sance by them in the performance of their duty; and the principle of this case may easily be extended to cover county officers. The whole act, under which these sales were made by the County Treasurer, and the money received by him and paid over, has reference only to the town of Jamaica. Under it the county of Queens could receive no part of the proceeds of the sale directed, nor is it claimed that it did. Moreover in fences along side of its track, including a gate which is a part of a fence, and if through its negligence in not doing so cattle get upon its track and are killed, it is responsible. Referee's report finding that defendant's fence and gate were not in good condition and that plaintiff's horse "came onto defendant's track, over or through said defendant's fence or gate," and was injured, and awarding damages to plaintiff, sustained on the evidence. Appeal from judgment in favor of plaintiff entered upon report of a referee. Action to recover the value of two making these sales the County Treasurer did not act in his official capacity. He was selected by the Legislature as a proper person to perform horses killed by being run over by certain acts, and the selection gave defendant's cars; one in the summer certain powers and devolved certain of 1874 and the other in October, duties, but it was most undoubtedly 1875. The horse killed in 1874 (and competent for the Legislature to have exceptions to the referee's report are selected any other officer, town or taken as to this one only) was pastured county. The provisions of 1 R. S., in a lot which in one part adjoined 985, § 5, and 1 R. S., 960, § 69 (6th the railroad track of defendant. At Ed.), were intended to provide that another point there was no fence bedeficiencies occasioned by the de-tween the lot and a lane which led to faults of certain county and town a gate in the west line of defendant's officers were to be charged on and not to their respective towns and counties, and not to enlarge the liability of these. Our conclusion is that the plaintiff cannot recover in this action, and that the defendant must have judgment with costs. Opinion by Dykman, J. RAILROAD COMPANIES. Theodore Borden, respt., v. Delaware & Hud. Canal Co., applt. Decided December, 1877. track. The referee finds "that the fence along the track, including the gate, was not in good condition in the summer of 1874, and the same was not sufficient to prevent horses from coming over and through the same onto defendant's track,” and “that the horse came onto defendant's track Tanner & Potter, for applt. Ield, That the gate was part of the fence, and to be maintained in the same manner with the fence. The defendant would be liable for a con A railroad company must keep in repair the dition of the gate by which cattle escaped upon its road and were injured, to the same extent and in the same manner as if it were a fence. Spinner v. N. Y. C. & H. R. RR., 6 Hun, 600; affid., 67 N. Y., 153. Term modifying report of a referee, and ordering judgment thereon. Defendant's intestate, Peter Cagger, agreed to act as the attorney of John Magee, plaintiff's testator, in The referee finds that the gate and collecting rents due on certain leases, fence were not in good condition, and and to make the collections for the in effect that defendant had notice of taxable costs. Mr. Magee was in no it; that the injury to the horse was case to be personally liable for costs due to defendant's negligence, and of collection. Actions were brought, that the horse went through the fence and collections made to the amount or the gate. It is not sufficient to of $2,218.09. The costs of the suits show that the horse could not have in which this sum was collected were got through the gate so far as appears $631.60. Two other suits had been by the evidence. That but confirms discontinued, and at the time of Mr. the presumption that he got through Cagger's death, seven were still pendthe fence. It was purely a questioning. The costs of these nine suits up of fact. The referee has decided in favor of the plaintiff, and the evidence sustains the referee and the right of recovery. Judgment affirmed. Opinion by Boardman, J.; Sawyer, J., concurs; Learned, P. J., does not act. ATTORNEY'S LIEN. N. Y. SUPREME COURT. GENERAL Decided December, 1877. to the date of his death were $901.80. valuable to Magee, defendant was en- Where an attorney agrees to collect certain before complete performance. Wolfe claims for the amount of taxable costs in the action brought for that purpose, such v. Howe, 20 N. Y., 197. The amount costs to be deducted from the amount col- of such services would ordinarily be controlled by the terms of the contract. Clark v. Gilbert, 26 N. Y., 279. But plaintiff claims that these services were, in fact, worthless. The findings, however, are in effect that they were valuable, and of the value stated. Cagger was guilty of no lected, and he dies while some of the actions are pending and undetermined, his estate is entitled to deduct the amount of taxable costs in such pending actions accruing up to the date of his death, unless it is shown that he was guilty of such negligence or want of skill as would defeat or reduce his claim for services rendered. Appeal from order of Special negligence or want of proper skill which should prevent the recovery the plaintiff or her attorney. Whether for these services. If that be correct, the order of the Special Term should be confirmed. Bowman v. Tallman, 40 How., 1. Order affirmed. Opinion by Boardman, J. Sawyer, J., concurs; Learned, P. J., does not act. the policy became void by the cessation of occupation without permission under the condition referred to presents a more serious question. The word occupancy, as used in this policy, should be given its most extensive signification, and no forfeiture permitted without a plain violation of the condition as so interpreted. The word is synonymous with possession. AcNO-cording to Webster, occupancy is the act of taking or holding possession; to occupy, according to the same authority, is to take or keep in possession or for use. Houses in actual POLICY OF INSURANCE. TICE REQUIRED BY. OCCUPATION. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Catherine Wait, respt., v. The Agri- ordinary use, as places of abode, are cultural Ins. Co., applt. Decided February, 1878. Whether temporary absence is such a cessation of occupation as to avoid a policy of insurance under a condition contained in it, is a question of fact for the jury. By the policy on which this action is brought, the defendant agreed to insure a dwelling house of plaintiff, occupied by a tenant. On March 15th, 1876, the tenant moved his family and most of his furniture from the house. A part was left to be removed afterwards. No one was left in the house. During the night of the 16th it was destroyed by fire. The policy contained the condition, that if the dwelling house thereby insured cease to be occupied in the usual manner, then the policy shall be null and void until the written consent of the company be obtained. This is an appeal from a judgment in favor of plaintiff entered at Circuit. often left by their inhabitants for a day or more on business or for pleasure. A house so vacant would not be said to be unoccupied within the fair meaning of that word, for it would certainly be in the possession of those residing in it. So also it happens that between the occupancy of the out-going and of the in-coming tenant there will be a period of time when no person will be in the house. The law is not unreasonable and will not pronounce a house so situated to be unoccupied. Where shall the line be drawn between temporary absence which shall constitute a cessation of occupancy, and such as shall not? Does it not seem to be but fair and just that an out-going tenant shall be allowed reasonable time to remove household goods after his family has left the house. Can it be better determined what is a reasonable time, and whether the house has become unoccupied, than by leaving the question to a Held, The defects alleged to exist in the "notice and proof of loss" were waived by the officers of jury under proper instructions? 5 N. the defendant in correspondence with | Y. S. C., 619. The question in the case at bar was then properly left to the jury, and the judgment must be affirmed with costs. Opinion by Dykman, J. BANKRUPT LAW. CO-JURIS- the amendment to the Bankrupt Act, giving jurisdiction over the legal debts and assets of the bankrupt not exceeding $500, to the State Courts. Plaintiff is the assignee in bankruptcy of one Taachi, and obtained an order of arrest against defendant in an action against him for moneys of said Taachi, which defendant had collected. Defendant was held to bail in the sum of $18, and gave an undertaking executed by himself and his co-defendants. In this action, brought on this undertaking, a verdict was directed for the plaintiff for the amount claimed. A motion for a new trial on the minutes was denied, and this appeal is from the order of denial and the judgment entered on the verdict. Held, The appellant claims that the legislation of Congress has vested exclusive jurisdiction over this class of actions in the Courts of the United States. Before the amendment of the Bankrupt Law in 1874, the Court of Appeals in this State held, in Cook v. Whipple, 55 N. Y., 150, that the provisions of the Bankrupt Act conferring jurisdiction upon the District and Circuit Courts of the United States were not intended to interfere with and did not exclude the jurisdiction of the State Courts. The Bankrupt Law has been since amended by the addition of a proviso which has received various interpretations. In Olcott v. Maclean, 10 Hun, 277, the General Term in the First Department held that the proviso limits and restricts the jurisdiction of the State Courts to the class of cases arising under the proviso. The General Term in the Fourth Department have held however that the only effect of this proviso is to permit the Federal Courts to decline to entertain the class of actions falling under it. Wente v. Young, 5 N. Y. Weekly Dig., p. 295. If we were obliged to decide the question our inclination would be toward this later construction. But we hold that the case at bar is not within the inhibition, for the reason, that the cause of action did not arise under the laws of the United States and is not brought for the collection of the legal assets or debts of the bankrupt, but accrued to the plaintiff by operation of law, as the result of an action prosecuted by him in the Supreme Court of this State. Our conclusion is, therefore, that the State Court has jurisdiction in this action. Opinion by Dykman, J. FIRE INSURANCE. policies different in date and amount, N. Y. SUPREME COURT. GENERAL but alike in other respects. They TERM. THIRD DEPT. were made out to "S. D. Wood & L. Edgar Dakin v. The Liverpool and W. Moore & Co., as interest may London and Globe Ins. Co. Decided December, 1877. Where four policies of insurance, similar in every respect, except dates and amounts, and covering the same property, were issued by the same insurance company, and proof of loss was made under one policy with notice that they applied to all, Held, That such proofs were sufficient, especially as they had been held by the company without objection for nearly thirty days, and the company had offered to pay a much larger amount than that of any one policy. Where a policy insures two or more persons, "as interest may appear," one of them being a mortgagee, and the others owners, but it is not so stated, the policy is not thereby rendered void. Where the total loss was made payable to plaintiff as mortgagee, but one of the insured was equitably entitled to a part thereof; and the plaintiff's complaint was not for the full amount, but only for the actual amount of his claim, Held, That plaintiff might amend so as to claim the full amount of the loss, notwithstanding the other party had also brought suit to recover the amount claimed by him. Motion by defendant for a new trial upon exceptions ordered heard in the first instance at the General Term. Lyon & Dakin held a mortgage for $5,000 upon property owned by L. W. Moore & Co. S. D. Wood held a second mortgage upon the same property for $3,000. Lyon died, and by his will, Dakin, the plaintiff, became the sole owner of the $5,000 mortgage. Afterwards Dakin sold an interest in it to S. D. Wood, the owner of the second mortgage, retaining an interest of about $3,100. Defendant insured the property for $8,000. There were four appear." ... "Loss, if any, payable E. P. Hart, for deft. Held, That the proofs of loss were sufficient in law as to all four policies. The four policies constituted essentially a single policy, and were so treated by the proofs. In any event their retention for nearly thirty days without objection on this point, the offer to pay a sum largely in excess of the amount of any one policy, and other facts and circumstances leave no room to doubt that defendant waived and intended to waive any such objection. Held also, That the defendant cannot object that it did not know the |