Fitch v. American Popular L. Ins. Co. 59 N. Y. 557; Edington v. New York Mut. L. Ins. Co. 67 N. Y. 185.

It affirmatively appears that the application is made by the children; and hence the contract is with them.

Ferguson v. Massachusetts Mut. L. Ins. Co. 32 Hun, 306; Glanz v. Gloeckler, 104 Ill. 573. Even if John Lindemann had acted as the agent of his children, without their authority, at the time he applied for the insurance as their trustee, they could adopt the contract on its becoming known to them, and sue thereon. Hutchings v. Miner, 46 N. Y. 456; Thompson v. American Tontine L. & Sav. Ins. Co. 46 N. Y. 674; Whitehead v. New York L. Ins. Co. 63 How. Pr. 394.

Aside from the fact that the contract is with the children, and hence cannot be altered without their consent, it is made for their benefit, and is inalienable without their consent.

Thompson v. American Tontine L. & Sav. Ins. Co. 46 N. Y. 674; Fowler v. Butterly, 78 N. Y. 68; Fitch v. American Popular L. Ins Co. 59 N. Y. 557; Greeno v. Greeno, 23 Hun, 478; Valley Mut. L. Ins. Co. v. Burke, 7 Va. L. J. 173; Gosling v. Caldwell, 27 Am. Rep. 774; Ricker v. Charter Oak L. Ins. Co. 27 Minn. 193; Pilcher v. New York L. Ins. Co. 33 La. Ann. 322; Whitehead v. New York L. Ins. Co. 3 Cent. Rep. 34, 102 N. Y. 143; Weston v. Richardson, 47 L. T. N. S. 514; Timayenis v. Union Mut. L. Ins. Co. 21 Fed. Rep. 223; National L. Ins. Co. v. Haley, 2 New Eng. Rep. 429, 78 Me. 28; Ruppert v. Union Mut. Ins. Co. 7 Robt. (N. Y.) 155.

The policy remained in full force and effect up to the time of the death of the insured, as the policy issued in lieu of it was in full force and effect, and must be deemed a continuation thereof.

Barry v. Brune, 8 IIun, 395, affd. 71 N. Y.

261.

Messrs. Dulon and Edward Salomon, for respondent:

A gift becomes perfect and irrevocable only by delivery and acceptance.

2 Kent, Com. pp. 438-440; Antrobus v. Smith, 12 Ves. 39; Pennington v. Gittings, 2 Gill & J. 208: Jervoise v. Northumberland, 1 Jac. & W. 559.

A trust may be revocable.

Stone v. Hackett, 12 Gray, 227: Martin v. Funk, 75 N. Y. 134; Willis v. Smyth, 91 N. Y. 297: Mabie v. Bailey, 95 N. Y. 206.

The following cases favor defendant's position:

Clark v. Durand, 12 Wis. 224; Kerman v. Heard, 23 Wis. 108; Foster v. Gile, 50 Wis. 603; Lemon v. Phænix Mut. L. Ins. Co. 38 Co 1. 294; Bickerton v. Jaques, 12 Abb. N. Cas. 25; Gambs v. Covenant Mut. L. Ins. Co. 50 Mo. 44; Swift v. Railway Passenger Ben. Asso. 96 Ill. 309; Landrum v. Knowles, 22 N. J. Eq. 594; Union Mut. L. Ins. Co. v. Stevens, 19 Fed. Rep. 6:1.

him in that character, and not in his individual right. Under the requirement at the end of the application, "Signature of applicant," he signed explicitly as trustee: under the direction, "Signature of person whose life is to be insured," he signed as an individual. The pol icy described the premium as paid by him "in trust for his children," naming them; and it covenanted in terms to pay the sum assured to the three children, or to their guardians, upon the death of their father. The contract, therefore, was one made with the children, through John Lindemann as their trustee. His was the life insured; but the contract was not with him except as trustee for the children and as representing them. He took upon himself this office and duty, with the full knowledge and assent of the company on the one hand, and of the beneficiaries on the other. Every premium paid by him continued to be an act as trustee and agent for the children; and he could not shake off that character and its duties without their assent, except in one way. He might omit or refuse to pay a maturing premium and so suffer the policy to lapse; but the children were at liberty to pay it though he should refuse; and, if they did, the contract would remain valid, as at first, and suffer no injury or destruction from his refusal to pay, or to further act as his children's trustee.

These children thus had a vested interest in the policy, increasing in value yearly with every payment of additional premium. That interest was measured and represented by its surrender value, which was never the property of John Lindemann in any other sense than as the trust property of the children, created by his act as trustee. He could not deal with it in contravention of their rights, especially with one fully apprised of those rights and of his position and duty as trustee. That he kept the policy in his own possession is an immaterial circumstance, for that possession was consistent with the trust and in entire accordance with its terms. On the face of the contract he dealt and acted as trustee for the children, and had no personal or individual interest in the policy, and no control over it except in his trust character and capacity.

What he undertook to do was to destroy the trust by substituting a new and different beneficiary. The policy was issued in September of 1863, and for fifteen years the premiums had been paid. There was no covenant on the part of the company to pay a surrender value; but that value nevertheless existed, and what it was sufficiently appeared when the new negotiations began. The premium due September 24, 1878, was not paid on that day; but on the 28th of that month the trustee surrendered the policy to the company and took out a new one calling for the same annual premiums but payable to his second wife as the sole beneficiary. There was no new examination; the substituted policy bore the number of the one canceled; it was for the same amount; it called for the same annual premium; and stated the same age of the applicant's life as thirty-nine years, adding, as explanation, the words "in The contract of the insurance company, by 1863." The first premium was paid, in part at its express terms, was made with John Linde- least, by a dividend earned by the older policy; mann as trustee for his children, Johanna, Emi-and the new one was made possible by the aplie, and Anna. The application was made by propriation to it and the absorption by it of the

Finch, J., delivered the opinion of the

court:

surrender value of the old policy. What that | executory as to be capable of revocation. But amount was is indicated by the acknowledgment I think it is a mistake to assume that the trust in the new policy of the receipt by the com- was wholly executory. It had been to a large pany, not only of the premium, but of the fur-extent executed. Every payment of premium ther sum of $1,429.44 "to be paid on delivery for fifteen years has steadily added to the value of this policy, by Louise Lindemann, wife of of the policy as the property of the beneficiaJohn Lindemann." She paid it simply by the ries. The day of final payment, grew nearer cancellation of the old policy and the transfer and the burden of premiums decreased steadily of its surrender value to the company in reduc- in number. Each payment made added to the tion of the annual premiums, and by the pro- surrender value and fully executed the gift to cess took away that amount from the original the extent of that value. What the insured beneficiaries and appropriated it to her own had done for the benefit of the assured he could use. This was accomplished by the joint act not undo without their assent, nor take from of John Lindemann, the trustee for the chil- them what was already theirs, and destroy the dren, and the company liable for the insurance. trust so far as executed. The question here It is justified, first, upon the ground that by does not reach the inquiry what might be the the failure to pay the premium of 1878 the old rule in a case where the insured contracted in policy lapsed, and all rights under it were ended his own name, though for the ultimate benefit and destroyed. John Lindemann, it is argued, of others, for here he contracted explicitly as was under no obligation to continue the pay-trustee; and so far as the trust was executed ment of premiums and so preserve the validity neither he alone, nor he and the insurer together, of the policy; his contributions were volun- could wrest from the beneficiaries the product tary, pure gifts, and without consideration, and of the trust and divert it into other channels. involved no duty to continue them beyond his wish and convenience; and when he refused further payments he simply did as he had a right to do, and was guilty of no wrong to the children by suffering the policy to lapse. All that is quite true, except that after notifying the beneficiaries of the trust which he had vol untarily constituted for their benefit, and act- Charles BIDELMAN, as Supervisor of the ing upon it until it had become valuable to them, good faith required that he should not end the trust without notice to them, and an opportunity to preserve it if they should be so disposed, unless it be true that they had no interest or rights in the trust property whatever. But the difficulty with this argument is that the old policy did not lapse at all. The failure to pay the premium of 1878, if there was such failure, was waived by the company in issuing the new policy. That was in all respects a continuation and renewal of the old policy, altered

only by the substitution of a new beneficiary.

Substantially that was determined in Barry v.
Brune, 71 N. Y. 261.

It is suggested that the facts in that case were that the lapse of the canceled policy was arranged beforehand by collusion with the insurance company, while here the lapse occurred as a fact without the pre-existing knowledge or assent of the insurer; and it is urged that the latter's good faith should end in a different ruling. But good faith cannot be asserted of one who aids in the diversion of a known trust fund from its lawful owners to the possession and benefit of another; and the fact of waiver is not changed by the motive, good or bad, of the insurer. The issue of the new policy in continuation of the old one, and in preservation of all the essential rights of the latter, distinguishes this case from Whitehead v. New York Ins. Co. 3 Cent. Rep. 34, 102 N. Y. 143, so far as the question of waiver is concerned, for there no new policy was issued at all; and the gratuity paid to obtain possession of the lapsed policy was consistent with a constant and continued assertion of its invalidity.

But the defendant in this case takes still another ground. Assuming that by the policy John Lindemann contracted as trustee for the children, it is insisted that the trust was revocable at the option of the trustee and was so far

These views of the case differ from those taken by the General Term, and require that the judg ment should be reversed and a new trial granted, costs to abide the event. All concur.

Town of Gaines, Appt.,

v.

STATE of New York, Respt.

A town has such an interest in the preservation of bridges which it is its duty to repair and keep in order as will give it a right of action, in the name of its supervisor, against any person who, intentionally or by negligence, makes repair or rebuilding of such bridges necessary.

(October 2, 1888.)

A the State Board of Claims, affirming an

PPEAL by claimant from a judginent of

award of nothing made by the Canal Appraisers on a claim for damages to certain bridges and culverts in the town of Gaines, injured through a break in the Erie Canal, alleged to have been caused by the negligence of the officers and agents of the State. Reversed.

The question presented is fully stated in the opinion.

Mr. Edwin L. Wage, for appellant:

The reasons given for the decisions in this State holding that a town could not recover for an injury to a highway have been that a town was not bound to repair, and was not responsible for the damages resulting from a failure to repair. The reasoning of these deci sions is entirely abrogated by Laws 1881, chap. 700, Rev. Stat. 7th ed. p. 1221, § 1.

A town is now liable in all cases where formerly a commissioner was liable; and formerly commissioners were liable if they did not keep watch of the bridges and keep them in repair.

Bostwick v. Barlow, 14 Hun, 177; Hover v. Barkhoof, 44 N. Y. 113; Lament v. Haight, 44 How. Pr. 5; Warren v. Clement, 24 Hun, 472.

This action is not to recover for damages to the right of passage sustained by claimant in common with the traveling public, but for a special damage, and money actually laid out

in repairing damage, and may be maintained by the claimant.

Danforth, J., delivered the opinion of the

court:

Pierce v. Dart, 7 Cow. 609; Griffin v. New Every fact essential to a just cause of action York, 9 N. Y. 462; Francis v. Schoellkopf, 53 for damages incurred through the negligence N. Y. 152; Thomp. Highways, 256, 257; Mead of another was found to exist, but the claim v. Jenkins, 27 Hun, 570; Lawrence County v. for compensation was denied upon the sole Chattaroi R. Co. Ky. Ct. App. June 5, 1883, 1 ground that "the bridges and culverts in quesKy. L. Rep. & J. 36; Hampshire v. Franklin, tion were not the property of the town of 16 Mass. 87; Lincoln v. Prince, 2 Mass. 544; Gaines, and hence that an action could not be Springfield v. Connecticut River R. Co. 4 Cush. maintained if the claim were against an indi63: Troy v. Cheshire R. Co. 23 N. H. 83; Hook-vidual or a corporation, and consequently could ett v. Amoskeag Mfg. Co. 44 N. H. 106; Mahady v. Brunswick R. Co. 91 N. Y. 148. The town, having been actually put to the expense of repairing, can recover.

Freedom v. Weed, 40 Me. 384.

Even if the town was not the owner of the bridges, the liability to rebuild would give a right of action.

Cook v. Champlain Transp. Co. 1 Denio, 91; Austin v. Hudson River R. Co. 25 N. Y. 334.

Mr. Charles F. Tabor, Atty-Gen., for the State, respondent:

The supervisor had no authority to file this claim, and has no standing in court to prosecute it. The statute expressly defines and limits the powers of the supervisor, and he can do no act which the statute does not authorize him to perform.

1 Rev. Stat. 7th ed. 805, 826, 840; Palmer v. Fort Plain &C. Plank Road Co. 11 N. Y. 376; Cornell v. Guilford, 1 Denio, 511.

The above statutes confer upon the town as a body corporate the capacity to sue, and declare that in all suits and proceedings the town shall sue by its name, except where town officers shall be authorized by law to sue in their name of office for the benefit of the town. People v. Ulster County, 93 N. Y. 403; Lyons v. Cole, 3 Thomp. & C. 431.

The town itself has no such interest or property in the public highways and bridges within its limits as will entitle it to maintain this claim.

not be properly presented against the State."

It is, among other things, provided by the Code (§ 1926) that an action or special proceeding may be maintained by the supervisor of a town, to recover damages for an injury to the property or rights of that officer or the body represented by him. The supervisor represents the town. The section quoted is substantially a re-enactment of the provision of the Revised Statutes (2 Rev. Stat. 473, §§ 92, 93), and in like manner merely prescribes the mode of enforcing such rights and claims as belong to the supervisor or the town, without defining them or declaring their nature or extent.

But the facts presented by the appellant bring the case within other statutes, devolving a duty on the town, which, being performed at an expense, entitles it to reimbursement at the hands of the wrongdoer who occasioned it.

The facts found are, that by a break in the Erie Canal in the town of Gaines, caused by the negligence of the agents and officers of the State, "three public bridges and a culvert in that town were injured to the extent of $1,200."

By statute the primary responsibility for the maintenance and repair of highways and bridges is cast upon the several towns of the State. It is true that the duty of care and superintendence over them is imposed upon the commissioners of highways, and they are to cause highways, and bridges over streams intersecting highways, to be kept in repair. 1 Rev. Stat. chap. 16, tit. 1, art. 1. Their action, however, Cornell v. Butternuts & 0. Turnp. Co. 25 whether in ordinary (1 Rev. Stat. supra, §§ 3, Wend. 368; Morey v. Newfane, 8 Barb. 6454) or extraordinary cases (Laws 1832, chap. Fishkill v. Fishkill & B. Plank Road Co. 22 Barb. 634; People v. Pennock, 60 N. Y. 421; Galen v. Clyde & R. Plank Road Co. 27 Barb. 513. See also People v. Little Valley Auditors, 75 N. Y. 319; People v. Ulster County, 93 N. Y. 897; Monk v. New Utrecht, 7 Cent. Rep. 241, 104 N. Y. 557.

It is not apparent how the provisions of Laws 1881, chap. 700, change the status of this claimant.

Brown v. Clark, 77 N. Y. 373; Farman v. Ellington, 46 Hun, 43.

274; Laws 1857, chap. 615; Laws 1858, chap. 103), is at the expense of the town and to be met by assessment in the same manner as other town charges (1 Rev. Stat. supra, §§ 3, 4).

So the statute (Laws 1881, chap. 700) entitled "An Act to Provide for the Liability of Towns and Commissioners of Highways in Certain Cases," lays upon the town a liability for all damages to persons or property by reason of "defective highways or bridges in such town." Being charged with these various duties and made subject to liability, it would Towns are mere political divisions of the seem to follow that the town had such an interState. "In everything which concerns the ad-est in the preservation of its bridges as would ministration of civil or criminal justice, the con- give a right of action and a remedy over against servation of highways, roads, and bridges, any person who intentionally or by negligence the several towns are political divisions organ-made repair or rebuilding necessary. ized for the convenient exercise of portions of The statute last cited (Laws 1881, supra) exthe political power of the State, and are no pressly gives an action to the town against its more corporations than the judicial or the Sen-commissioner of highways, if the defect comate and Assembly districts.'

...

Lorillard v. Monroe, 11 N. Y. 392, cited in People v. Esopus Auditors, 74 N. Y. 316. See also Lewis v. State, 96 N. Y. 71; Rexford v. State, 7 Cent. Rep. 762, 105 N. Y. 229.

plained of occurred by his misconduct or neglect, thus extending to the officer a principle well settled in relation to others, viz., that where it appears that an obstruction or defect in a highway, which occasioned an injury, was

aused by a third person, the corporation may | exposes it to the expenditure of money. And, have a remedy over against him. The same since no other objection to the claim is made, principle makes one causing injury to a bridge we think the award should be reversed, and the which it is the duty of the town to repair and claimant allowed the sum demanded, with interkeep in order, liable to the town for the neces- est from the commencement of the proceedings, sary expense of reparation. In the case now viz., the 24th of August, 1881, and costs. before us the State occupies that position. The All concur. negligence of its agents caused injury to the bridges of the town, and the damages claimed are such only as will restore money actually expended by it. We think, therefore, the claim should have been allowed as one prosecuted by a proper party.

We are referred to no reported decisions, nor, indeed, to the decision of any court, that there may not be in the town such property, or at least such incident of property, but only to an unreported decision wherein the canal appraisers held that the highway was not the property of the town, and so the town not entitled to recover. The decisions of the courts, cited by the attorney general in behalf of the respond. ent, do not require us to adopt that conclusion. The reason on which the judgments in those cases rested cannot apply here, for the facts are different. Those cases are the following:

Cornell v. Butternuts & 0. Turnp. Co. 25 Wend. 365, in which the plaintiffs, as commissioners of highways of the town of Guilford, sued the turnpike company for taking possession of a highway and appropriating it to its purposes previous to the appraisal of damages and payment of the same. It was a case of interruption, and the remedy of the plaintiffs was said to be by "indictment, summary abatement, or penalty," or that prescribed by the statute relating to turnpike companies (1 Rev. Stat. 583, § 29), upon which the right to compensation was founded; and that private remedies were confined to the owner of the soil "or persons who had sustained a particular injury." If I am right in the views already stated, the

claimant is in the latter class.

CENTRAL TRUST CO.

v.

NEW YORK CITY & NORTHERN R. CO. Re PETITION OF THE ATTORNEY GENERAL. 1. Where all the property of a corpora tion liable to taxation under the Corporation Tax Act has been sequestrated and is in the hands of a receiver appointed in a proceeding to foreclose mortgages, and the corporation is insolvent; and the receiver has in his hands money derived from the gross earnings of the corporation sufficient to pay the taxes, -proceedings to obtain payment of such taxes are not confined to those provided for in the said Act, but a direct application for an order on the receiver for payment may be made to the court in the foreclosure proceedings, by the attorney general by petition, making the corporation and receiver parties.

APPEAL by the People of the State from an

corporation in a foreclosure proceeding to pay

order of the General Term of the Supreme Court, First Department, reversing an order of Morey v. Newfane, 8 Barb. 645, was an ac- Special Term, made upon petition of the attor tion for damages for injury to horses by de-ney general, directing the receiver of a railroad fect in the highway. It was held that under no circumstances would the action lie. But, however it might be as the law then (1850) was, it is clear that the law of 1881 (supra) gives in certain cases such remedy. Mark v. New Utrecht, 7 Cent. Rep. 241, 104 N. Y. 557. The same remark applies to People v. Little Valley Auditors, 75 N. Y. 316.

Fishkill v. Fishkill & B. Plank Road Co. 22 Barb. 647, and Galen v. Clyde & R. Plank Road Co. 27 Barb. 543, were actions upon agreements to which the town was not a party.

People v. Pennock, 60 N. Y. 421, involved nothing else than the destruction of a bond given by a supervisor.

NOTE.-Statute concerning State taxation of corporations; Act of 1880 construed. The provisions of the Act of 1880, providing "for raising taxes for the use of the State upon certain corporations," etc. (Laws 1880, chap. 542, § 3), includes all corporations, under whatever law incorporated, whose chief and principal business is the manufacture and sale of artificial products. Nassau Gaslight Co. v. Brooklyn. 89 N. Y. 409, where it is held that a gaslight company organized under Laws 1848, chap. 37, is within the meaning of said 33, notwithstanding the exemption contained in § 8. See People v. Philadelphia Fire Asso. 92 N. Y. 323. It inaugurates a new system for the taxation of a certain specified class leaving them subject to taxation for local purposes. of corporations for general and State purposes, People v. Spring Valley H. G. Co. 92 N. Y. 386. The old system was abrogated by $8, as to counties where the assessment had been made, and the new passage of the Act. Ibid. Where a corporation was omitted from the assessment roll, and no tax upon its personal property for city and count y pursessed for that year, and, in addition, for the omit poses was imposed for 1880, but in 1881 it was asted year, under the Act of 1865, the Act of 1865 was adjustable to the change made by the Act of 1880. Assessors, 92 N. Y. 430. The statement in the Act, and the assessment was valid. People v. Brooklyn that it "shall be applicable to the payment of the ordinary and current expenses of the State," is a State Constitution, that every law imposing a tax sufficient compliance with the requirement of the "shall distinctly state... the object to which it is

None of these cases, nor the principle on which they rest, touches the question presented upon this appeal. On the other hand, it is with-system was made exclusive from the time of the in the reason which led to the decision in Bridges v. Sullivan County, 92 N. Y. 570. It should be answered in favor of the appellant and a remedy allowed to it, because the town was under an obligation to keep in repair its bridges and make them suitable for public travel, so that it shall incur no liability from their defects, and it may have compensation from one who wrongfully, by negligence or otherwise, makes such repair necessary and so

taxes accrued under the Corporation Tax Act.*, receiver was appointed in the action above enReversed.

The railroad company above named was incorporated under the laws of this State, and had its principal business office in the city of New York. In May, 1882, a receiver thereof was appointed in proceedings taken to seques-road as thus operated for the years ending June trate its property by a judgment creditor whose execution had been returned unsatisfied. Such receiver operated the road from the time of his appointment to February 3, 1885, when another to be applied." People v. Home Ins. Co. 92 N. Y. 328. So far as it relates to foreign corporations, the Act simply imposes a tax upon their business done within the State. So far as it imposes a tax upon corporate franchises, its operation is confined to domestic corporations. People v. Equitable Trust Co. 96 N. Y. 387.

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