A great number of exceptions were taken by the defendants to rulings of the court and of the referee upon questions of evidence. The rulings particularly urged upon our attention, are two; one of which excluded certain entries in the diary of the deceased, which were offered by the defendants; and the other admitted a portion of the testimony of the witness De Witt C. Gage taken on commission in the state of Michigan. Mr. Gage was an attor ney and counsellor at law and was the scrivener who drew the plaintiff's deed of the land for which the moneys in question were received. The testimony was objected to as a privileged communica tion under § 835 of the Code of Civ. Pro.; but the objection was plainly not tenable.

The first declaration testified to as made by the deceased at the time the deed was drawn, was made in presence of his wife, the other party to the agreement to which the declaration referred; and the subsequent declarations testified to by the witness were not shown to have been made in the course of, nor in connection with, any professional employment of the witness. None of the testimony of this witness was within the exclusion of the statute nor of the rule at common law upon which the statute was based.

There seems to be no principle upon which the entries made by the deceased in his diary, and in his own pecuniary interest, could have been received in favor of his personal representatives. A party cannot make evidence in his own behalf, either by written or spoken declarations made in the absence of the other party in interest.

We find no other exception in the case which calls for special consideration. The judgments and order appealed from should

be affirmed.

Judgments and order appealed from affirmed, with costs.
MACOMBER and CORLETT, JJ., concur.

GENEVIEVE N. A. BAKER, Resp't, v. EDWARD C. CROSBY, Ex'r of Alfred M. Ingham, Dec'd, App'lt.

(New York Superior Court, General Term, Filed November 3, 1890.)

INSURANCE (LIFE)—ASSIGNMENT OF POLICY.

Possession of the policy is not necessary to the validity of an assignment thereof, and the question of its delivery and acceptance is frequently one of intention depending on the circumstances of the transaction.

APPEAL from judgment in favor of the plaintiff, entered upon the decision of a judge at special term.

The action was originally brought against the Mutual Life Insurance Company, and the present defendant, as executor, was afterwards substituted as defendant in place of the company by order of this court, in the nature of an order of interpleader.

William C. Holbrook, for app'lt; Dailey & Bell, for resp't.

FREEDMAN, J.-The record discloses no error in the admission of evidence. It also shows that the conclusions of law are fully warranted by the findings of fact. The real question, therefore,

is whether the findings of fact are supported by sufficient evidence. The learned chief judge who tried the issues found, in substance, that the gift of the policy in suit was absolute, and not conditional; that it was fully executed; that there was a delivery of the assignment and that the plaintiff accepted the assignment. There is sufficient evidence in support of these findings. Indeed, in view of the correspondence proved to have passed between Mr. Ingham and the plaintiff, the trial judge could not very well have found otherwise. Possession of the policy is not necessary to the validity of an assignment, and the question of the de livery of the assignment, and its acceptance, is frequently one of intention, depending on the circumstances of the transaction. In this case there can be but little doubt as to the intention of the parties. Moreover, there is no certificate that the case contains all the evidence. This of itself is fatal to the contention of the appellant. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479, and Aldridge v. Aldridge, recently decided by the court of appeals, second division, 31 N. Y. State Rep., 948.

Upon the case as presented, there was no error in refusing the requests made by the defendant.

The judgment should be affirmed, with costs.

TRUAX, J., concurs.

CHARLES S. HINE, Resp't, v. THE MANHATTAN RAILWAY CO., Appl't.

(New York Superior Court, General Term, Filed November 3, 1890.)

TRIAL EVIDENCE.

Where the decision of the court is sustained by competent evidence, the judgment will not be reversed on account of the admission of incompetent evidence which did not prejudice the appellant.

APPEAL from a judgment of this court in favor of plaintiff, rendered after a trial of the issues at an equity term. The judgment. awards to the plaintiff the sum of $8,824.92 damages, and contains an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of the premises No. 13 Bowery, unless, within a time fixed by the judgment, they pay to the plaintiff the sum of $12,500.

Appellants contend that the fee of the street is in the city, and also that the trial judge erred in admitting evidence of offers made to the plaintiff for the purchase of his property prior to the construction of the elevated railroad, and in admitting hearsay evidence as to sales of property upon the Bowery.

Brainerd Tolles, for app'lt; Wm. H. Arnoux, for resp't.

INGRAHAM, J.-The appellant relied on two exceptions taken to the admission of evidence.

The first exception is to the ruling of the court, overruling an objection to a question asked of the plaintiff as to offers that he had received for the property in 1871, or 1872. That this evidence was incompetent to prove the value of the property is clear, but the value of the property in 1871 or 1872 was not the main

issue involved in the case, and while we think it was error to overrule the objection, it does not follow that the judgment should be reversed. As was said in McGean v. The Manhattan R. R. Co., 27 N. Y. State Rep., 339: "The court must be satisfied upon an examination of the whole case that the appellant was prejudiced by the admission of the evidence to warrant a reversal.

This was an action in equity for an injunction to restrain a continuing trespass. The evidence justified the judgment for an injunction, and at the request of defendant the court undertook to ascertain the value of the premises appropriated by the defendant, so that on the payment of the value of such property the injunction could be dissolved. The amount which the court fixed as the value of the property appropriated by the defendant was abundantly sustained by competent evidence. An examination of the case has convinced us that the defendant was not prejudiced by this testimony.

The same may be said of the other testimony, an exception to the admission of which the defendant relies on.

The defendant's witness Hawes also testified to the sale; there was a difference between them of only $500, Martine saying it sold for $29,000, and Hawes, the defendant's expert, saying that it sold for $29,500.

Whether it was one or other was evidently immaterial. The question as to the right of the plaintiff in a street opened during the occupation of this city by the Dutch is settled in this court, and we have nothing to do but follow former decisions.

On the whole case we think that no error was committed which calls for a reversal, and the judgment should be affirmed, with costs. FREEDMAN, J., concurs.

EMIL R. NOEL, Resp't, v. THE HERMAN BENCKE LITHOGRAPH CO. AND HERMAN BENCKE, Imp'ld, App'lts.

(New York Superior Court, General Term, Filed Nov. 3, 1890.)

1. LEASE-COVENANT TO PAY INCREASE OF INSURANCE.

A clause in defendants' lease provided that they would be responsible for any increase of insurance over a certain rate which might be imposed by insurance companies on the building or the stock and fixtures of any other tenants. At the time the lease was executed, the rest of the building had been let, and cost of insurance fixed, and plaintiff was liable to the other tenants for any increase of insurance caused by the uses for which other parts of the building were leased. Immediately thereafter the rates of insurance were increased on other tenants on account of defendants' business, which increase plaintiff was obliged to pay. Held, that the provision of the lease covered such a case, and that plaintiff was entitled to

recover.

2. SAME.

At the time of signing the lease plaintiff's agent stated that the only chance defendants run would be about a certain amount. Held, that this was a mere expression of opinion, and that if defendants wished to limit its liability to a certain amount, the limitation should have been inserted in the lease.

APPEAL from a judgment in favor of the plaintiff and against the defendants, appellants, for the sum of $974.85, rendered upon a verdict directed by Judge Truax at a trial term.

The action was brought to recover the excess of insurance premiums over one per cent. imposed upon the tenants of a building owned by the plaintiff and part of which was leased to the de

fendants.

The clause of the lease upon which the defendants' liability was claimed is as follows: "Parties of the second part (defend ants) hereby agree to be responsible to the party of the first part (plaintiff) for any increase of insurance over one per cent. premium per annum which may be imposed by the various insurance companies on the building or on the stock and fixtures of any of the tenants in the build ing.'

It appeared by the evidence on the trial that the plaintiff, by reason of covenants in leases with B. Sternberg & Co., K. Mandell & Co. and H. II. Cahn, was liable to them for increases in insurance premiums caused by any extra hazardous risks in the building; that the insurance of these tenants was increased immediately after the entrance of the defendants as tenants; that the increase was caused by the nature of the business (lithographing) carried on by the defendants, and that the plaintiff had paid to the above named tenants the sum of $812.25, being the excess of premiums over one per cent. paid by them.

Blandy & Hatch, for app'lts; De Lancy Nicoll, for resp't.

INGRAHAM, J.-Under this agreement the defendants agreed to be responsible to the plaintiff for any increase of insurance over one per cent. per annum which might be imposed by the various insurance companies on the building or on the stock and fixtures of any of the tenants in the building.

There is no express provision that such increase for which the defendants were to be liable should be caused by the business or acts of the defendants. Nor is the liability confined to the amount that the plaintiff should have to pay either to the assurance companies or to the other tenants. The express agreement is that the defendants should pay to the plaintiff the increase of insurance over one per cent. per annum. Considering the circumstances surrounding the execution of the lease the intention of the parties is clear.

Plaintiff had become liable to other tenants to pay the increased insurance in case other parts of the building should be leased for purposes that would raise the cost of insurance. The building, with the exception of that portion about to be leased to the defendants, was all occupied, the uses to which it was to be put ascertained and the costs of insurance fixed, and the only use of the building that could affect this liability was the use to which defendants would put the part of the building leased by them, and it was clearly to meet such an emergency as has arisen, and to prevent any dispute as to the causes of the increase in the cost of insurance, that the absolute liability for such increased cost was imposed upon the defendants, and having agreed to that liability, I can see no reason why they should not be held to their agreement.

Counsel for the defendant conceded that the amount that

plaintiff claimed was correct, under the ruling of the court, unless the counterclaim was established.

We agree with the court below that defendant failed to establish the counterclaim set up in the answer, except to the extent that it was allowed.

The statement of the agent of the plaintiff as to the extent of the defendants' liability under the clause in question was not in the nature of a warranty. The statement was made when defendants hesitated about signing the lease that the only chance defendants would run would be "about whatever is over one per cent. on $40,000 of insurance."

It is clear that this was a mere expression of opinion as to the amount of the insurance that would be affected by the business that defendants were about to carry on in the building. If defendants wished to limit the liability to the increased costs on $40,000 of insurance, that limitation should have been inserted in the lease. No request was made to have such a limitation inserted. This is not a case of mutual mistake which would justify the court in reforming the instrument by the insertion of such a clause, as it was never intended by either party that there should be an express limitation of the liability, and the evidence does not show mistake on one side and fraud on the other as would justify a reformation, and I think the parties must be held to the instrument as executed.

We have examined the other question presented, but think there was no error committed that requires a reversal of the judg ment. The judgment must, therefore, be affirmed, with costs. FREEDMAN, J., concurs.

GEORGE PEYSER, Resp't, v. JOHN C. MCCARTHY et al., App'lts. (New York Superior Court, General Term, Filed November 3, 1890.) CONVERSION-PAYMENT.

Plaintiff purchased certain property of one D. and procured W., a creditor of D., to join in the bill of sale, which stated that the property was "free from all claims." Sub equently it was levied upon by another creditor and plaintiff was compelled to pay to release the levy. He received about the same sum from W., giving a receipt in full for all claims against W., but it did not appear that he had any other claim against him. Plaintiff claimed it was only a loan. In an action to recover the money so paid to the sheriff the court charged that the payment by W. could not be considered as a defense. Held, error; that the payment by W. if made as stated in the documents operated as an equitable assignment of plaintiff's claim for the conversion; but if only a loan would not, and that the question of loan or equitable assignment should have been left to the jury.

APPEAL from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial.

Henry D. Hotchkiss, for app'lts; John Fennel, for resp't.

TRUAX, J.-The plaintiff was the owner of certain property that he had bought from one Duntze. At the time of the sale Duntze owed one Wagner and the firm of Austin, Nichols & Co., N. Y. STATE REP., VOL. XXXIII. 96