to my sister Jane M. Tallmage;

but in case of the decease of either

FIRE INSURANCE.

children, then and in such case the survivor of either of them shall have and hold and be the owner of the whole of my said property."

The daughters petitioned the surrogate for a distribution of the estate, claiming that the bequests to them were absolute and that they were entitled to the possession of the property. The distribution was opposed by the executor and the daughters of Jane M. Tallmage, they claiming that the former took but a life interest under the will.

The surrogate took the former view of the case and decided in favor of the testator's daughters.

Delavan F. Clark, for applts. Adelbert Moot and James C. Beecher, for respts.

Held, No error; that it was the intention of the testator to give the property absolutely to his daughters in case they survived but if one died before him leaving no clildren, then that the surviving daughter should take the whole absolutely; but if neither survived him leaving children, then his sister Jane should take it absolutely.

61 N. Y., 47; €8 id., 227; 19 W. Dig., 161; 81 N. Y., 356; 91 id., 464; 52 id., 118; considered.

Decree affirmed.

Opinion by Haight, J.; Smith, P. J., Barker, and Bradley, JJ.,

concur,

TERM. FIFTH DEPT. Alphonso J. Aldrich, respt., v. The Home Ins. Co., applts.

Decided Oct., 1884.

A condition in a policy of insurance, that "if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company and so expressed in the policy," otherwise it shall be void, is not broken by reason of the existence of mortgages upon the property, no questions having been asked in reference thereto, and there being no fraudulent concealment. Where the assured, immediately after the fire, gave personal notice to the local agent, who informed the company, and afterwards the agent and the adjuster of the company called and examined the ruins, and plaintiff made a statement of his loss to them; the agent said it was not necessary to make out proofs of loss. Held, A waiver of the condition requiring written notice and proofs of loss, and the company was estopped from setting up the breach. An informality in the proofs of loss may be waived by retaining it without objection, e g., where the venue stated in the affidavit was in one county and the officer who took the affidavit resided in another.

Appeal from judgment entered upon the report of a referee in favor of plaintiff.

Action upon a fire insurance policy upon buildings, which contained a condition, that "if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company and so expressed in the policy." Plaintiff was the owner in fee of the premises, which were

Action upon a non-negotiable note executed by defendant and his brother, and made payable to plaintiff. "$150.

May 14th, 1879. For value received we jointly and severally agree to pay to Maria Evans $150; seventy-five dollars 60 days from date."

(Signed.)

It was apparent that the date was altered from the 12th to the 14th; that the figure "1" was originally a "7," and the cipher appeared to be of a lighter ink. Defendant objected to the reception of the note in evidence without giving any explanation of the alteration; objection overruled and exception taken. Defendant then testified to the fact of alteration after the note left his hands. And the alteration in the figures was virtually conceded by plaintiff's husband, who received the note for her. There was no evidence as to the figures "$150" in the corner of the note. There was no proof as to who made the alteration.

H. J. Swift, for applt.

L. C. Van Fleet, for respt. Held, That the court erred in admitting the note in evidence, and that the exception was well taken. Where a note has been altered in a material part after execution, there can be no recovery upon the note, unless authorized. 55 N. Y., 412. In such case, the plaintiff is bound to give evidence in explanation of the alteration.

the date was material. 87 N. Y., 228. So, of an alteration from "bearer" to "order." 56 N. Y., 22. The alteration of the sum expressed by the figures was a material one, although the Court would, in construing the instrument hold that the written words would control instead of the fig ures, and that the charge therefore did not affect the legal construction of the instrument.

Upon the trial, plaintiff consented to take judgment for the amount expressed in writing, and waived the amount expressed in figures.

Held, That as plaintiff claimed the larger sum and demanded it in the complaint, and thus rendered a trial and judicial construction necessary, she could not be allowed to do so.

When the note was presented for payment, defendant insisted that the note was for $75 and refused to pay any greater sum; but offered to pay the balance he claimed to be due upon the note as a $75 note. No money was in fact paid; and it did not appear that he noticed the change in the date.

Held, No waiver of the alterations. Judgment reversed and new trial ordered.

Opinion by Haight, J.; Smith. P. J., Barker and Bradley, JJ.,

concur.

ATTORNEYS.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

respondent to prevent or avoid apprehended proceedings for the foreclosure of a mortgage upon property owned by her, and for her the sum of $435 to apply in that purpose had received from

Decided Oct. 8, 1884.

An attorney-at-law who is employed to prevent or avoid apprehended proceedings for the foreclosure of a mortgage, and who for that purpose receives money to apply in paying the interest due upon the mortgage, receives such money while acting in a professional capacity, and by converting such money to his own use subjects himself to the summary control and power of the court. Although as a general principle an attorney has a lien for compensation for his services upon the fund of his client which may be received by him, such lien does not attach to money delivered to him by his client for a specific purpose to which he agrees to apply it.

Appeal by H. E. Farnsworth from an order directing the payment by him of $435 to the petitioner and certain referee's and counsel's fees.

This was a summary proceeding to compel an attorney to pay over to his client certain moneys of such client received by him while acting in his professional capacity. The main defences were that the appellant did not receive this money while acting in a professional capacity as attorney-atlaw,and that therefore the proceeding could not be maintained, and that the respondent was indebted to the appellant for professional services in a much larger sum than that received by the appellant. It appeared that the appellant had been employed by the

Vol. 20.-No. 4.

mortgage. The appellant, however, did not so apply this money, and refused to return it to the respondent.

D. M. Porter, for applt.
James Bergen, for respt.

Held, That the service the attorney was employed to perform was an appropriate legal service included within the ordinary scope of professional employment, and the money was delivered to him to secure the success of the services and subjected the conduct of the attorney to the summary control and power of the court. 26 Hun, 130.

That while it is true as a general proposition that an attorney has a lien for the satisfaction of his demands against his client upon the funds of the latter which may be received by him, still these funds were placed in his hands under an agreement inconsistent with the existence of this lien. The money was delivered to him for a specific purpose to which he had obligated himself to apply it, and he had no right to withhold it or arrest it because he had a bill for legal proceedings against the person from whom he received it.

Order affirmed.

Opinion by Daniels, J., Davis. P. J., and Brady, J., concur.

CHATTEL MORTGAGE.

N. Y SUPREME COURT. GENERAL TERM. FIFTH DEPT.

H. Vose, applt.

Decided Oct., 1884.

A finding of the referee that the facts did not justify defendant as mortgagee of a chattel in deeming himself unsafe, and in taking possession of the chattel before default, was held unsupported by the evidence; that defendant had, under the circumstances, reasonable grounds for believing

himself insecure.

Such a clause in a mortgage vests in the

mortgagee an absolute discretion to take possession of the property when he may deem himself insecure; and the exercise of this right does not depend upon the fact that he has reasonable grounds for believing himself insecure.

Appeal from judgment entered upon report of referee in favor of plaintiff for $130.97.

Action for the conversion of a mare; the defense was justification under a chattel mortgage. On the 1st of April, 1875, plaintiff leased defendant's farm for one year to work upon shares, to sow and put in a quantity of wheat and rye, and to harvest the same when the crops should mature. Plaintiff entered into possession of the farm and worked the same during the term. On the 18th of April, 1876, the parties had an accounting of their transactions under the lease, whereby it was found that plaintiff was indebted to defendant in the sum of $100, to secure which plaintiff gave a chattel mortgage upon all his interest in the winter wheat and rye growing upon the farm, and also in one

Defend

session of the property, and to sell the same before default in the payment of the mortgage, &c. On the 17th July, 1876, plaintiff sold to defendant his share and interest in the crops then standing on defendant's farm for $10, which was endorsed on the mortgage. On the next day defendant took possession of the mare, without plaintiff's consent, and sold the same at public auction. ant realized from the crops but $39, while it cost him $47 to harvest them. Plaintiff, prior to their sale, said that he did not believe the crops would pay the expenses of harvesting. The mare was worth about $50. Defendant testified that he deemed himself insecure. The referee found and held that the evidence did not justify defendant in deeming himself unsafe, and that consequently he had no right to take possession of the mare at the time he did.

D. M. Darrin, for applt. J. W. & H. J. Dinniny, for respt. Held, That the finding of the referee was not supported by the evidence, but that defendant had reasonable grounds for believing himself to be insecure. The crops were relied upon in chief to pay defendant's claim, but they had substantially failed, and the mare alone was left to secure defendant for the amount due upon the mortgage.

Such a clause in a mortgage