
    Stephen D. Simonson, Ex’r, Resp’t, v. The New York City Ins. Co., App’lt.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for new trial.
    Action for salary as president of defendant company.
    
      W. H. Peckham, for app’lt; S. D. Stephens (S. F. Rawson, of counsel), for resp’t.
   Pratt, J.

The only question litigated upon the trial was whether the late Mr. Simonson had estopped himself from charging against defendant the salary annexed to his office.

The grounds on which defendant claimed that he was thus estopped were that he was alleged to have stated to some of the directors of defendant that he was working without salary. Whether such a statement would of itself cut ¿off a recovery might bear a good deal of discussion. Smith v. Long Island R. R. Co., 102 N. Y., 190; 1 St. Rep., 403.

But the circuit judge charged the jury that if deceased stated that he served without salary and defendant accepted it he was bound by it and plaintiff could not recover.

The verdict, therefore, establishes that Mr. Simonson did not waive his right to receive his salary.

There is no other question in the case and the judgment must be affirmed, With costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  