and 106 New York State Reporter testified that the fair cash value of this policy was $300, and that it was not the practice of insurance companies to pay cash surrender values on their policies. In Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. 267, 55 Am. Rep. 787, cited by the appellant, the policies were with the wife, as the party assured. The contract was said "to be about the husband, and not with him," and the wife was held to have a vested interest in the policies at the moment of their delivery, so that the husband could not surrender the policy to the company without her consent, and his act in so doing was not within his power. But in the case at bar the contract was with the husband, who subsequently assigned to the wife, her executors, administrators, and assigns, and upon her death the title vested in her administrator. It is objected that the assignment by Baker, as administrator, to Bedell, being without the assent of the husband, was in violation of the provisions of chapter 248 of the Laws of 1879, which reads as follows: "All policies of insurance heretofore or hereafter issued within the state of New York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the state, shall be, from and after the passage of this act, assignable by said wife with the written consent of her husband; or in case of her death by her legal representatives, with the written consent of her husband, to any person whomsoever, or be surrendered to the company issuing such policy, with the written consent of the husband." I think that the statute does not apply. The original policy in this case was not issued upon the life of the husband for the benefit of his wife, but for the benefit of his legal representatives, which must be taken to be his executors and administrators. Geoffroy v. Gilbert, supra. The statute in question was passed in furtherance of the legislation beginning with the enabling act of 1840 (chapter 80), which permitted the wife to insure the husband's life for her benefit or for that of her children, but which went no further in enlarging her legal capacity in such respect. And the purpose of both the act of 1873 (chapter 821) and of the said act of 1879 was to permit her to assign such a policy under the limitations therein provided. Miller v. Campbell, 140 N. Y. 457, 460, 35 N. E. 651. The language of the statute wherein the legislative intent must be sought, helped by the laws of interpretation (McKuskie v. Hendrickson, 128 N. Y. 555, 558, 28 N. E. 650), is neither obscure nor doubtful, and it is not our province to legislate under the plea of statutory construction upon the principle that it were beneficent or wise to extend the purview of a law. This statute only contemplates and only applies to a policy that in terms assures the wife, and cannot be extended to this case, where the interest of the wife is but a property right, acquired by her through an ordinary assignment, made many years after the original issue of the policy. The judgment appealed from must be affirmed, with costs. A concur. (64 App. Div. 547.) GROSJEAN v. GALLOWAY. (Supreme Court, Appellate Division, Second Department. October 23, 1901.) 1. VENDOR AND PURCHASER-DEFECTIVE TITLE-DECEIT MEASURE OF DAM AGES. In an action for a deceit in fraudulently inducing plaintiff to purchase real estate by representations that defendant had title thereto, when in fact he merely held tax certificates, the measure of damages is the difference in value between a perfect title and the interest which plaintiff actually acquired by the conveyance. 2 SAME QUESTIONS FOR JURY-SUFFICIENCY OF EVIDENCE. Defendant represented to plaintiff that he owned certain lots, and that he had bought them from the state engineer. Defendant stated to plaintiff, "If you don't believe that I own them, here are the tax receipts," and, on being asked if the title was all right, said that it was. Defendant testified that he never bought the lots; that he had no title except the redemption certificate to a portion of them; that he had previously gone into possession, partly under such certificate, and built a fence around them, and cultivated them. On such representation plaintiff paid defendant a certain sum for the lots, and received a quitclaim deed. Held, in an action for deceit, that the evidence was sufficient to submit to the jury the question of the fact and falsity of the representations, the defendant's knowledge, and the reliance of the plaintiff thereon. 8. SAME-EVIDENCE-ADMISSIBILITY-PRESUMPTION ON APPEAL. In an action for deceit in inducing plaintiff to purchase a defective title to realty, plaintiff offered in evidence, as bearing on the measure of damages, a lease under which he had been paying rent. No objection was made that no evidence had been introduced to show that the lessor was the real owner of the premises. Held, that it was error to exclude the lease; the court on appeal assuming that plaintiff would have followed up the offer of the lease by proof of the lessor's title. Appeal from trial term, Richmond county. Action by Amelia Grosjean against William A. Galloway. From a judgment entered on dismissal of the complaint, plaintiff appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.. Lyman A. Spalding, for appellant. GOODRICH, P. J. The action is to recover damages for deceit. The complaint alleges that the defendant falsely and fraudulently represented to the plaintiff that he was the owner of 12 lots in Richmond county; that such representations were known to the defendant to be false, and were made with the fraudulent intent to induce the plaintiff to purchase the lots; and that the plaintiff, relying upon such representations, and induced solely thereby, purchased the lots, paid the defendant $300, and received from him a quitclaim deed, to the plaintiff's damage $300. The answer denied all fraud, and alleged that the defendant was in possession of the premises, and that upon the execution and delivery of the deed the plaintiff went into possession, and still remains in possession of the premises under the deed. and 106 New York State Reporter At the close of the evidence for both parties the court dismissed the complaint, and the plaintiff appeals. It is elementary that a person who has been induced by fraudulent representations to become the purchaser of property has, upon discovery of the fraud, three remedies open to him, either of which he may elect First, he may rescind the contract absolutely, and sue to recover the consideration, in which case he must first restore or offer to restore the property; second, he may bring action to rescind; third, he may retain what he has received, and bring an action at law to recover the damages sustained, in which case the measure of his recovery is the difference between the value of the article sold and what it should be according to the representations. Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301. In Krumm v. Beach, 96 N. Y. 398, it was held that where a party seeks the third remedy, whether the representations relate to the title or to matters collateral to the land, the measure of the damages is full indemnity to the injured party,— the entire amount of his loss occasioned by the fraud. The evidence shows that the defendant represented that he owned the lots; that he had bought them from the state engineer at a tax sale; that he was the only owner of these 12 lots; that he said: "If you don't believe that I own the lots, here is the tax receipts that I paid taxes on this year, and why should I pay taxes if I did not own the lots?" Being asked whether the title was "all right," he answered, "Yes; I am sure of that." The defendant testified: "I never bought these lots from anybody. I did not have any title to them by purchase from anybody on that day, except the redemption certificate of six of these lots, and the occupation of them. I was in possession of those lots from the summer or the spring of 1889 until Mr. Grosjean went on these lots and took possession of them. And it is under this certificate, partly, that I went into possession. When I took possession of them I built a fence around them, and cultivated them during the whole of that time." On the representations already set out the plaintiff paid the defendant the $300, received a quitclaim deed, and went into possession. There was evidence sufficient to require a submission to the jury of the fact and the falsity of the representations, the defendant's knowledge, and the reliance of the plaintiff thereon. There remained then the question of the measure of damages, and this, as already indicated, was the difference between the amount paid by the plaintiff and the value of the lots, if the defendant owned them. The plaintiff's evidence showed that after she went into possession she had been paying rent on some of the lots, and her counsel offered in evidence a lease to her of such lots. On objection of the defendant the court excluded the lease, and the plaintiff excepted. Doubtless the orderly method of proof was evidence in the first place that the lessor was the owner of the premises, yet, no specific objection of that character having been made to the introduction of the lease, we must assume on appeal from a dismissal of the complaint that it was the intention of the plaintiff to follow up the lease by proof of title, and then by evidence of the value either of the lots themselves or the possession of them. This would have been testimony from which the jury could have found the amount of the difference in values re ferred to in Vail v. Reynolds, supra. Consequently the exclusion of the lease was error which requires a reversal of the judgment. Judgment reversed and new trial granted; costs to abide the event. All concur. (64 App. Div. 566.) In re BRANDRETH'S ESTATE. Appeal of KANE et al. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) 1. SETTLEMEnt of DeceDENTS' ESTATES--APPORTIONABLE DIVIDends. Code Civ. Proc. § 2720, provides that all annuities, dividends, or other payments made payable at fixed periods under any instrument shall be apportioned so that on the death of any person interested therein his legal representatives or assigns shall be entitled to a proportion thereof. A testator transferred corporate stock to his daughters, who thereupon executed an instrument stating that the testator was to receive all dividends on the stock until his death, and have the right to vote thereon. The company declared and paid a dividend October 28th, and the testator died November 15th. Another dividend was declared November 27th. The dividends were usually paid monthly, but only when they were earned, and the corporation had the right to pay them at their pleasure or convenience. Held, that the dividend declared November 27th was not apportionable, and the testator's executors were not entitled to any portion of it. 2. DAME-SPECIFIC LEGACIES. Where a testator bequeathed a share of corporate stock, the legatee was entitled to the dividends declared thereon after his death, where the dividends were not apportionable. 8. SAME-EXECUTOR'S ACCOUNT. Code Civ. Proc. § 2730, provides that on the settlement of the account of an executor the surrogate must allow to him reasonable compensation for his services and expenses. Section 2728 requires the executor's account to be presented, duly verified, with the petition, for a judicial settlement. Held, that the account need not include any claim that the surrogate must ascertain, and an executor may testify to the amount and purpose of expenses paid by him in the administration of the estate, though the items were not included in the account. Appea! from surrogate's court, Westchester county. Appeal by John I. Kane and Francis Larkin, Jr., as executors of George A. Brandreth, deceased, from a decree of the surrogate's court settling and adjusting their accounts as executors of the will of George A. Brandreth, deceased. Decree set aside. Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ. Adrian H. Joline, for appellants. Samuel Watson, for respondent. SEWELL, J. One of the questions involved is whether the estate of the testator is entitled to an apportionment of a dividend declared upon II shares of stock of the Porous Plaster Company 334 and 106 New York State Reporter (Sup. Ct. on the 24th day of November, 1897. On the 2d day of November, 1893, George A. Brandreth, the testator, transferred to his four daughters II shares of stock of the Porous Plaster Company, and they thereupon executed an instrument or power of attorney which recited that the transfer to them was made upon condition that the said George A. Brandreth "is to receive all dividends declared upon said stock for the term of his life, and also upon the condition that he has the right to vote upon the said eleven shares of stock the same as though no transfer had been made," and wherein the Porous Plaster Company was authorized "to pay him all dividends which may be declared upon said stock, to make out the checks to his order, and to take his receipt for the same." The power of attorney also contained the provision: "It being our intent and object. to secure him the dividends on såid stock until his death, and also the right to vote on said stock." It is conceded that the Porous Plaster Company declared and paid a dividend on the 28th of October, 1897, and that no other dividend was declared or paid prior to the death of the testator, which occurred November 15, 1897. It also appears that another dividend of $200 per share was declared November 27, 1897, and that the dividend upon the II shares transferred to the daughters was paid to them. The testimony of Ralph Brandreth, vice president of the Porous Plaster Company, constituted the only evidence, in regard to the power or practice of the company as to dividends. He testified: * * "We never declared dividends. We pay them when we have them,-once in two months, once in three months. We tried to pay them every month a few years ago. It is a close corporation. We pay dividends when we have them. That has been the general practice for the past two years. The dividends are paid under the direction of the executive committee, whenever we see fit to do it. Wednesday of each month. We pay them now usually on the fourth them. We can never tell till the money is out. We pay dividends when we earn something happen-an accident, or fire, or something of that kind—that We might have would prevent it. * it is earned in. The business runs along all the time. We cannot tell in what period of the month tell when it is earned. It is earned all over, and we cannot tell when it is It is impossible to earned." * The surrogate found: "That the usual monthly dividend at the rate of $200 per share was de clared upon the stock of the Porous Plaster Company on October 26, 1897; the next monthly dividend upon the stock of said Porous Plaster Company was at the rate of $200 per share, and was declared upon November 24, 1897." The surrogate also found: "That said dividends of October 26, 1897, and November 24, 1897, declared upon the stock of said Porous Plaster Company, were not payable, nor did they become due, at fixed periods, under any instrument executed after June 7, 1875, or under a last will and testament taking effect after said date. They were paid, however, at regular monthly intervals." The surrogate refused to find as a conclusion of law that the estate of the testator was not entitled to an apportionment of the dividends declared on the 24th day of November, 1897, upon the II shares |