to this instrument, but testified that he was induced to sign the same by an agent of the defendant, who told him that he had trimmed one of the plaintiff's trees, and wished to pay him for it, and that the paper which he signed was simply a receipt for $1; that he (the plaintiff) did not read the paper; that he had not his spectacles with him, and relied solely upon the statement of defendant's agent as to the contents of the instrument. Upon that evidence the trial court directed a nonsuit, and the judgment entered thereon was affirmed by this court, Mr. Justice Spring writing a dissenting opinion. The decision of this court was reversed by the Court of Appeals. It was held that the plaintiff was correct in his practice in not alleging in his complaint the fraudulent character of the instrument under which the defendant claimed, and in not serving a reply to the answer of the defendant in which such instrument was alleged as a defense. It was further said:

"He [the plaintiff] was not obliged to appeal to a court of equity for relief against the deed, but when it was set up to defeat his claim he could avoid its effect by proof of the fraud by which it was obtained. Kirchner v. New Home Sewing Machine Co., 135 N. Y. 182 [31 N. E. 1104]. Nor was he obliged to return the dollar paid to him on its execution. The plaintiff does not attempt to rescind a contract as induced by fraud. The charge by him relates, not to the contract, but to the instrument which purports to represent the contract. In such a case the return of the consideration is unnecessary."

In that case, as in this, the plaintiff insisted that the deed under which the defendant claimed was absolutely void by reason of the fraud which induced it. He did not seek to reform such instrument and turn it into a receipt for $1, which he claimed was the real transaction between him and the defendant, but he gave proof tending to show that the defendant had no deed, because of the fraud practiced in obtaining the paper, and therefore had no title to the premises; and such proof, as we have seen, the Court of Appeals held was proper to be given in a case of ejectment for the purpose of defeating the defendant's alleged title. Upon principle we fail to see how the case at bar can be distinguished from the Wilcox Case. Here the plaintiffs do not seek the reformation of the deed executed. and delivered to the defendant by their intestate, but they take the position that the instrument under which he claims title is absolutely void, because, when executed and delivered to him, the grantor was non compos mentis, and because the same was procured through fraud and undue influence.

In that case the

The learned counsel for the respondent calls attention to the case of Hall v. La France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513, and insists that decision is decisive of this case. plaintiff had executed a deed which upon its face conveyed the fee of the premises to the defendant, and the defendant put in evidence such deed as a defense to the plaintiff's alleged action in ejectment. The plaintiff then sought to prove, while admitting the execution of the deed, and that he intended to convey an interest in the premises thereby, that such interest was not correctly expressed in the instrument; that he did not intend to convey all his interest, but only to insure to the defendant the continued use of certain streets that

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had been laid out upon the premises in question. In other words, in that case, in an action in ejectment, the plaintiff sought to have the deed which he had given reformed; and it was held that such issue could not be tried or such relief granted in an action in ejectment, but must be tried in a court of equity. At all events, it seems to us that the Wilcox Case, supra, is decisive of the case at bar. It follows that the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide event.

Judgment 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. All concur.

KIRK et al. v. HOME INS. CO.

(Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. MARINE INSURANCE-DREDGE-DEVIATION-CONSTRUCTION OF POLICY. Under a marine policy insuring a dredge, and providing: "Warranted confined to the use and navigation of the waters of New Haven Harbor and adjacent inland waters. * * Any deviation beyond the limits named in this policy shall void this policy"-the use of the dredge in an inland water adjacent to Bridgeport Harbor, 17 miles from New Haven Harbor, is a deviation.

Submitted controversy by William B. Kirk, John Dunfee, Ambrose C. Driscoll, and John A. Seely, composing the copartnership of Kirk, Driscoll & Co., against the Home Insurance Company. Judg ment for defendant.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Hun & Parker (Lewis R. Parker, of counsel), for plaintiffs.
William Ives Washburn, for defendant.

PARKER, P. J. The plaintiffs seek to recover upon a policy of insurance issued by the defendant, which insured them to an amount not exceeding $7,500 against the usual marine perils to their steam dredge Driscoll for one year from April 7, 1902. On September 8, 1902, the dredge was sunk in Ceder creek, which is a part of, or an adjunct to, the harbor of Bridgeport, in the state of Connecticut. The policy contained the following provision:

"Warranted confined to the use of navigation of the waters of New Haven Harbor and adjacent inland waters, with privilege to lay up and make additions, alterations and repairs, and to go in dry dock. Losses or averages of each voyage or trip to be adjusted separately.

"Any deviation beyond the limits named in this policy shall void this policy, but upon the return of said vessel within the limits named herein, this policy shall reattach and continue in full force and effect, but never beyond the date hereinbefore set for the termination of this policy, and provided only, no disaster has occurred during said deviation."

The single question presented to us is whether Ceder creek, the place where the dredge sank, is within the limits specified by the phrase, "waters of New Haven Harbor and adjacent inland waters."

The submission concedes that if Ceder creek, which is confessedly an inland water, may, within the purpose and intent of such phrase, be deemed as adjacent to New Haven Harbor, then the plaintiffs are entitled to recover; otherwise not. Bridgeport Harbor is some 17 miles, and Ceder creek some 18 miles, west of New Haven Harbor. Evidently the purpose of such provision was to limit the locality where the dredge was to be used. We may assume that some waters are more perilous than others, and therefore the applicants were required to state where the dredge was to be used, and the contract was made with reference to those waters. The waters of New Haven Harbor are clearly specified. There is no ambiguity about that phrase; but what was intended by the further phrase "and adjacent inland waters"? The Sound is concededly not "inland waters," and so the dredge might not be used there, although it is adjacent to New Haven Harbor. Evidently the purpose of such limitation was to confine the use of the dredge to New Haven Harbor and waters adjacent to that harbor other than the Sound. If, under the phrase "adjacent inland waters," we may include Bridgeport Harbor, 17 miles away, I see no reason why New London Harbor, or even New York Harbor, may not be included, as there seems to be no element in the case to show why 50 miles may not be considered adjacent, as well as 17 miles. The effect of such a construction would be to extend the limitation to any harbor and adjoining inland waters on the Connecticut coast; and, if such was the purpose, it would have been better expressed in that language. Clearly, such a sweeping effect was not intended by the phrase used.

The specifying of the one harbor seems to me to repel the idea that any other harbor was intended. Bridgeport is a harbor as prominent and important as is New Haven Harbor, and it has several inland waters leading into and adjoining it. If the purpose of the contract was to insure the dredge while being used in those waters, as well as while being used in New Haven Harbor, both harbors would have been named. It is incredible that a harbor so distinct and prominent as Bridgeport would have intentionally been described as an "inland water adjacent to New Haven Harbor." As suggested above, any other harbor on the Connecticut coast, where the dredge might happen to sink, might as well be claimed to be included within the phrase used, and thus the limitation to New Haven Harbor was practically meaningless.

It is urged that the only inland water adjoining or connected with New Haven Harbor is the Quinnipiack river, a water in which it could not be expected the dredge would be used, and that, therefore, the word "adjacent" must necessarily apply to inland waters some distance from, and not at all connected with, that harbor; and hence, as the language used must be construed strictly against. the insurer, other harbors and other inland waters are not excluded from the terms of the policy. But we must, in reason, assume that the plaintiffs made the statement as to where the dredge was to be used; and it is as probable that the phrase in question was their language as that it was the defendant's. Under such circumstances, the rule that the policy must be construed most strictly against the

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insurer does not apply (London Assurance Corp. v. Thompson, 170 N. Y., 94, 100-103, 62 N. E. 1066), and a reasonable interpretation of the words used in the light of the surrounding circumstances should control us. If the language was the plaintiffs', it does not at all follow that the defendant knew what the nature of the Quinnipiack river was, or whether or not there were any inland waters connected with New Haven Harbor. It was informed that the insured desired to use the dredge in that harbor, and was content with language that limited its use to that harbor, and such waters as, in the ordinary meaning of the word, were adjacent thereto. It had no reason to expect that other harbors were intended. It had every reason to assume that they were not.

I am of the opinion that the insurance did not cover the loss at the place where the dredge was sunk, and that the defendant is entitled to judgment, with costs. All concur.

LEGGETT v. CITY OF WATERTOWN.

(Supreme Court, Appellate Division, Fourth Department. March 8, 1904) 1. MUNICIPAL CORPORATIONS-SIDEWALKS-DEFECTS-ADJOINING

PREMISES.

Where plaintiff was injured by the falling of a sidewalk and a platform maintained by an adjoining property owner and attached to the sidewalk, but which formed no part of the highway, the city was not bound to keep such platform in repair, and hence an instruction authorizing a recovery if plaintiff was injured by reason of a defect in the sidewalk, or through a defect in the platform or structure in conjunction therewith, was erroneous.

2. SAME-WITNESSES-CONTRADICTION-AFFIDAVITS-EVIdence.

Where it was claimed that an affidavit made by a witness contained statements contradictory to his testimony, but such affidavit contained other statements than those concerning which the witness was questioned, which were hearsay, the affidavit was inadmissible.

McLennan, P. J., and Spring, J., dissenting.

Appeal from Trial Term, Jefferson County.

Action by John E. Leggett against the city of Watertown. From a judgment in favor of plaintiff, and from an order denying defendant's motion to set aside the verdict and for a new trial, defendant appeals. Reversed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

F. B. Pitcher, for appellant.

Purcell, Walker & Burns, for respondent.

STOVER, J. This is an action to recover damages by reason of an alleged defect in a highway. The highway in question is a public street in the city of Watertown, leading to and over a bridge, the point at which the accident occurred being upon premises adjoining and contiguous to the bridge and the sidewalk leading from the bridge in front of the abutting premises. The walk from the bridge leading northerly was supported partly by a wall and by upright pieces of timber.

The evidence showed that adjoining the sidewalk was a platform and steps leading to it, which was used by the abutting owner in conjunction with his property. Between the easterly edge of the sidewalk and the building upon the abutting property, called the "Dixon Property," was a space of about six feet. This space was occupied by a platform extending from the north end of the bridge and in front of the Dixon premises about 20 feet. The platform was higher than the sidewalk, and was reached by means of three steps, which ran along the front of the platform and occupied about two feet of the width, leaving about four feet of platform between the steps and the Dixon building. The steps at the westerly end of the platform, and which form the approach to the platform, according to the plaintiff's version, rested upon the easterly edge of the sidewalk, and, as one or more of the witnesses gave it, projected about two inches on the sidewalk. There was an iron railing at the easterly side of the bridge extending to the southerly side of the platform, and at the northerly side of the platform the iron railing was continued along the easterly edge of the sidewalk, the opening in the iron railing being the length of the platform, which was used as an approach to the Dixon premises. At the time of the accident, a number of people had collected for the purpose of witnessing an exhibition of daring by a man who had advertised that he would jump from the top of the bridge into the river below. The accident occurred on Memorial Day, 1898. The testimony of the plaintiff is that, as he was passing down the street and came to the bridge, he saw a large crowd there; that the crowd was so large on the walk it was impossible to get through, so he took the roadway across the bridge; that he pushed his way through there, and after he got across the bridge he undertook to get on the board walk again, and finally, after working through, he got as far as the Dixon property, and, owing to not having his truss on, he found he had trouble from a rupture in the groin; that he put his foot upon one of the steps and leaned over, and made a pressure with his thigh to adjust the breach; that when he had been there but a minute or two the crowd came and rushed onto the board walk, and he was standing with his left foot upon the bridge walk, when the walk and platform and all went down, and he went with it. Beneath the platform on the Dixon property was an open space about 15 to 20 feet deep.

The evidence as to the condition of the walk after the accident is somewhat conflicting. The walk itself did not fall, but some of the witnesses testified that it sank on the easterly side when the platform gave way, and the boards were tipped up, the lower portion being towards the easterly side of the walk. The evidence showed that the plaintiff was injured by the fall. This case was before this court on a former appeal. 55 App. Div. 321, 66 N. Y. Supp. 910. Upon that appeal a judgment of nonsuit was reversed, and a new trial ordered. The rule governing the case as presented upon that appeal, and which was necessary to the decision of that appeal, was as follows:

"It was the duty of the municipality to construct and maintain sidewalks over and along its thoroughfares, which should be reasonably safe for the use of such pedestrians as had occasion to pass over them; and if it knowingly permitted the safety and efficiency of any of its walks to become in