Knoepfel v. Kings County Fire Insurance

wrote for affirmance, holding that the clear weight of the whole evidence at the trial was, that whatever rights plaintiff acquired with respect to signs, he derived from a memorandum contained on a slip of paper handed to him by J., at the time of the delivery of the lease to the plaintiff, which memorandum consisted of that clause in the lease to the Insurance Company which is set forth in the head-note ; and in reference to which J., in a deposition taken before trial, which was read by the consent of both parties, testified that he handed it to the plaintiff so that he might understand what rights he had, and what the conditions of the lease to the Insurance Company ; that as to the signs on the water-table, it appeared that the Insurance Company had at all times conceded to the plaintiff all that the court below had found him entitled to ; that as to the signs on the side entrance, it also appeared that plaintiff would not make, and never made, the slightest attempt at a negotiation with the Insurance Company in respect thereto, because, as he said, he had been insulted by one of the officers of the company as far back as March, 1875; that, therefore, under the propositions stated in the head notes, the compilant should have been dismissed by the court helow ; and that consequently the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Monell, Ch. J., and Sedgwick, J., .concurred.