Hun.] FURSMAN, J.: THIRD DEPARTMENT, JULY TERM, 1895. This action was brought to recover damages for an alleged trespass of the defendant in entering upon the plaintiff's lands and cutting and carrying away and converting to his own use a quantity of trees growing thereon. The plaintiff claims treble damages, and the jury having rendered 2 verdict for $250 actual damages, judgment was entered thereon for $780, besides costs. On the coming in of the verdict a motion was made to set it aside on the grounds, among others, that the damages awarded were excessive, and that the evidence did not authorize the verdict rendered. This motion was denied and an exception duly taken. There is no proof in the case authorizing a recovery for injuries to the land, and the learned trial judge correctly held that the recovery, if any, must be for the value of the property at the place where it was taken. (Dwight v. E., C. & N. R. R., 132 N. Y. 199.) The trees were cut down and taken from premises belonging to and in possession of the plaintiff, situate on a mountain in the town of Day. Their removal from that place constituted the conversion, and their value at that place at the time of the conversion is the measure of damages. There is no proof whatever of the value of the property at that place. The trees were cut and carried away from a lot on Wait Mountain. There is evidence of the value of the logs on skids at the roadside at the foot of the mountain, but there is no evidence of the cost of removing them from the place where they were converted to the roadside. Each witness who testified upon the subject refused to give an opinion as to their value at the place of conversion, and gave as a reason that he didn't know the cost of removal to the skids, or to the mill where they were to be manufactured into lumber. It is thus made apparent that the value of the property on the lot is its value on the skids by the roadside, or at the mill, less the cost of getting it there, of which there is no proof. It is true, and the learned judge correctly charged, that the plaintiff was entitled to recover at least six cents damages, because the property is presumed to have some value, but the verdict was substantial, and there is no evidence to justify it. The action was tried and submitted to the jury upon the theory that the plaintiff was entitled to recover the value of the property taken away, and the right of recovery for injury to the land occasioned HUN-VOL. LXXXVIII. 58 THIRD DEPARTMENT, JULY TERM, 1895. [Vol. 88. by the trespass was abandoned. The measure of damages, therefore, was the value of the property taken at the time and place of the conversion. As to this there is no evidence and the jury were permitted to guess what the value might be at such time and place from evidence of the value at another time and place. This we think was error. (Kennedy v. Strong, 14 Johns. 128; Dillenback v. Jerome, 7 Cow. 291; Field on Damages, 83 781-795.) Objections which seem to have some force are made also to evidence received notwithstanding defendant's objections and excep tions, but it is not necessary now to consider them. The judgment should be reversed and a new trial granted, with costs to abide the event. PUTNAM and HERRICK, JJ., concurred. Judgment reversed and a new trial granted, costs to abide the event. SUSAN BAKER, Appellant, v. WILLIAM MOORE, as Executor, etc., of Reference of a disputed claim — a decision of the referee, not stating the grounds of Upon a reference of a disputed claim against an estate under the statute, at the Held, that the decision was not a compliance with the provisions of section 1022 The General Term of the Supreme Court has the same power as the Special Term thereof to send a case back to a referee, to whom a disputed claim against an estate has been referred under the statute, to have him state the grounds of his decision as required by section 1022 of the Code of Civil Procedure. Hun.] THIRD DEPARTMENT, JULY TERM, 1895. APPEAL by the plaintiff, Susan Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 28th day of December, 1894, upon the report of a referee dismissing the plaintiff's complaint upon the merits. J. M. Whitman, for the appellant. King & Ashley, for the respondent. FURSMAN, J.: In June, 1890, a claim against the estate of Abel Scripture, deceased, was presented by the plaintiff to the executor of his last will and by him rejected. Thereafter in due course the matter was referred by the surrogate. The plaintiff presented her evidence in full before the referee, and at the close thereof a motion was made on behalf of the executor to "dismiss claim and nonsuit plaintiff on the merits" on five several grounds. Thereupon the referee granted the motion, and made and filed his decision as follows (after the usual formal statements): "I do order, decide and direct that the said motion be granted, and that the plaintiff's complaint or claim be dismissed on the merits, and that the defendant have judgment dismissing the same, with costs, and I order judgment accordingly." Afterwards, on motion, this decision was confirmed at Special Term. No other report or decision was made. This decision is not a compliance with section 1022 of the Code of Civil Procedure. There is no fact found, nor any conclusion of law stated, nor are any grounds of the decision set forth as required by this section. * * * A considerable amount of evidence was given which upon such a motion must be taken to be true. The referee gives no basis for his decision, and it is impossible to discover on which ground set forth in the motion the decision was made, or whether on all of them. It has been repeatedly held by the Court of Appeals that in such case the judgment cannot be reviewed. In Wood v. Lary (124 N. Y. 83) this was distinctly decided, and at page 87 the court says: "But in any and every case triable before a court without a jury or heard by a referee, if any evidence be presented, a decision stating separately the facts found and the conclusions of law based THIRD DEPARTMENT, JULY TERM, 1895. [Vol. 88. thereon, must be made. If it be not done the judgment cannot be reviewed." It is true that this decision was prior to the amendment to section 1022 allowing a decision "stating concisely the grounds" upon which it is made to be substituted for separate findings of fact and conclusions of law, but it is clear that the same rule must apply in either case. The latter portion of the section is only made to apply to cases where there are no separate findings, and entirely omits any reference to decisions which do not state the grounds on which they are based. In this case there was an unmistakable decision, and no grounds thereof are stated. The case, therefore, falls within the rule above stated. (MacNaughton v. Osgood, 114 N. Y. 574; Gilman v. Prentice, 132 id. 488, see 491.) The same rule prevails in the Supreme Court. (Nobis v. Pollock, 53 Hun, 441; People ex rel. Colton v. Ranson, 2 N. Y. St. Repr. 78; Drury v. Wigg, 19 Wkly. Dig. 417.) An examination of this case discloses some important questions, however, which we think ought to be reviewed. It is possible that to refuse such review for the reason above given might work an injustice to the plaintiff. A motion might have been made at Special Term to send the case back to the referee to have the grounds of his decision stated as required by section 1022, but this court undoubtedly has the same power and we think ought to exercise it in the present case. This course was pursued in Nobis v. Pollock, above cited, and may properly be followed here. Without expressing any opinion upon the other questions raised on this appeal this case is, therefore, sent back to the referee to have his decision amended in accordance with this opinion. PUTNAM and HERRICK, JJ., concurred. Case remitted to referee to amend his decision in accordance with opinion. Hun] WILLIAM HENRY ALLEN, Appellant, v. THE ST. LAWRENCE COUNTY FARMERS' INSURANCE COMPANY, Respondent. Fire insurance policy-declarations of an agent, when not binding upon the principal. Upon the trial of an action brought to recover the amount of a loss under a fire insurance agreement it appeared that the application signed by the insured stated that the insurer would not be bound until some director or agent thereof had approved of the application, and it had been received at its office in a specified city; that the application was not approved by a director of the insurer, although the agent, through whom the insurance was effected, informed the insured, upon his signing the application and paying the fee, that the insurance commenced from that time; no policy was delivered to the insured. Held, that in the absence of proof that the agent of the insurer had authority to make another or different agreement than that provided for in the by-laws and requirements of the company, the plaintiff could not recover. Where the power of an agent is apparently limited, a person dealing with him is bound to inquire concerning the extent of his authority before acting upon the faith of its existence; and a principal who has not clothed an agent with either real or seeming authority is not bound by the simple declaration of such agent that the principal is bound by his acts or statements. APPEAL by the plaintiff, William Henry Allen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 4th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the St. Lawrence Circuit. John C. Keeler, for the appellant. Thomas Spratt, for the respondent. FURSMAN, J.: The defendant is a co-operative insurance company organized under chapter 573 of the Laws of 1886. The 1st section of this act requires that every person insured in any company organized thereunder shall sign a written application for such insurance “as required by the articles of the association and by-laws of the company, and thereby become a member thereof." The company, at its annual meeting in January, 1891, resolved that there should be placed on every application a notice that such application would not be bind |