1918.] term Opinion, per ANDREWS, J. [225 N. Y.] statute provides that the classification of risks mentioned in the policy shall mean only those last filed with the superintendent and that this rider changes this classification without authority. This is not the meaning of the "classification of risks" in insurance practice. That relates not to the perils insured against nor to the amount to be paid, but in fire insurance to the nature and situation of the articles insured; in accident insurance to the occupation of the applicant. So in this policy it is said "Albert Lloyd Hopkins, under classification referred by occupation as President." This classification was in no wise altered by the rider. The policy which is valid is the contract as the parties have agreed upon it so far as it is consistent with the statute not the contract as changed and altered by the excision of some of its provisions. What if no part of a policy defining the risks insured against had been filed? Are only the standard provisions which the law says shall be inserted in every policy to be enforced? In themselves they form no complete contract. The respondent also questions the validity of the rider under the standard clause that "No change in this policy shall be valid unless approved by the executive officer of the insured and such approval be endorsed thereon." There are two answers to this claim. This clause is for the benefit of the company and may be and was waived by it. (Belt v. American Central Ins. Co., 29 App. Div. 546-552; affirmed, 163 N. Y. 555.) Further, the policy was not changed. At its inception it included the rider. All the papers together constitute the policy and it is as agreed upon by the parties. This is the agreement which the agent was expressly authorized to make and he was prohibited from making any other. The policy never had any existence except as it contained the agreement in the rider. (Wood v. American Fire Ins. Co., 149 N. Y. 382–386.) [225 N. Y.] Statement of case. [Dec., A further objection is made that under the statute it is provided that no policy shall be issued unless such portion of the policy as purports by reason of the circumstances under which a loss is incurred to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances, shall be printed in bold-face type and with greater prominence than any other portion or text of the policy. It is said that the rider comes within this clause and is not printed in bold-face type. We cannot agree with this contention. The rider does not in any sense reduce an indemnity provided for in the policy. It speaks of a case in which the policy does not apply. It is simply a limitation of the risk. Such is evidently the construction adopted by the insurance department for a rider regarding hernia is in the same type and as it was filed it must have met the approval of the superintendent. The judgment appealed from should be reversed and that of the trial court affirmed, with costs in this court, and in the Appellate Division. HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO and POUND, JJ., concur; MCLAUGHLIN, J., not sitting. Judgment accordingly. In the Matter of WILLIAM HAYDORN, Appellant, v. EDWARD R. CARROLL, as Clerk of the Court of General Sessions of the Peace of the City and County of New York, Respondent. Appeal construction of Constitution must be directly involved to warrant appeal for that reason, without permission to Court of Appeals, under section 190 of Code of Civil Procedure. 1. An appellant, who relies upon the provision of the Code permitting as of right appeals where a constitutional question is involved (Code Civ. Pro. § 190, as amd. by L. 1917, ch. 200) as 1918.] Points of counsel. [225 N. Y.] an authority for his appeal, assumes the burden of presenting a record which establishes that such construction has been not only directly but necessarily involved in the decision of the case. If the decision was or may have been based upon some other ground, the appeal will not lie. (People ex rel. Moss v. Supervisors, 221 N. Y. 367, 369, followed.) 2. Where, upon examination of the opinion of the Appellate Division (Code Civ. Pro. § 1237) upon an appeal, taken without permission, from an order of that court unanimously affirming an order of Special Term which denied a mandamus to the clerk of the Special Sessions to permit the petitioner's counsel to inspect an indictment, it appears that the affirmance was based upon the exercise of a discretionary power, the appeal will be dismissed without consideration of the merits. Matter of Haydorn v. Carroll, 184 App. Div. 151, appeal dismissed. (Argued October 3, 1918; decided December 13, 1918.) APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 11, 1918, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to permit petitioner's counsel to examine an indictment for burglary. The facts, so far as material, are stated in the opinion. Otho S. Bowling and Robert H. Elder for appellant. An appeal lies to this court from the order of affirmance made by the Appellate Division. (Code Civ. Pro. § 190; Anderson's Law Dic. 240; Bouvier Law Dic.; Lewis v. U. S., 92 U. S. 621; People v. May, 9 Col. 85; 8 Cyc. 724, 725; People v. N. Y. Central R. R. Co., 24 N. Y. 485.) Edward Swann, District Attorney (Robert S. Johnstone and Robert D. Petty of counsel), for respondent. The order was not appealable as of right to the Court of Appeals. (Code Civ. Pro. § 190; People ex rel. Moss v. Supervisors, 221 N. Y. 367.) It must appear upon the record, either expressly or by fair implication, that [225 N. Y.] Opinion, per HISCOCK, Ch. J. [Dec., the decision or actual determination of the Appellate Division involved the construction of the Constitution. It is not enough that some point concerning the construction of the Constitution was raised and argued by counsel. The decision must have been such as necessarily involved a construction of the Constitution. (Matter of Atty.-Gen., 155 N. Y. 441, 446; Adams v. Russell, 229 U. S. 353; Western Union Tel. Co. v. Wilson, 213 U. S. 52; Enterprise Irrig. Dist. v. Canal Co., 243 U. S. 157.) The granting or refusal of a peremptory writ of mandamus being discretionary, the order is not appealable to this court unless it affirmatively appears that it was made upon grounds not involving the exercise of discretion. (Matter of Sherrill v. O'Brien, 186 N. Y. 1, 2, 3; White v. Benjamin, 150 N. Y. 258; People ex rel. N. Y. & H. R. R. Co. v. Bd. of Taxes, 166 N. Y. 154; People v. O'Brien, 164 N. Y. 57; Richards v. Wells-Fargo Co., 215 N. Y. 351.) HIS COCK, Ch. J. The facts which are relied upon to support petitioner's application are as follows: He was indicted jointly with others and was arrested and arraigned. Section 309 of the Code of Criminal Procedure provides: "If the defendant demand it, the indictment must be read, or a copy thereof furnished to him before requiring him to plead." Petitioner did not at the time of arraignment make any demand under this section, but pleaded not guilty with the reservation of a right subsequently to change his plea and demur to the indictment. Thereafter and within the time prescribed for a change of his plea he did make a demand on the respondent as clerk of the Court of General Sessions, where the indictment was lodged, for an opportunity to inspect or make a copy of the indictment. The clerk offered to read the indictment or furnish a copy thereof to him or his counsel, omitting, however, the names of those who had been indicted with him. 1918.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] Justification for this action was asserted on the ground that the other persons jointly indicted had not yet been arrested, and that, therefore, this course was permissible under section 272 of the Code of Criminal Procedure which provides that an indictment when found must be presented" and must be filed with the clerk, and remain in his office as a public record, but it must not be shown to any person other than a public officer, until the defendant has been arrested or has appeared." The defendant claims that this qualified permission was a violation of his rights under the "due process" provisions of the Constitution and that he was entitled to an unlimited examination of the indictment. The primary question presented is one of practice. The appeal is taken under and subject to the provisions of section 190 of the Code of Civil Procedure as amended by chapter 290, Laws of 1917. It is taken from an unanimous order of affirmance by the Appellate Division and without permission, and the claim of right to do this is based upon the provision of the section which permits as matter of right such an appeal where there is " directly involved the construction of the constitution of the state or of the United States." In considering the provision of the Code permitting as of right appeals where a constitutional question is involved we must keep in mind the requirement that the construction of the Constitution must be "directly" involved. The circumstance that it may be involved in some indirect and remote sense is not enough to permit an appeal. As was said by Judge COLLIN writing for the court in People ex rel. Moss v. Supervisors of Oneida Co. (221 N. Y. 367, 369): "In a certain sense, perhaps, each enforcement of a statute by a court involves its constitutionality or the construction of the Constitution of the state. That sense, however, was not within the legislative mind or intention in enacting the present |