and 103 New York State Reporter

view of the matter, and that the defendant is not in a position to raise the question. Defendant's counsel at the close of the evidence moved to dismiss the complaint upon the ground that the plaintiff had failed to prove a delivery of the policy. This motion was denied, and defendant took an exception. If there was any evidence of the delivery of this policy, the court could not, as a matter of law, dispose of the question upon a motion to dismiss the complaint. and it cannot be doubted that there was evidence of such delivery. The evidence of its physical delivery to the deceased was not disputed, and the defendant conceded that its agent was authorized to deliver the policy upon his own judgment as to the state of health of the insured, and there was evidence of the payment on the part of the insured to the agent of the company in the manner customary in the conduct of ordinary business affairs,-by means of the deceased's check. The defendant's counsel then moved to dismiss the complaint on the ground that there was already an express violation of the conditions of the policy in respect to sound health. At this point the court announced that it would submit some questions to the jury; and counsel for defendant excepted to the denial of the motion to dismiss upon this last ground, and asked for the direction of a verdict for the defendant upon the breach of warranty and breach of conditions, and excepted to a denial of this motion. The court then stated the questions given above, and defendant's counsel excepted to the submission of each and every one of these questions to the jury. There was no request to submit any other questions to the jury, or that the case be submitted to the jury in any other form (Carr v. Carr, 52 N. Y. 251, 255); and the position of the defendant is merely that of asking the court to dispose of all of the questions, either of fact or law, upon its motions outlined above. It was not proposed by the court or assented to by counsel that there should be a special finding of the facts, leaving solely to the court the application of the law to the facts; but the court called upon the jury to determine five specific questions, upon which must depend the disposition of the case, and the defendant is hardly in a position to complain because the court preferred the judgment of the jury upon the facts to its own. It is not to be doubted that the court, upon the conceded facts, might have directed a verdict for the plaintiff, in so far as the question of the delivery of the policy is concerned. It was purely a question of law, none of the material facts being controverted. See Code Civ. Proc. § 1185. The remaining facts involved in the defendant's motion were submitted to the jury, and, as we have already pointed out, there was evidence to support the findings of the jury. There was no error in the denial of the defendant's motions either to dismiss or to direct a verdict, and the record discloses all of the material facts necessary to support the judgment. Carr v. Carr, supra.

The defendant urges that the contract of insurance never came into life, because two essential elements-due delivery of the policy to the insured, and payment by the insured of the first premiumnever took place. But we are of opinion that, under the conceded facts, Fred L. Genung was the general agent of the company to

take applications and deliver the policies; and, if he was such agent, his act in waiving a condition was undoubtedly within his power. Ames v. Insurance Co., 31 App. Div. 180, 52 N. Y. Supp. 759; Id., 40 App. Div. 465, 468, 58 N. Y. Supp. 244. The physical delivery of the policy by the defendant's agent, the offer of the deceased to pay the premium at that time, and its deferment on the assurance of the company's agent that the insured had 30 days in which to make the payment, and the subsequent delivery of decedent's check to the agent of the defendant, constituted in law a consummation of the contract, and imposed a liability upon the company, unless fraud is established. While the relationship between the insured and the defendant's agent might be taken into consideration on the question of fraud, it is evident from the testimony that the company was aware of the relationship; and there is no reason for concluding that at the time the policy was delivered, and accepted by the insured, the agent of the company had any reason to believe the risk was not a legitimate one. The offer of the insured to pay the money at the time of the delivery of the policy was an evidence of the consummation of the contract, and the mere deferring of the payment did not affect the question of the delivery; it being within the apparent scope of the agent's authority. Tooker v. Trust Co., 26 App. Div. 372, 376, 49 N. Y. Supp. 814.

There was a conflict of evidence as to whether the insured was treated by a physician in January, 1899; he having answered questions 3 and 4 in the insurance application in a manner to raise this as one of the issues. His answers, which were given under the general warranty clause in the policy, stated, in effect, that he was last under the doctor's care for la grippe in 1895; that it was the last time he was confined to the house by illness. Dr. Conklin testified that he had treated the insured in 1896, and again in January, 1899, but he was not very certain about the matter; and it was in evidence that the treatment was merely for a slight indisposition,-a cold,— which did not take the insured from his business. He had come into the house from his stores, according to the plaintiff's version of the matter, where the doctor was attending the family for la grippe, and had been given some medicine for a cold. Under the authorities, this does not constitute a breach of the warranty (Dilleber v. Insurance Co., 69 N. Y. 257, 262; Cushman v. Insurance Co., supra, and authorities there cited), and the jury were alone competent to pass upon this question.

We have examined the remaining questions, without finding reversible error.

The judgment and order appealed from should be affirmed, with All concur.

costs.

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J. H. MOHLMAN CO. v. McKANE et al.

(Supreme Court, Appellate Division, Second Department. April 26, 1901.)

1. NOTE-INDORSEMENT-CONSIDERATION.

The acceptance of an indorsed note payable at a future date, given for a debt of the maker, was a forbearance of the right to sue the maker until the maturity of the note, constituting a valuable consideration for the indorsement.

8. SAME-NOTICE OF PROTEST.

Negotiable Instrument Law, § 168, provides that notice of protest may be given to the party or to his agent. Sections 175, 179, provide that, where the person giving the notice and the person who receives it reside in different places, it may be sent by mail, and, if the party to receive the notice has added an address to his signature, it must be sent to that address; if not, then to the post office nearest to his place of residence. There was no address added to the indorsement on a note. The notice of protest was mailed to the town where the note was dated, addressed to the indorser, and to one signing the indorsement in the name of the indorser, as her attorney. The note matured in October. Defendant's husband died in September, before which date defendant lived with him at the place to which notice of protest was sent. It did not appear that defendant's residence had changed previous to the time of sending notice. Held, that the mailing of the notice was sufficient as a matter of law.

Appeal from trial term, Kings county.

Action by the J. H. Mohlman Company against Fanny McKane and Minnie E. McKane. Judgment for plaintiff, and defendant Fanny McKane appeals. Affirmed.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

George W. Roderick, for appellant.
William O. Miles, for respondent.

GOODRICH, P. J. The action is brought against Fanny McKane, as indorser of a negotiable promissory note made by Minnie E. McKane to the order of the plaintiff, and payable three months after date. The complaint alleges that the indorsement was made for the purpose of procuring the acceptance of the note by the plaintiff, and to enable Fanny to obtain credit from the plaintiff. A bill of particulars shows that the plaintiff in February, 1897, sold to Minnie merchandise amounting to $47.07. In May she gave an order to the plaintiff for other merchandise, but the order was "held up" until Fanny should guaranty the purchase, and give a statement of her pecuniary responsibility. This statement was given to the plaintiff on May 29th, and reads as follows:

"New York, May 29th, 1897.

"I herewith submit a statement of my affairs to J. H. Mohlman Co. to induce them to accept my guaranty for 500 and 00/100 dollars, and my indorsements on notes for goods furnished to my son as manager. Real estate

Mortgaged

Liabilities (Including indorsed notes).

$80,000

16,000

2,000

"Fanny McKane."

Subsequently, the plaintiff delivered merchandise amounting to $399.15, making a total of $447.72. On July 6, 1899, the note in suit

was given for the whole bill, credit having been allowed for payments amounting to $44.01. The defendant contends that there was no consideration for her indorsement of the note. The acceptance of the note, payable at a future date, was a forbearance of the right to sue the maker until the maturity of the note, and this constitutes value. Section 51 of the negotiable instruments law (chapter 612, Laws 1897) says: "Value is any consideration sufficient to support a simple contract. Any antecedent or pre-existing debt constitutes value." Receiving a note as security for a debt or forbearance to sue upon a present claim or debt constitutes a consideration for the note. 1 Daniel, Neg. Inst. (4th Ed.) § 183; 4 Am. & Eng. Enc. Law, p. 188; Howe v. Taggart, 133 Mass. 284; Bank v. Place, 86 N. Y. 444.

The defendant also denies that the note was duly protested. She annexed to her answer an affidavit, pursuant to section 923 of the Code of Civil Procedure, that she did not receive any notice of protest. Section 168 of the negotiable instruments law provides that notice of protest may be given to the party "or to his agent in that benalf." Sections 175 and 179 provide that, where the person giving the notice and the person to receive it reside in different places, it may be sent by mail, and, if the party to receive the notice has "added an address to his signature," the notice must be sent to that address, but, if not, then to the post office nearest to his place of residence, or to the post office where he is accustomed to receive his letters. There was no address added to the defendant's indorsement. The notary mailed notice of protest to Fanny and to John Y. McKane, attorney, at Sheepshead Bay. The note was dated at Sheepshead Bay, and was ndorsed by the defendant "Fanny McKane," and there was another indorsement, "Fanny McKane, per John Y. McKane, Atty." It macured October 6, 1899. John Y. McKane, the defendant's husband, died September 5, 1899, before which date the defendant lived with him at Sheepshead Bay. After his death-but how long after is not stated-she moved from Sheepshead Bay. As it did not appear that the defendant's residence was changed previously to the time of sending the notice, it was to be assumed that there had been no change of residence up to that time, and consequently the mailing of notice to Sheepshead Bay was sufficient as matter of law.

The exceptions should be overruled, and judgment ordered for the plaintiff, with costs. All concur.

(Supreme Court, Appellate Term. April 19, 1901.)

1. APPEAL-FINDINGS OF FACT-CONFLICTING EVIDENCE.

A trial court's finding of fact on conflicting evidence will not be disturbed on appeal.

2. NEW TRIAL-ERROR OF FACT-DETERMINATION ON AFFIDAVITS-NEWLYDISCOVERED EVIDENCE.

Code Civ. Proc. § 3057, providing that when an appeal is founded on an error of fact in the proceedings not affecting the merits of the cause, and not within the knowledge of the justice, the court may determine the matter on affidavits, refers not to errors in finding of fact, but to errors

and 103 New York State Reporter

in regard to such facts as affect the regularity and validity of the proceedings on the record, which do not appear thereon, and has no application to an appeal from a judgment of the municipal court tendering affidavits and asking an order for a new trial on the ground of newly-discovered evidence affecting the merits, and produced to show that the judgment was erroneous.

8. SAME-CHANGE OF RESULT-NONPRODUCTION.

Where newly-discovered evidence was not of such a character as would have altered the result of a trial, and no satisfactory reason was offered why it was not produced on the trial, the court on appeal will not grant a new trial therefor.

Appeal from municipal court, borough of Manhattan, Fifth district. Action by Morris Tarder against Bernard Bezozi. From a judg ment of the New York municipal court in favor of defendant, plaintiff appeals. Affirmed.

Argued before BISCHOFF, P. J., and CLARKE and LEVENTRITT, JJ.

David Steckler, for appellant.

Engel, Engel & Oppenheimer (J. B. Engel, of counsel), for respondent.

CLARKE, J. This is an action for conversion of one regulator clock. The plaintiff claimed deposit of the clock with defendant as security for a loan. Defendant claimed absolute sale. Upon the trial there was a dispute of fact upon conflicting evidence. There are no exceptions urged before us, and therefore with the court's determination based upon conflicting testimony we will not interfere. Appellant, however, with his appeal, tenders certain affidavits, and upon them asks this court to order a new trial upon the ground of newly-discovered evidence. He cites section 3057 of the Code of Civil Procedure as authority therefor:

"When an appeal is founded upon an error of fact in the proceedings not affecting the merits of the action and not within the knowledge of the justice, the court may determine the matter upon affidavits or in its discretion upon the examination of witnesses or in both methods."

Said section does not apply, because there was no error of fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice. The term "error of fact," as here used, does not refer to any error or mistake of the justice in finding the facts. When applied to proceedings in error, it means such facts as affect the regularity and validity of the proceedings on the record, and still do not appear on it; such as the death, coverture, or infancy of one of the parties. Adsit v. Wilson, 7 How. Prac. 64. Further, the affidavits presented do directly affect the merits. They are of fered for the very purpose of establishing the proposition that the judgment was erroneous on the merits by tendering proof in support of the plaintiff and against the defendant. Irrespective of said seetion, said affidavits are presented to this court to obtain an order for a new trial upon the ground that the municipal court is limited in its jurisdiction to the consideration of motions for a new trial upon the grounds set forth in section 999 of the Code, and this motion is not one therein set forth, and therefore to obtain justice appellant is