In the case at bar, upon the question now under consideration, what occurred at the time the application was made is not mentioned to give any importance to the fact that the agent had any knowledge of the manner the applicant was conducting his business. But inasmuch as the words, taken together, of his statement upon the subject expressed in the application, are in their import somewhat equivocal, reference may be had to the light furnished by the surrounding circumstances, with a view to ascertain the sense in which they were used, so far as it may be applicable to them, and in aid of their interpretation. French v. Carhart, 1 N. Y., 96; Field v. Munson, 47 id., 221; Bridger v. Pierson, 45 id., 601.

The defendant, by issuing the certificate, accepted this statement in the application and put it into the contract, subject, as it was, to the interpretation arising from its equivocal character apparent upon its face, and dependent upon the intent with which the words were used, not inconsistent with their application to the subject to which they related. And in that view the conclusion was warranted that the party intended to be understood by the statement that he was selling by measure under his local license, and that none other than sales by the drink were treated by him as at retail. It therefore seems that, under proper instructions from the court, the question was one of fact for the jury. White v. Hoyt, 73 N. Y., 505. And there was no error in the refusal of the court to charge as requested, or in submitting the question upon that subject to the jury.

The further question upon the merits is, whether the jury were, by the evidence, permitted to find that the certificate of insurance was in force at the time of the death of the member.

It is urged by the defense that the contract had terminated, and the right of the plaintiffs to assert any claim against the defendant upon it forfeited by reason of the default of Kenyon in making payment of an assessment as required by it. The certificate contained the provision that, if any assessment should not be paid within ten days after notice provided by the by-laws for its payment at the office of the defendant in the city of Cincinnati, Ohio, unless otherwise expressly agreed in writing, or to its agents on production of a receipt signed by the president, vicepresident or secretary, the certificate should cease and determine. And by a by-law endorsed upon the certificate it was also provided that "any member failing to pay his assessment within ten days after such notice has been served upon him, shall forfeit his certificate of membership in the association and all benefits therefrom. Any member having forfeited his membership by failing to pay his assessments, may be reinstated, he being alive, within thirty days after said notice was sent, he paying all arrearages," and that such notice might be sent by mail, and when so sent should be deemed a sufficient notice for the payment of the assessment required. This, with what appears in the application upon the subject, was the contract between the parties in that respect, and as such effectual to govern their rights, except so far as it may have in some manner been modified or strict compliance

with such provisions waived. On March 27, 1885, the secretary of the defendant at Cincinnati mailed, addressed to Kenyon at Watertown, N. Y., a notice that an assessment of $4.75 on his certificate was then due and payable on or before April 6, 1885, and added: "Assessments are payable at this office in cash, by sight draft on Cincinnati or New York banks, money order, or American or U. S. Express Co. money order, payable to Charles Brown, secretary," and that the receipt was held at the defendant's home office, where he could get it until April 6th, inclusive, on payment of the amount, and where he could pay it after that date. The default alleged was in the payment of that assessment. This the plaintiffs seek to meet by the fact, which the evidence on their part tended to prove, that the member on April 4, 1885, sent by mail from Watertown his check drawn upon a bank there for the amount to the defendant's secretary at Cincinnati, payable to the order of the latter. It was sent sufficiently early to reach by due course its place of destination within the ten days mentioned in the notice, but it was not received by the defendant's secretary, and if it had reached him within that time he would not have been required to accept it in performance of the contract as represented by its terms before mentioned. But the course of dealing between the parties had been such that the member was at liberty to assume that his check upon the bank was receivable by the defendant, because it had uniformly and without objection received his checks in payment for assessments upon the certificate.

So far the defendant had waived strict performance and permitted the member to pay in his checks as a substitute for the method of payment mentioned in the notice. It appeared that within a little more than a year and a half preceding the time of this assessment, Kenyon had sent to the secretary fifteen checks, drawn by him as this was and upon the same bank at Watertown, in payment of assessments, and that they were so received. But it is contended that the receipt at the home office of the defendant of that which the assured was permitted to deliver in payment, was essential to accomplish it. That is the rule when nothing appears to the contrary. Insurance Co. v. Davis, 95 U. S., 425. And such was the effect of the contract in question, and, as we have seen, not modified by the terms of the notice of assessment. The method of doing it through the mail had been adopted by the assured. And although many of the checks before sent in that manner were not received, nor were some of them sent until after the expiration of the ten days following the notice, no question had been raised. If that can be treated as waiver of prompt payment it is entitled to consideration. But it is with much force suggested that payment within thirty days after notice was the right of the assured, and when so made would operate to reinstate his relation of membership, which had been terminated by his default in payment during the first ten days, and therefore furnished no evidence of any indulgence by the defendant or extension of the time for payment. It is difficult to see any waiver of payment within the time and at the place provided for by the contract, unN. Y. STATE REP., VOL. XXXIII. 60

less the circumstances were such as to permit the assured to understand, from the action of or the course of dealing with the defendant, that the deposit of the check, properly endorsed and directed, in the mail in due time was a compliance with its requirement to save him from default and his contract of insurance from forfeiture, or unless what occurred by way of correspondence between him and the defendant after he had so mailed the check may have been treated as such waiver. By reference to which this appears:

On April 10th the secretary wrote Kenyon saying that his assessment payable on or before April 6th was yet unpaid; that he could pay it, if living, any time before April 27th. Until such payment is made you are carrying your own risk in case of death," and after expressing the wish that Kenyon remain a member of the association, and saying that if the assessment was not paid within that time he would forfeit the certificate, added: "Remit by bank check, postal order or American Express Co. order." In a letter of date 13th April to the secretary, Kenyon stated that he paid the assessment April 4th, and before the secretary's letter, in reply, reached its destination, Kenyon had died. Those letters do not of themselves furnish evidence of purpose of the defendant to waive the payment not made within the ten days. It called the assured's attention to the right the contract gave him, and recognized his right to pay by bank check. Further consideration is due to the effect of the prior transactions between the parties in relation to the assessments and the manner of paying them, upon the rights of the parties, arising out of the notice and attempted remittance in question. The conditions inserted in a contract of insurance for the benefit of the company making it may be waived by it. And in Insurance Co. v. Eggleston, 96 U. S., 572, it was said by the court: "That forfeitures are not favored in the law; and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture or an agreement to do so on which the party has relied and acted. Any agreement, declaration or course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.' And substantially to the same effect are Meyer v. Knickerbocker Life Ins. Co., 73 N. Y., 516; Wyman v. Phoenix Life Ins. Co., 119 id., 274; 29 N. Y. State Rep., 567; Helme v. Philadelphia Life Ins. Co., 61 Pa. St., 107.

If the check had been mailed, addressed to the secretary, by the direction of the defendant, the member would not have been in default, although it was not received, assuming as we may that he had the funds in the bank to meet it. Palmer v. Phoenix Life Ins. Co., 84 N. Y., 63. There was no express agreement or direction to that effect. And that method of remittance was for all purposes at his risk, unless the course of dealing with the defendant enabled him to believe and understand that the mailing of it

would be effectual to protect him against forfeiture. 2 Greenl. Ev., § 525; Gurney v. Howe, 9 Gray, 404; Crane v. Pratt, 12 id., 348: Morgan v. Richardson, 13 Allen, 410.

The distance between the place of residence of the assured and the defendant's home office was such that payment of assessments by his personal delivery at the latter place evidently was not contemplated, and so far as appears the defendant was satisfied with the method of remittance from him directly to its officer by mail; and such means of transmission may have been within the expectation of the parties in view of their situation. And doing it through the postal service might very well be deemed no less safe and appropriate than any other manner to make payments by means of bank checks. Buell v. Chapin, 99 Mass., 594. As this had been uniformly the manner of transmitting and accepting payment or the means of payment of assessments, adopted by the parties, it may be said that the postal medium of transmission had in some sense become a matter of usage between them having the nature of an implied agreement to that effect. In that view it is not essential for the purpose of the question that the mailing or reception of the check should constitute actual payment, or that it should have operated as such during the life of the assured. Maher v. Hibernia Ins. Co., 67 N. Y., 283. The parties apparently had acquiesced in that method of representing the amount as well as in the means of transmission. And the conclusion was warranted that by the course of dealing adopted by the defendant in that respect, the assured may fairly and in good faith have been led to suppose that the requirement of the defendant upon him was satisfied by mailing as he did, in his customary manner of doing it, the check for the amount of the last assessment.

The proposition was not necessarily overcome by the fact that the other checks were received prior to the time the assured had the right to make payment, although that may properly have been a matter of consideration by the jury upon the question submitted to them. If these views are correct, the jury were permitted by the evidence to find the facts essential to the validity of the insurance certificate at the time of the death of the assured. And it follows that the motion for nonsuit was properly denied, and that there was no error in the submission of the case to the jury. In the other rulings to which exceptions were taken there was no error to the prejudice of the defendant.

The judgment should be affirmed.

All concur, except FOLLETT, Ch. J., not sitting, and POTTER, J., absent.

WILLIAM P. ABENDROTH, Resp't, v. THE NEW YORK ELEVATED R. R. Co. and THE MANHATTAN R. Co., App'lts.'

(Court of Appeals, Second Division, Filed October 7, 1890.)

1. RAILROADS-ELEVATED-RIGHTS OF ABUTTING OWNER.

1

The owner of a lot on a public street, which is bounded by the side of the street, has incorporeal private rights in such street, consisting of ease

1 Affirming 7 N. Y. State Rep., 43.

ments of light, air and access, which are incident to his property, and which may be so impaired as to entitle him to damages. 2. SAME.

Such rights are "private property" within the meaning of the constitution, and for damages to which by the construction and operation of an elevated railroad in front of the premises an action may be maintained, and the fact that the road was constructed under legislative authority is no defense to such action.

In an action for the recovery of damages arising from the construction and operation of an elevated railroad, the conduct of the plaintiff in using the road as a passenger, and his delay in bringing suit until his right to do so had been decided in suits by other parties, is not a defense.

APPEAL from an order of the general term of the superior court of the city of New York, entered May 12, 1887, reversing a judgment which dismissed the complaint on the merits, and granting a new trial, with costs to abide the event.

When the inhabitants of the island of Manhattan were governed by the United Provinces, a public highway was opened pursuant to the laws then and there existing, which way, so far as it ap pears, had no name, but was a country road, and so remained until the authority of the British government was established on this island.

After New York became a British colony the highway was called Queen street, and when it became a state the way was known as Pearl street, by which name it is now designated. In front of the plaintiff's premises the street is forty-one feet wide between the house lines, but whether its exterior lines at and near this point coincide with those of Queen street, and of the ancient highway, does not appear. Since January 2, 1865, the plaintiff has been the owner in fee and in possession of a lot on the south side of this street, which is about twenty feet wide, and about ninety feet deep, on which a four story brick building about fortythree feet high, about twenty feet wide and sixty feet deep, has stood for more than fifty years, and is known as number 280. There is no other street or public way by which this lot can be reached.

In 1871 The New York Elevated Railroad Company was incorporated under the general railroad law of this state, and in 1875 The Manhattan Railway Company was incorporated pursuant to chap. 606 of the Laws of 1875. During the winter of 1877 and 1878 the first mentioned corporation built an elevated railroad in this street, and in front of the plaintiff's lot; which road, in August, 1878, opened for business, and was operated by that corporation until May 20, 1879, since which it has been operated by The Manhattan Elevated Railroad Company under a lease from its owner. The railroad, and its relation to the plaintiff's property is described in the findings of fact (which description is not questioned) as follows: "Pearl "Pearl street, in front of plaintiff's said premises is forty-one feet wide between the house lines; and the sidewalk is from nine feet eight inches to nine feet eleven inches wide. The elevated railroad structure, erected as aforesaid in front of these