and had never seen him in
the plaintiff, and the judgment entered thereon toxicated, exclusion of a question on cross-ex has been unanimously affirmed by the Apamination as to whether he had ever talked
pellate Division. The only questions remainwith plaintiff about having a complaint made
ing for our consideration are those arising against the insured for intoxication was reversible error; the question materially affecting
upon the exceptions taken upon the trial. the credibility of the witnesses.
In the assured's statement to the medical exAppeal from Supreme Court, Appellate aminer, presented with his application for Division, Fourth Department.
membershipand insurance, the answer "No" Action by Theresa Rossenbach against the is given to the following questions: "Do you Supreme Court of the Independent Order of
drink wine?” “Do you drink spirits?" "Do Forresters." From a judgment of the Appel you drink malt liquors?" "Have you been inlate Division (90 N. Y. Supp. 1112,98 App. Div. toxicated within the past five years?" To the 634), affirming a judgment for plaintiff, de the question, "When was the last occasion ?” fendant appeals. Reversed..
the answer"Never" is given, and to the See 73 N. E. 1132.
further question, “What has been your habit
in this respect during life?" Q. P. Stockwell, for appellant. George V.
"Temperate" is given. The plaintiff asserted Fleckenstein, for respondent.
upon the trial that the assured did not make CHASE, J. The plaintiff is the beneficiary said answers to the questions relating to the named in a certificate or policy of insurance use of intoxicating drinks, but that the issued by the defendant to her brother, one of medical examiner of the defendant placed the its members. On the 10th day of October, answers to said questions in said statement 1900, the assured made application for mem presented with his application for membership bership in the defendant, and for fraternal without asking him such questions and with. insurance of $2,000. The application was ac out the knowledge or consent of the assured. cepted, and the assured was initiated into the Many witnesses were sworn by the defendant order November 22, 1900. The certificate of to show that the assured was an habitual user insurance is dated December 18, 1900, and of intoxicants, and that he was repeatedly was delivered December 27, 1900. Prior to and almost continuously intoxicated for sevthe execution and delivery of the certificate, eral years prior to his death, and that on two and on the 12th day of December, 1900, the occasions, once in December, 1897, and again assured was committed to the State Hospital in October, 1899, he was arrested and confor the Insane at Rochester, and remained victed for public intoxication, and that on there until October 27, 1901, when he died. each occasion he served his sentence therefor The defendant refused to pay the amount of in the penitentiary at Rochester. The plainthe certificate, and the plaintiff brought this tiff claimed on the trial that the defendant action thereon. The defendant by its answer had not shown that the person confined in alleged in substance that the assured, as a the penitentiary for public intoxication, alcondition of being admitted into membership though bearing the name of the assured, was of the defendant, promised and agreed that if in fact the assured. The plaintiff was sworn he should make any false representations in as a witness, and testified that the deceased his application or written statement to the was employed at her husband's store for medical examiner or conceal any mental or about two years prior to being taken to the physical infirmity or.. fail to disclose any hospital, and that he had his dinner at her material fact relating to bimself, he would house every day during that time, and that ipso facto forfeit all payments that he had she saw him on each of those occasions. She made to the defendant, and all benefits that further testified that she never saw him inbe or his beneficiaries would otherwise be en toxicated, and that she never saw him drink titled to receive. The answer further alleged intoxicating liquors, except one glass of beer that the deceased, for the purpose of obtaining | several years prior to his death. On cross
examination she was asked the question : 1 held by it in trust, or sold, but not delivered, “Did you see Marzhauser (assured) in the
for which it might be held liable, and thereafter
sold and delivered the glass, agreeing that all penitentiary in this city at any time?” The
glass manufactured by it within a specified time question was objected to, without specifically should be the property of the vendee as soon as stating the reason therefor, and the objection manufactured, and subject to the latter's order,
meanwhile to be stored in warehouses of inwas sustained and defendant excepted. Plain
sured leased to vendee for that purpose, the tiff's son was also sworn as a witness on
insured to assume responsibility for all loss behalf of the plaintiff, and he testified that he except “loss by fire," the glass to be insured by lived with the plaintiff, and that he had the vendee; the vendor, however, to pay the known his uncle, the assured, all his life, and
premiums. On destruction of the property by
fire, held, in an action on the policy by an asthat he never saw him intoxicated or drink signee of the insured, that the entire insurable intoxicating beverages. He was asked, on interest in the property was in the vendee, and cross-examination: “Did you talk with your
the fact that the vendor was the custodian of mother about having a complaint made
the property did not show that it was held in
trust within the meaning of the policy. against him for intoxication at that time?" — the time referred to was the year or two
Appeal from Supreme Court, Appellate Diduring which the assured had bis dinners at
vision, Fourth Department. the plaintiff's house. The plaintiff objected
Action by William E. Burke against the to this question, upon the ground that it was
Continental Insurance Company of the city immaterial, incompetent, and irrelevant, and
of New York. From a judgment of the Apthe objection was sustained, and the defend.
pellate Division (91 N. Y. Supp. 402, 100 App. ant excepted.
Div. 108), affirming a judgment for plaintite, The principal questions litigated on the
defendant appeals. Reversed. trial and left to the jury for their determination were: First, whether the assured gave J. H. Metcalf and Olarence M. Bushnell, the answers appearing in said statement re | for appellant. Moses Shire, for respondent lating to his use of intoxicating liquors, as claimed by the defendant, or whether they
BARTLETT, J. This action was brought were written therein by the defendant's
to recover on a policy of fire insurance for medical examiner without the knowledge or
$2,500 issued by the defendant to the D. 0. consent of the assured; and, second, if the
Cunningham Glass Company of Pennsylvania, answers were in fact given by the assured
a corporation engaged in the manufacture of as shown in bis said statement, whether they
glass at Pittsburg. The plaintiff sues as the were true. The question to the plaintiff was
assignee of the above company. The only material upon the identity of the person con
defense now insisted upon is that the Cunfined in the penitentiary for public intoxica
ningham Company fraudulently misrepresenttion and as affecting the good faith and
ed that it owned the glass claimed in its credibility of the plaintiff as a witness. If the
proofs of loss, and therefore the defendant plaintiff's son discussed with her the question
was not liable. as to the advisability of having the assured
The policy was issued on the 4th of May, arrested for intoxication, it would materially
1900, for the term of one year for “$2,500 on affect the weight to be given to his testimony
stock of window glass and packages containin contradiction of the testimony of the de
ing the same, his own, or held by him in fendant relating to the assured's continued
trust, or sold but not delivered, for which he and excessive use of intoxicants. As these
may be held liable; all while contained in any questions were clearly intended to elicit tes
or all of the brick and frame buildings, and timony materially affecting one of the ques
on premises of the assured occupied for the tions seriously litigated on the trial, the re
manufacture of window glass, situate boundfusal to allow the questions to be answered
ed on the north by James street, on the east cannot now be said to have been immaterial,
by S, 27th street, on the south by Mary street, The judgment should be reversed, and a
on the west by S. 26th street, Pittsburg, new trial granted, with costs to the appellant
Pennsylvania.” A fire occurred on April 3, to abide the event.
1901, and the property described in the policy CULLEN, C. J., and GRAY, O'BRIEN,
was lost or damaged to the amount of $4,BARTLETT, and WERNER, JJ., concur.
646.62. The proportion of the loss payable unHISCOCK, J., not sitting.
der the policy here involved was $129.43, there
being other companies on the risk. It is Judgment reversed, etc.
claimed by the defendant that, notwithstand
ing the small amount involved in this action (184 N. Y. 77, 570)
the question is of importance. After the isBURKE V. CONTINENTAL INS. CO. OF
sue of this policy, and on the 19th of DecemCITY OF NEW YORK.
ber, 1900, the D. 0. Cunningham Glass Com(Court of Appeals of New York. Feb. 13, 1906.
pany, as party of the first part, entered into On Rehearing, March 13, 1906.)
a written agreement with the Independent INSURANCE-LOSS BY FIRE-PROPERTY HELD
Glass Company, as party of the second part IN TRUST.
The owner of a stock of glass on hand in a corporation created under the laws of the qured it under a policy covering its own or that l state of New Jersey, which was "incorporated
for the purpose of conducting and carrying on, al named for this purpose. The Cunningham the business of buying, selling, operating, and Company had the title to no glass whatever dealing in window glass and other business manufactured or to be manufactured, and incident thereto." Among other provisions all glass was stored in warehouses leased in said agreement are the following: “That by it to the Independent Company. The sole the said party of the first part in considera- interest remaining in the Cunningham Comtion, etc., has bargained and sold, and does | pany was that they were “responsible and llahereby bargain and sell unto the party of the ble for, and charged with the custody and second part all window glass, which said safety of the glass so to be stored in the party of the first part has heretofore manu warehouse or buildings aforesaid, and with factured, and has on hand at the date hereof, any and all loss thereof or damage thereto, or was manufactured or caused to be manu except loss by fire.” Its custody of the propfactured during the year ending December | erty was that which vests in any watchman 31, 1902, at the price," etc. "All said glass or caretaker. The glass was to be insured to be delivered and become the property of by the Independent Company, but the premithe party of the second part as soon as manu ums paid by the Cunningham Company. As factured; the same to be delivered on cars, or caretaker, the Cunningham Company was shipped on the orders of the party of the sec charged with the custody and safety of the ond part, or stored in the warehouses, or glass so stored, and with any and all loss elsewhere on property of the party of the first and damage thereto, except by fire. If any part for shipment thereafter by the party of
of the glass had been stolen by a person the first part upon orders or directions given breaking into the building and carrying it by the party of the second part, and for this away, or if a trespasser upon the premises purpose the said party of the first part does bad broken or destroyed any portion of the hereby lease and let unto the party of the glass, the Cunningham Company would have second part, for the purpose of storing its been liable, and to the extent of that interglass as aforesaid at a rental of $1, its ware est in the property it could have insured house or warehouses, or other buildings in against the loss in any company taking such which the same may be stored, situate at a risk. To say that the Cunningham ComPittsburg, Pa. * * * The said party of pany under these circumstances could insure the first part shall until said glass is subse against loss and damage by fire is to ignore quently shipped upon the orders of the said the plain provisions of this agreement, as it party of the second part, be responsible and could suffer no loss by the destruction of liable for and charged with the custody and the glass by fire. safety of the glass so to be stored in the The policy undoubtedly contemplates cerwarehouse or buildings aforesaid, and with tain changes in title of the property which any and all loss thereof or damage thereto, was originally insured by the Cunningham except loss by fire. * * * Said glass shall Company as absolute owner. It is first probe insured by the party of the second part, vided that if it is held “in trust” the insurthe premiums of insurance, however, shall be ance remains good. The words “in trust" paid by the party of the first part."
have been given a very broad and liberal The appellant argues that the agreement construction by this court, and it was held between these companies was an absolute that they "are not to be taken in any strict and unconditional change in the interest, technical sense, which would limit their opetitle, and possession of the subject of insur- ration to cases where the title to goods had ance, and rendered the policy void. Also, been vested in a trustee subject to some spethat the words in the policy, "his own or cific trust to be executed by him. . * held by him in trust, or sold but not de. The words 'in trust may, with entire proprilivered, for which he may be held liable," ety, be applied to any case of bailment where do not permit an absolute sale and delivery the goods belonging to one person are enas was made to the Independent Glass Com trusted to the care of another, for which pany. The situation after the execution of the bailee is responsible to the owner." Stillthe agreement is briefly this: The Cunning. well v. Staples, 19 N. Y. 401, 403. The conham Company sold absolutely and delivered trolling words in the above quotation are to the Independent Glass Company all the "for which the bailee is responsible to the glass it then had on hand, and, further, all owner.” In the case before us if there had the glass it should make from the date of the been a loss by theft or through the careless agreement until the 31st of December, 1902, or malicious act of a trespasser, the Cunningwas to become the property of the Independ. | ham Company was responsible to the owner ent Glass Company as soon as manufactured. under such conditions as caretaker. It canThis manufactured product was to be shipped not, however, be said, under a reasonable to the Independent Company from time to construction of the agreement, that the Cuntime according to its directions, and in the ningham Company held this in trust for the meantime was to be stored in the warehouses Independent Company so as to enable it to of the Cunningham Company, which were recover in case of loss by fire. It had no leased to the Independent Company at a rent- title to the property; it had leased its warehouses for the storage of the same, and rest. I MEMORANDUM DECISIONS ed only under a very limited liability. The next provision of the policy covers property "sold but not delivered," for which the insured is liable. This property had been both ANDRUS. Respondent, v. NATIONAL SUGsold and delivered. We are of opinion that
AR REFINING CO. et al., Appellants. (Court
of Appeals of New York. Jan. 30, 1906.) the Independent Company was vested with the
Appeal from a judgment of the Appellate Divititle and entire insurable interest in this sion of the Supreme Court in the Second Judiproperty in case of loss by fire; that it was
cial Department (93 App. Div. 377, 87 N. Y.
Supp. 671), entered May 7, 1904, modifying, its duty under the express provisions of the
and affirming as modified, a judgment in favor agreement to take out the policy of insurance of plaintiff entered upon a decision of the court. in its name, the Cunningham Company paying on trial at Special Term. Ralph E. Prime and
Charles C. Paulding, for appellants. Isaac N. the premiums.
Mills, for respondent.'. The judgments of the Trial Term and Ap
PER CURIAM. Judgment affirmed, with pellate Division should be reversed, new trial costs. " ordered; costs to abide the event.
CULLEN. C. J., and O'BRIEN, HAIGHT,
VANN, WERNER, and HISCOCK, JJ., concur. CULLEN, C. J., and GRAY, O'BRIEN,
BARTLETT, J., not sitting.
BACHMAN, Respondent, v. HARRINGTON, Judgments reversed, etc.
Appellant. (Court of Appeals of New York.
the Appellate Division of the Supreme Court in On Rehearing. !
the Fourth Judicial Department (95 N. Y.
Supp. 1113), entered October 11, 1905, which PER CURIAM. Our opinion reversing the | affirmed an order of Special Term adjudging the judgments below rested on the single point
defendant guilty of contempt of court. George
D. Forsyth, for appellant. Hugh J, O'Brien, that the Independent Company was vested
for respondent. with the title and entire insurable interest PER CURIAM. Appeal dismissed, with in this property in case of loss by fire; that costs. it was its duty under the express provisions
CULLEN, C. J., and GRAY, 'O'BRIEN, of the agreement to take out the policy of
BARTLETT, HAIGHT, VANN, and WER
NER, JJ., concur, insurance in its name, the Cunningham Company paying the premiums. · The plaintiff bases this motion for reargument on the
BALDWIN et al., Appellants, v. RICE et al., ground that the court overlooked the fourth Respondents. (Court of Appeals of New York. finding of fact, which reads as follows: Feb. 6, 1906.) Motion for reargument. See 183 “That after said contract was entered into,'
N. Y. 55, 75, N. E. 1096. John Brooks Leavitt,
Jared F. Harrison, and Arthur B. Turnure, for and before the fire hereinafter referred to.
the motion. James Byrne and Charles A. BosL. Springer Cunningham, then treasurer and ton, opposed. manager of the Cunningham Company, and PER CURIAM. In our disposition of the one Sayre, then vice president and treasurer
appeal in this case we did not misconceive the
question involved, as is now contended by the of the Independent Company, on behalf of
the learned counsel for the appellants with their respective companies, entered into a rather more heat than we think warranted. We parol agreement whereby the said Cunning held, with the courts below, that the letters of
administration were clearly ancillary in charham Company assumed liability to the Inde
acter. and that. so considered. they were void. pendent Company for any loss by fire to the as. in securing their issue, the appellants bad property described in said policy of insur failed to comply with the provisions of the Code ance to the amount to which this defendant
of Civil Procedure. We add to the opinion al
ready published (183 N. Y. 55, 75 N. E. 1096) would be liable to the insured under said that the order directing the issue of letters conpolicy of insurance."
tained' provisions that made the letters limited It is difficult to understand how the coun and ancillary on their face. The motion for resel for plaintiff reaches the conclusion that
argument should be denied, with $10 costs.
- CULLEN. C. J., and GRAY, O'BRIEN, the court overlooked this finding of fact when
, BARTLETT, HAIGHT, VANN, and WER: it was fully discussed in both briefs. The NER, JJ., concur. ;: fact that certain points made upon argument are not discussed in the opinion does not warrant the conclusion that they were over
BANTA, Respondent, V. MERCHANT, Ap
pellant. (Court of Appeals of New York. Dec. looked. The fourth finding of fact is without
15, 1905.) Appeal from a judgment of the Apevidence to support it, and the motion for re pellate Division of the Supreme Court in the argument should be denied, with $10 costs. Third Judicial Department (95 App. Div. 619,
88 N. Y. Supp. 1091), entered May 10, 1901.
affirming a judgment in favor of plaintiff entered CULLEN. C. J., and GRAY, O'BRIEN, upon a verdict and an order denying a motion BARTLETT, WERNER, HISCOCK, and
for a new trial. T. B. Merchant and L. M. CHASE, JJ., concur.
Merchant, for appellant. Israel T. Deyo, for
respondent. Motion denied
PER CURIAM. Judgment affirmed, with costs,
CULLEN, C. J., and GRAY, O'BRIEN, 1 out a jury. J. Harry Hull, for appellant. BARTLETT, HAIGHT, VANN, and WER: Frederick P. James, for respondent. NER, JJ., concur.
PER CURIAM. Judgment affirmed, with costs.
CULLEN, C. J., and GRAY, BARTLETT, BARBER, Respondent, v. DEWES, Appellant. HAIGHT, VANN, and WERNER, JJ., con(Court of Appeals of New York. Feb. 27,
cur. O'BRIEN, J., absent. 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (101 App. Div. 432, 91
BIRNBAUM, Appellant, V. RACICH, ReN. Y. Supp. 1059), entered February 23, 1905,
spondent. (Court of Appeals of New York. affirming a judgment in favor of plaintiff enter.
Jan. 23, 1906.) Appeal from an order of the ed upon a verdict an order denying a motion
Appellate Division of the Supreme Court in for a new trial. Nelson Zabriskie, for appel
the First Judicial Department (108 App. Div. lant. Frank G. Wild, for respondent.
367, 95 N. Y. Supp. 1114), entered November PER CURIAM. Judgment affirmed, with 24, 1905, which affirmed an order of Special costs.
Term denying a motion for an order directing CULLEN, C. J., and GRAY, EDWARD T. | the guardian herein to pay over a certain sum BARTLETT. HAIGHT. VANN, WILLARD | of money to the petitioner and dismissed BARTLETT, and CHASE, J., concur.
ceeding. T. M. Tyng, for appellant. John Vernou Bouvier, Jr., for respondent.
PER CURIAM. Order affirmed, with costs. BARTLEMES, Respondent, V. LATHROP CULLEN, C. J., and O'BRIEN, HAIGHT, et al., Appellants. (Court of Appeals of New VANN, WERNER, BARTLETT, and HISYork. Oct. 27, 1905.) Appeal from a judgment COCK, JJ., concur. of the Appellate Division of the Supreme Court in the Fourth Judicial Department (100 App. Div. 512, 91 N. Y. Supp. 1086), entered January BLANCHARD, Respondent, V. SAVARESE 20, 1905, affirming a judgment in favor of plain et al., Appellants. (Court of Appeals of New tiff entered upon a verdict and an order deny York.' Feb. 16, 1906.) Appeal from a judging a motion for a new trial. Clinton B. Gibbs, ment of the Appellate Division of the Supreme for appellants. Thomas A. Sullivan and Fred Court in the Second Judicial Department (97 erick G. Bagley, for respondent.
App. Div. 58, 89 N. Y. Supp. 664), entered PER CURIAM. Judgment affirmed, with August 3, 1904, affirming a judgment in favor costs.
of plaintiff entered upon a verdict and an order CULLEN, C. J., and GRAY. BARTLETT, denying a motion for a new trial. Albert M. HAIGHT, VANN,' and WERNER, JJ., concur.
Yuzzolino and Lorenzo Ullo, for appellants. O'BRIEN, J., absent.
Isaac N. Mills, for respondent.
PER CURIAM. Judgment affirmed, with
costs. In re BENEDETTO. (Court of Appeals of CULLEN, C. J., and GRAY, O'BRIEN, New York. Dec. 5, 1905.) Appeal from an BARTLETT, WERNER, HISCOCK, and order of the Appellate Division of the Supreme CHASE, JJ., concur. Court in the First Judicial Department (98 App. Div. 623, 90 N. Y. Supp. 1088), entered November 17, 1904, which affirmed an order of BLANDING et al., Respondents, v. COHEN, Special Term granting a motion to cancel and Appellant. (Court of Appeals of New York. discharge of record a certain judgment hereto Feb. 16, 1906.) Appeal from a judgment of the fore recovered by the appellant against the pe Appellate Division of the Supreme Court in the titioner. Edward McKinley and Charles B. First Judicial Department (101 App. Div. 442, Mason, for appellant. Franklin Pierce, for re 92 N. Y. Supp. 93), entered February 18, 1905, spondent.
affirming a judgment in favor of plaintiffs. enPER CURIAM. Order affirmed, with costs. tered upon a verdict directed by the court.
CULLEN. C. J., and GRAY, O'BRIEN, Charles L. Hoffman and Henry A. Friedman, BARTLETT, HAIGHT, VANN, and WER for appellant. Edward P. Lyon, for respondNER, JJ., concur.
PER CURIAM. Judgment affirmed, with
costs. BEST, Respondent, v. NEW YORK CENT.
CULLEN, C. J., and GRAY, O'BRIEN, & H. R. R. Co., Appellant. (Court of Ap BARTLETT, WERNER, HISCOCK, and peals of New York. Nov. 21, 1905.) Appeal CHASE, JJ., concur. from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (100 App. Div. 510, 91 N. Y. Supp. BOSSERT et al., Appellants, V. ZIMMER1086), entered December 27, 1904, affirming à | MANN et al., Respondents. (Court of Appeals judgment in favor of plaintiff entered upon a of New York. Feb. 13, 1906.) Appeal from a verdict and an order denying a motion for a | judgment of the Appellate Division of the new trial. Charles E. Snyder, for appellant.
Supreme Court in the First Judicial DepartF. A. Kuntzsch, for respondent.
ment (99 App. Div. 399, 91 N. Y. Supp. 255), PER CURIAM. Judgment affirmed, with entered January 25, 1905, affirming a judgcosts.
ment in favor of defendant entered upon a disCULLEN, C. J., and BARTLETT, HAIGHT, missal of the complaint by the court on trial VANN, and WERNER, JJ., concur. GRAY, at Special Term. E. L. Blackman and Alfred J., not sitting. O'BRIEN, J., absent.
B. Oruikshank, for appellants. John P. Everett, for respondents.
PER CURIAM. Judgment affirmed, with BIRMINGHAM TRUST & SAVINGS CO..
costs. Respondent, v. WHITNEY, Appellant. (Court CULLEY, 0. J., and GRAY, O'BRIEN, of Appeals of New York. Nov. 21, 1905.) Ap BARTLETT, WERNER, HISCOOK, and peal from a judgment of the Appellate Division
concur. of the Supreme Court in the First Judicial Department (95 App. Div. 280, 88 N. Y. Supp. 578), entered June 29, 1904, affirming a judge BOYNTON, Respondent, V. SPRAGUE et ment in favor of plaintiff entered upon a deci- | al., Appellants. (Court of Appeals of New sion of the court at à Trial Term with: York. Oct, 27, 1905.) Appeal from a judg.