
    Simonson, Respondent, v. New York City Ins. Co., Appellant.
    
      (Supreme Court, General Term, Second Department.
    
    May 9, 1892.)
    Appeal from circuit court, Richmond county.
    Action by Stephen D. Simonson, as executor of John W. Simonson, against the Hew York City Insurance Company, for salary of plaintiff’s testator as president of defendant.
    
      Argued before Dykman and Pratt, JJ.
    
      Miller, Peekham & Dixon, (Wheeler H. Peekham, of counsel,) for appellant. Stephen D. Stephens, (Sidney F. Rawson, of counsel,) for respondent.
   Pratt, J.

The only question litigated upon the trial was whether the late Mr. Simonson had estopped himself from charging against defendants 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. Railroad Co., 102 N. Y. 190, 6 N. E. Rep. 397. But the circuit judge charged the jury that if deceased stated that he served without salary, and defendants 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.  