[Vol. 94.

Olive A. Sternaman, Respondent, v. Metropolitan Life Insurance Company, Appellant. - Judgment and order affirmed with costs. - Appeal from a judgment of the Supreme Court, entered in the Erie county clerk's office December 21, 1903, upon the verdict of a jury, and from an order entered December 24, 1903, denying a motion for a new trial.

WILLIAMS, J.: The judgment and order should be affirmed, with costs. The action was brought to recover the amount of a policy of insurance, issued by the defendant upon the life of plaintiff's husband, in which the plaintiff was named as beneficiary. The defense was breach of warranty in the application for the insurance by the insured and beneficiary. The plaintiff on the trial claimed that the statements in the application were true, or at least that plaintiff and her husband told the doctor who took the examination the truth, and that they were not responsible for his failure to state the truth in the application. The case has been tried several times and has been in this court and in the Court of Appeals. (49 App. Div. 473; revd., 170 N. Y. 18.) It was held by the Court of Appeals when the case was there that "When an applicant for life insurance makes truthful answers to all questions asked by the medical examiner, who fails to record them as given, and omits an important part, stating that it is unimportant, the beneficiary may show in an action upon the policy, the answers actually given, in order to defeat a forfeiture claimed by the insurer, on account of the falsity of the answers, as recorded, even if it was agreed in the applica tion that the medical examiner, employed and paid by the insurer only, should not be its agent, but solely the agent of the insured, and the latter warranted the truth of the answers as they appeared in the application." The statements in the application alleged to have been untrue were that the insured never had dizziness, vertigo, loss of consciousness, epilepsy, fits, pneumonia, dyspepsia or spitting of blood, and that the only illness the insured had had since childhood Was la grippe in 1893 and 1895, and then his medical attendant was Dr. Frost and that he never had any other medical attendant. Upon the trial evidence was given from which the jury must have been satisfied that more or less of the statements in the application were untrue. The plaintiff sought to avoid the effect of such untrue statements by showing that a full, fair and truthful disclosure of all the facts relating to matters complained of was made to the examining physician, and that he alone, the agent of the defendant, and not the plaintiff, or the insured, was responsible for the failure to put in the application correct answers to the questions asked. The facts involved in this proposition were left for the determination of the jury. The law had been settled by the Court of Appeals. The jury found for the plaintiff, and the principal question on this appeal is whether the verdict of the jury was contrary to the evidence and should, therefore, be set aside. The examining physician testified that there was no disclosure of the facts except in the line of the answers set down in the application. The plaintiff testifled to the disclosure which she claims was made by herself and the insured. While the physician

appears to have been a fair witness and without interest in the litigation or in the defendant, whose employ he had left at the time of the trial, and while the plaintiff had a deep interest in the litigation, and her evidence was more or less contradictory and suspicious, still the credibility of the two witnesses was necessarily for the jury to determine, and will have to be left to a jury, however many new trials may be ordered upon a reversal on the facts. The court can never take the question from the jury. (Williams v. Delaware, L. & W. R. R. Co, 81 App. Div. 444.) We have patiently gone over the evidence, the charge of the court and the briefs of counsel. The case has been submitted to three juries since the Court of Appeals settled the law of the case. The first jury disagreed; the second found for the plaintiff and the trial court set aside the verdict; the third found for the plaintiff again, and this verdict is now here for review; the amount involved is not large, $1,000, besides interest and costs, and we do not think that we should set aside the verdict as contrary to the evidence. If the questions of fact were for our determination we might arrive at a different conclusion than the jury did, but the jury has the duty of determining the facts, and the jury and not the court is to be satisfied of the correctness of the verdict. The court shall not reverse and order a new trial unless there is a reasonable probability that the result would be changed by such new trial. The trial we are reviewing was had before a very fair, impartial justice, who submitted the question of fact to the jury in an unobjectionable way. think the verdict rendered should not be disturbed upon the facts. Upon the evidence, we think it was for the jury to say whether, in fact, there was loss of consciousness in the spells with which the assured was afflicted prior to the issue of the policy. Thẹ witnesses stated the facts as they observed them. Whether the insured became unconscious was an inference to be drawn from the facts stated. Such inference was for the jury and not for the court. We think there was no error committed by the court in the reception or rejection of evidence or in the charge, calling for a reversal of the judgment and order. They should, therefore, be affirmed, with costs. All concurred. Selina A. Doty and John H. Ward, Appellants, v. John Dellinger, Respondent. Impleaded with Carrie F. Schlenker and Jacob Schlenker.--Judgment affirmed, with costs. - Appeal from a judgment entered in the county of Genesee on the 24th day of September, 1903, dismissing the complaint on the merits after a trial had before a referee.

We

SPRING, J. This action is by a firm consisting of two private bankers to recover on two promissory notes executed by Carrie F. Schlenker and Jacob Schlenker, her husband, to the order of John Dellinger and bearing his apparent indorsement and duly discounted with the plaintiffs. One note of $3,300 bears date January 25, 1903, due in fif teen days, and the other for a like sum is dated February 1, 1903, and due in seven days from its date. Dellinger denied that he indorsed these notes and the referee has found in his favor. About the only question presented for our consideration is whether this finding of fact is contrary to the evi

App. Div.]

dence. We think the evidence is abundant } to support the referee. The Schlenkers occupied a store building owned by the respondent and he had been in the habit of indorsing their paper frequently. Mrs. Schlenker testified that Dellinger indorsed the note dated January twenty-fifth on Monday, the twenty-sixth, at the Schlenker store, and the one dated February first on the second, as it matured on Sunday, also in the store, and a board was obtained for the respondent to place the note on to write his indorsement. There is very slight corroborating evidence. A woman named Safford, who had been employed by the Schlenkers since January 6, 1902, testifled that at one time she got a board, and pen and ink for Mr. Dellinger in the store but is unable to locate the time and she did not see Dellinger write at all. Mr. Safford, the husband of the witness last referred to, testified that at one time Dellinger did some writing on the desk and at another on a board. The wife testified that the writing at the desk was right after we had the new desk put in," and it is conceded that this desk was placed in the store in February, 1902, a year prior to the giving of these notes. Minnie Alexander, also an employee of the Schlenkers, testified that Mr. Dellinger was in the store one evening and did some writing. She is not able to fix the time, and Mrs. Schlenker testified that each of the notes in suit was indorsed Monday afternoon. In view of the fact that concededly Dellinger indorsed several notes for the Schlenkers in their store during the year preceding the giving of the notes in suit there is very little corroboration in the testimony of these witnesses. There are some circumstances to which I will briefly advert which tend to support the plaintiffs' contention. In the first place Dellinger had often indorsed with the Schlenkers and never refused to do so when applied to but once and that refusal was after the notes in suit were made and was subsequently retracted for reasons which the respondent has given. It is, therefore, urged that there was no motive for Mrs. Schlenker, who apparently looked after the renewal of the paper, to forge the signatures when she could procure them by going into the next store where the old man was carrying on a mercantile business with his son-in-law. The notes were in renewal of others outstanding, but Dellinger's position is that the indorsements on those were not genuine. They were not produced on the trial and the sug gestion is that they were carefully destroyed by Mrs. Schlenker as they from time to time matured. In February, 190, Dellinger evidently became alarmed in regard to the extent of the Schlenker notes afloat on which he was liable and asked Mr. Tomlinson, president of the Bank of Batavia, to ascertain the amount of this paper at the various banks in Batavia. Mr. Tomlinson ascertained the amount and gave it to Mr. Dellinger, the list aggregating $13,700, and the indebtedness in fact was upwards of $17,000. Dellinger carried this slip around in his pocket and gave no intimation to any of the banks that his signature on any of these notes was a forgery. It is claimed in his behalf that he did not then know. He kept no track of the notes and was not aware at that time that the indorsements were not genuine. Again he took security along, a mortgage in October, 1902, and insurance policies after the alleged discovery of the forgeries. Even after that time he indorsed a renewal note for $280. He claims that such indorsement was made upon the promise of Mrs. Schlenker to deliver to him the can

celed note as he believed that was a forgery and was desirous of obtaining it. It is also to be remarked that at the time these notes in suit matured the Schlenkers were in failing circumstances and subsequently made an assignment for the benefit of their creditors to the son-in-law of the respondent. On the other hand, there are several facts which make for the respondent. Many of his genuine signatures are in evidence. The alleged forged signatures on the two notes in suit and those in the companion action are markedly dissimilar from the conceded signatures. Again the four indorsements claimed to be forgeries are closely alike. The counsel for the appellants concedes the manifest difference in these indorsements from the genuine signatures, but in explanation Mrs. Schlenker testified that along in December and thereafter Dellinger took extra pains with his signature and wrote it laboriously. The difficulty with this contention is that the other genuine signatures of Dellinger along about this period possess the marked peculiarities which are palpable in all his genuine signatures. Dellinger was about seventy-five years of age, born in Germany and of meager English education. He wrote but little and with evident effort, confined chiefly to his signature, and it is hardly possible that he could depart so manifestly from his ordinary signatures and continue the new handwriting alike in four signatures made at different dates. He testified that he expected Mrs. Schlenker to ask him to renew these notes and he remained in his store all day intending to get the originals and ascertain if they were genuine; that he did not go in the Schlenker store at all on either of these days and the notes were not presented to him for renewal and he did not indorse them. His son-in-law, Mr. Haitz, who seems to be a man of standing, testified that Mr. Dellinger talked ever the subject of these indorsements and that Dellinger remained in the store purposely on the two days when these notes are claimed to have been indorsed. Several witnesses familiar with the handwriting of Dellinger testified that in their judgment these indorsements were not made by him. Another cogent circumstance is that the bankers who knew his signature did not testify to the genuineness of these indorsements, although several of them were witnesses on other matters on behalf of the plaintiffs and testified to their familiarity with his signature. His signature was well known in Batavia, yet witnesses could not accordingly identify them. This excuse does not appeal to me with the force given it by the counsel. The signature was too well marked to be radically disguised by this illiterate old man. Mrs. Schlenker testified that her husband was present when these notes were indorsed, but he was not sworn, which seems somewhat strange. An examination of the enlarged indorsement shows a tremor, a lack of freedom of movement observable in the genuine signatures. While one of the experts enters into an elaborate analysis of each of the simulated signatures in comparison with those concededly genuine to support his conclusion that the indorsements are forgeries, I lay no stress upon this evidence, although some of his reasoning is pertinent. The referee apparently was not influenced by this class of testimony. Our conclusion is that there was ample evidence to sustain the judgment and that it ought not to be disturbed. The judgment and order should be affirmed, with costs. All concurred. William B. Rankine, Respondent, v. De Veaux College for Orphan and Destitute Chil

dren and Others, Appellants.-Judgment affirmed, with costs, upon opinion of Childs, J., delivered at Special Term. (Reported in 41 Misc. Rep. 655.) All concurred, except Williams and Stover, JJ., who dissented.

In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo for the Appointment of Commiss'oners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Certain Lands in the City of Buffalo, which May Be Injured, and Claimed to Be Owned by Lydia F. Wasson, Individually and as Executrix, etc., of Thomas Wasson, Deceased, and Others. (Proceeding No. 56.) Grade Crossing Commissioners of the City of Buffalo and Others, Appellants; The American Car and Foundry Company, Respondent. Order affirmed, with costs. All concurred; Hiscock, J., not sitting. Bank of Genesee, Appellant, v. John Dellinger, Respondent, Impleaded with Carrie F. Schlenker and Jacob schlenker.- Judgment affirmed, with costs, on opinion of Spring, J., in Doty v. Dellinger, (ante p. 610) All concurred.

John R. Pawling, as Committee of the Property and Estate of Martha Gates, a Lunatic, Appellant, v. Susie Marvin. Respondent, Impleaded with Others.- Judgment affirmed, with costs. All concurred, except McLen nan, P. J., and Williams, J., who dissented. Joseph Foster, Jr., Respondent, v. International Paper Company, Appellant.-Order granting extra allowance reversed, with ten dollars costs, and motion denied. Judgment modified by striking out such extra allowance of costs, and as so modified judgment and order denying motion for new trial affirmed, with costs. All concurred; Williams, J., not sitting.

In the Matter of the Application of George E. Zeiler, an Incompetent Person, by Committee, Respondent, for Leave to Sell certain Real Estate. Bertha Krause and Albert F. Krause, Appellants. Order affirmed, with ten dollars costs and disbursements. concurred.

All

John R. Williams, as, etc., v. German Insurance Company. Motion to amend decision denied. All concurred, except Spring and Hiscock, JJ., who dissented.

In the Matter of Arthur E. Clark, an Attorney and Counselor. - Ordered, that the Hon. Charles A. Hawley be and he is hereby appointed referee to hear the proof upon the charges herein and report the same to this court, together with his opinion thereon, with all convenient speed; also ordered, that the district attorney of Genesee county be and he is hereby directed to prosecute such charges before said referee, and that Selden S. Brown, Esq., counselor at law, residing at the city of Rochester, be and he is hereby designated as counsel to assist in such prosecution.

Rochester Trust and Safe Deposit Company, as Administrator with the Will Annexed of James H. Doty, Deceased. Respondent, v. George Truesdale, Appellant. -- Judgment affirmed, with costs. All concurred. George T. Chester, Individually and as Execu

tor, etc., of Mary P. Chester, Deceased, Appellant and Respondent, v. Buffalo Car Manufacturing Company and Others, Respondents and Appellants.- Order modifying decision and judgment affirmed. Judgment affirmed, with costs, on authority of same case, reported in 70 Appellate Division, 443. All concurred, except Williams, J., who dissented.

Newton O. Hoyt, Respondent, v. Edwin P. | Lyman, as Trustee of a Trust Created by

[Vol. 94.

the Last Will and Testament of William R. Mills, Deceased, and Others, Appellants, Impleaded with Orcelia S. Mills and Others.

Interlocutory judgment affirmed, with costs. All concurred, except Williams and Stover, JJ., who dissented.

Frank J. Saxton, as Trustee in Bankruptcy of Joseph Bastian, Bankrupt, Appellant, v. National Cash Register Company, Respondent. Judgment affirmed, with costs. All concurred.

The People of the State of New York ex rel. Jane Walrath and John A. Walrath, Respondents, v. The Board of Assessors of the Town of Brownville, and Others, Appellants. -Judgment and order modified so as to provide that the costs of the proceeding be awarded and taxed against the defendants in their official capacity and not personally, and as so modified affirmed, without costs of this appeal to either party. Held, that the finding of the referee that the defendants acted in bad faith is contrary to the evidence. All concurred.

Loenza J. Aldrich v. William H. Lanning.Motion to dismiss appeal denied, with ten dollars costs and disbursements.

Ceylon H. Lewis and Another v. Helen J. Snook. Order heretofore entered allowing an appeal to the Court of Appeals amended nunc pro tune by inserting therein the specific question of law set forth in the papers upon this motion.

George Hall v. United States Radiator Company. -Motion to dismiss appeal granted, with ten dollars costs.

Loren M. Hewitt, as, etc., v. Viner J. Hedden and Others. Motion to amend decision denied, with ten dollars costs. All concurred, except Hiscock, J., dissenting.

John Charles Miller v. Seneca River Power Company and Others.- Motion for leave to appeal to the Court of Appeals granted, this court certifying that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals.

Charles Siler v. Bath and Hamondsport Railroad Company.- Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to the Court of Appeals denied.

George Snell v. William Cornwell.- Motion for leave to appeal to the Court of Appeals denied. Motion for reargument denied, with ten dollars costs.

The People of the State of New York, Respondent, v. William H. Davey, Appellant.

Judgment of conviction and order affirmed. All concurred, except Hiscock, J., who dissented.

In the Matter of the Judicial Settlement of the Accounts of Thomas F. Redmond, as Executor, etc., of James Redmond, Deceased, Appellant. Gilbert Wilcoxen and William M. Wilcoxen, Respondents. Order affirmed, with ten dollars costs and disbursements. All concurred.

Ann Derby, Respondent, v. Robert Furniss and Rose Furniss, as Executors, etc., of John Furniss, Deceased, Appellants. - Order affirmed, with ten dollars costs and disbursements. All concurred.

William Bennett, Appellant, v. The Rochester Printing Company, Respondent. — Order affirmed, with ten dollars costs and disburse ments. All concurred. Edna L. Ranney, Respondent, v. Cornelius Van Cott, Appellant. Order affirmed, with ten dollars costs and disbursements. All concurred.

Clarence Ten Eyck, as Receiver in Proceedings Supplementary to Execution of the Property of Sarah A. Bookman, Appellant v. Le Roy Bookman and Others, Respond

App. Div.]

ents. Order reversed, with ten dollars costs | and disbursements and motion denied, with ten dollars costs. Held, that the complaint states only one cause of action. All concurred.

Clarence Ten Eyck, as Receiver in Proceedings Supplementary to Execution of the Property of Sarah A. Bookman, Appellant, v. Lucinda Bookman and Others, Respondents. Order reversed, with ten dollars costs and disbursements and motion denied, with ten dollars costs. Held, that the complaint states only one cause of action. All concurred.

William M. Patteson and Elizabeth C. Fehrman, as Administrators, etc., of Cornelia S. Moore, Deceased, Respondents, v. Sherrill Babcock, Appellant.-- Order affirmed, with ten dollars costs and disbursements. All concurred.

The Village of Theresa, Respondent, v. Frederick L. Santway, Appellant, and James W. Wakefield, Composing the Firm of the Theresa Electric Light Company.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Josephine M. Bulkley and Alvin W. Greene, as Administrators. etc., and Others, Appellants, v. Edward B. Perley, as Executor, etc., and Others, Respondents.- Order affirmed, with ten dollars costs and disbursements. Held, that the reference of the cause was a final disposition thereof within the meaning of section 3251, subdivision 1,* of the Code of Civil Procedure, which provides that the term fee shall not be taxed for the term at which a cause is tried or otherwise finally disposed of. All concurred.

Addie H. Griswold, as Executrix, etc., of James C. Griswold, Deceased, Appellant, v. William H. Hawley, Respondent.-Judgment affirmed, with costs. All concurred. Susan Freeman, Respondent, v. Albina B. Brown and George N. Brown, as Executors, etc., of Lucina Miles, Deceased, Appellants. -Judgment affirmed, with costs. All concurred.

Eugene M. White, Respondent, v. Charles M. Gibbs, Appellant. - Judgment affirmed, with costs. All concurred.

Harry Field, Appellant, v. Edward Frankinfield, Respondent.- Order of the County Court reversed and judgment ordered for the plaintiff on the verdict, with costs. All concurred.

Frank Froschauer, Respondent, v. Rome Manufacturing Company, Appellant.- Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon the ground that the damages awarded by the jury are excessive. concurred.

All

Sarah L. Beers, Respondent, v. The John Hancock Mutual Life Insurance Company, Appellant.- Judgment and order affirmed, with costs. All concurred.

Thomas R. Atkins, Respondent, v. Edwin R. Fay and Others, as Executors, etc., of James C. Reed, Deceased, Appellants.- Judgment affirmed, with costs. All concurred, except Hiscock, J., who dissented upon the ground that the plaintiff did not establish his claim with a sufficient degree of certainty. Julius Bach, Plaintiff, v. Charles G. Butts and Susan A. Holmes, Defendants.- Plaintiff's exceptions overruled, motion for a new trial denied, and judgment ordered for the defendant upon the nonsuit, with costs to the defendant. All concurred.

Lillian G. Jenkins, Respondent, v. Angeline Jewell, Appellant.-Judgment affirmed, with costs. All concurred.

Charles E. Woodward, Appellant, v. George Millage, Respondent.-Judgment of County Court affirmed, with costs. All concurred. The People of the State of New York, Plaintiff, v. Reginald W. Pettit, Defendant.- Defendant's exceptions overruled, motion for new trial denied, and judgment ordered for the plaintiff upon the verdict, with costs. All concurred.

Myra Wilcox, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.- Order granting new trial reversed, motion denied, and judgment ordered for the defendant upon the verdict, with costs. Held, that upon the evidence in this case the train and gate, at the time of the accident, were not being operated by the defendant, but by another railroad company, and that there was no admission in the pleadings that this defendant was so operating the railroad or gates. All concurred. Edward Burke, Appellant, v. Joseph J. Parks and Nelson O. Parks, Respondents.- Order affirmed, with costs. All concurred. Kate Devereaux, Respondent, v. Metropolitan Life Insurance Company, Appellant.- Judgment affirmed, with costs. All concurred. William Lay and Others, Respondents, v. Michael Doyle, Appellant.-Judgment and order affirmed, with costs. All concurred. Wendell J. Curtis, as Assignee for the Benefit of Creditors of Sidney B. Roby, Appellant, v. Henry C. Albee, Respondent.- Judgment affirmed, with costs. All concurred. A. T. Hagen Company, Respondent, v. Banner Steam Laundry, Appellant.-Judgment and order affirmed, with costs. All concurred. Alice Smith, Appellant, v. The Young Men's Christian Association of Batavia, New York, Respondent.- Judgment affirmed, with costs. All concurred.

Rinehard Kuelling, Plaintiff, v. Roderick Lean Manufacturing Company, Defendant.Plaintiff's exceptions overruled, motion for new trial denied and judgment ordered for defendant upon the nonsuit on the authority of same case, reported 88 Appellate Division, 309. All concurred, except Williams, J., who dissented.

Jacob Smith, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.-Judgment and order affirmed, with costs, on authority of same case, reported 164 New York, 491. All concurred.

Roscoe A. Hillman, Respondent, v. American Clay Working Machinery Company, Appellant. Upon the record on appeal, motion papers, and all papers on file in this appeal, and upon the stipulation of respondent's attorney the judgment and order appealed from are reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred.

Minnie H. Congdon, as Administratrix, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.Motion for leave to appeal to the Court of Appeals granted, this court certifying that in its opinion a question of law has arisen which ought to be reviewed by the Court of Appeals, pursuant to section 191 of the Code of Civil Procedure.

Lydia M. Beebe, Appellant, v. The City of Syracuse, Respondent.-Judgment and order affirmed, with costs. All concurred, except Williams and Stover, JJ., who dissented. May I. Bidwell and William E. Werner, as Executors, etc., of Charles H. Bidwell, Deceased, Respondents, v. Patrick Fahy, Appellant Judgment affirmed, with costs. All concurred.