text:
    HENRY BURT, Appellant, v. THE BREWERS AND MALTSTERS’ INSURANCE COMPANY, WILLIAMSBURG CITY INSURANCE COMPANY and THE MECHANICS AND TRADERS’ INSURANCE COMPANY, Respondents.

      Marine insurance — actual as distinguished from constructive loss — Abandonment— Written prevails over printed matter in contract— '■‘Memorandum clause”

    In order to constitute an ‘ actual ” as distinguished from a ‘ constructive ” total loss of a ship, as those terms are used in marine insurance, it must have become a total wreck; the ship must have perished and have ceased to exist as a ship, although fragments of the wreck may remain and may reach the home port.
    In case of an actual total loss, a notice of abandonment is of no effect; such notice is only necessary when something still exists which is capable of abandonment, and when the insured seeks to convert a partial into a constructive total loss.
    Where the words “ against actual total loss only ” is written across the margin of a policy of marine insurance, such memorandum being in manuscript, will control such portion of the printed matter as may be in conflict with the limitation thereby imposed.
    Where a ship insured against “actual total loss only” arrives in port with portions of her cargo, her main-sail uninjured, her standing figging in place, her anchors, chains, masts and spars in place and uninjured, and with portions of her running rigging, held, that the insured could not recover from the underwriters under such policy, even though the ship was injured to more than three-fourths of her value.

      Appeal from a judgment in favor of the defendants, entered upon a nonsuit directed at the Circuit, and from an order denying a motion for a new trial made at the Special Term upon a case and exceptions.

      J. A. Hathway, for the appellant.

      John O. Ghurohill, for the respondents.
   Taloott, J.:

This is an action on a policy of marine insurance, underwritten by the three companies named in the title. The plaintiff was non-suited on the trial at the Oswego Circuit, and a motion for a new trial was afterwards denied at the Special Term, and this appeal is from the judgment and order denying a new trial.

The insurance was limited by a memorandum, in manuscript, written across the margin of the policy in the following words: “Against actual total loss only.” This restriction was ignored by the complaint, which proceeded upon the theory of a oonstruotive total loss. It was, however, conceded by the justice before 'whom the cause was tried that the complaint might have been amended in this respect, and the nonsuit was placed upon the ground that the evidence failed to show an actual total loss. The restriction before mentioned was undoubtedly intended, and is to be construed as limiting the liability of the underwriters to an actual total loss, instead of a technical or constructive total loss, where the assured has the right of treating the loss as total, by means of an abandonment to the insurers. (Murray v. Hatch, 6 Mass., 465; Buchanan v. Ocean Ins. Co., 6 Cow., 318.)

The meaning of the expression “ actual ” or absolute ” total loss, as distinguished from a technical or constructive total loss, is at this day well settled, and the distinction is very plainly stated in so elementary a work as Burrill’s Law Dictionary, where it is said, an absolute total loss takes place when the subject insured wholly perishes, or its recovery is rendered irretrievably hopeless. * * * A constructive total loss takes place when the subject insured is not wholly destroyed, but its destruction is rendered highly probable, and its recovery, though not hopeless, yet exceedingly doubtful.” (Burrill’s law Diet., “ Total loss; ” Arnold on Ins., 990 ; 3 Kent’s Com-., 318, 320, 321.) Chancellor KeNt states the rule concerning constructive total loss as follows (p. 329): “ It is understood to be a fixed rule that if the ship be so injured by perils as to require repairs to the extent of more than half her value at the time of the loss, the insured may abandon, for if ship or cargo be damaged so as to diminish their value above half, they are said to be constructively lost.”

An absolute total loss is one which entitles the assured to claim of the underwriter the whole amount of his subscription, without giving notice of abandonment. A constructive total loss is one which entitles him to make such claim on condition, of giving such notice.

When the ship, in the course of her voyage, and by the agency of the perils insured against, becomes an absolute wreck, when she has been broken in pieces and dismembered so that her planks and apparel are scattered on the sea, this is a case of absolute total loss on ship, though the whole or greater part of the fragments may reach the shore as wreck. In such case, it is quite clear that the ship, as a ship, is totally destroyed, the ship has perished, only the wreck remains. (2 Arnold on Ins., 1013.) And in considering the question whether a- vessel can actually be a total loss which reaches her port of destination, though a wreck, Mr. Arnold says : “If the ship be wrecked in pieces off her home,port, so- that nothing but her fragments come to hand, there can be no doubt but the assured may recover for a total loss without notice of abandonment, * * * but if her planks still hold together, so that she retain the shape of a ship, though wholly, irreparable, so as to take the sea again, except at a cost greater than her value when repaired, the safer practice would be to give notice of abandonment.” Which notice, in the case of a ship insured, generally and without restriction to actual total loss,” would convert what would otherwise be a partial loss into a technical or constructive total loss. But where the liability of the underwriter is expressly restricted to an absolute or actual total loss, there must exist such a state of things as that the subject of insurance is wholly destroyed as that thing, in specie, which was insured, or, at all events, there must be left no spes recuperandi.

As was said by Sewall, J., in Murray v. Hatch, before cited, “whether the injury sustained, and the expenses of salvage, rendered the voyage of no value, and not worth pursuing, is not a question to be considered where the policy is restricted to the case of a total loss. That case is only proved by showing the destruction of the thing specifically. * * * But if afloat, and if she was capable of being repaired at any expense, it was not a total loss within the meaning and intent of the policy relied on in this case.”

This question has generally arisen on what is termed, in marine insurance, the “ memorandum clause,” in which the articles therein specified are warranted free from average, unless general, the meaning of which is, that there can be no partial loss, and that there must be an actual destruction of the article specified in the memorandum, and not merely such a technical loss as would authorize an abandonment.” (Kent, C. J., in Mc Grath v. Church, 1 Caines Rep., 196, op., 212; and see, also, Wadsworth v. The Pacific Ins. Co., 4 Wend., 33.) And in Le Roy v. Gouverneur (1 Johns. Cas., 226) the court says: The English construction of the words “ free from average unless general ” protects the underwriters from all losses except an actual, as distinguished from a technical total loss.

In De Peyster v. The Sun Mut. Ins. Co. (19 N. T., 272), G-Rovee, J., delivering the opinion of the court, says : The law in this State is settled that there can be no recovery in case of loss of memorandum articles when any portion thereof arrives in specie at the port of destination, although possessing no value there.” And again, in the same case: “While any portions of such articles remain in specie, capable of being transported to the terminus of the voyage, and within the control of the assured, he cannot recover for a destruction of a portion of the property, or for the loss of. value, however serious such loss may be.” (See Lee’s Laws of Shipping and Marine Ins., 459, 461; Smith’s Mercantile Law, 445; Phillipps on Ins., 233, §§ 1485, 1487; 2 Parsons on Marine Ins., 68-91; Globe Ins. Co. v. Sherlock, 25 Ohio St., 50.)

Thus it appears that the legal effect of the policy in suit was to restrict the liability of the underwriters to an actual total loss, which can only be construed to refer to the well settled definition of an absolute total loss, by a destruction of the thing in specie, and to guard against any liability to arise from a partial loss, where the expense of repairs would exceed the value of the vessel when repaired, or when, as the expert witnesses in this case, in effect, say, “ the vessel was not worth repairing.” And probably the reason for this restriction is to be found in the fact that the vessel insured was rated as B. 2, which shows that she was estimated as an old and inferior vessel, likely, if damaged at all so that repairs became necessary, to be liable to abandonment, as for a total loss, under the American rule, that a constructive total loss may arise where the repairs will exceed one-half the value of the vessel when the loss occurred. The limitation of the risk of the underwriters being confined to an actual total loss, was evidently intended to exclude the idea of repairs.

The words restricting the liability being in manuscript, control such portions of the printed matter, if any, as seem to be in conflict with this limitation. (Leeds v. Mechanics' Ins. Co., 8 N. Y., 351; 22 id., 444.)

In this case, the vessel insured, in fact, reached her home port with portions of her cargo, her main-sail uninjured, her standing rigging in place, her anchors, chains, masts and spars in place and uninjured, and portions of her running rigging. It does not appear that any of her timbers were broken, though some were displaced, and some five or six planks were gone. It is not necessary to enumerate in detail the damages which the ship was shown to have sustained. If the views herein before expressed are correct, it is evident that there was not such a total destruction of the vessel as, by the settled law of marine insurance, as we understand it, are requisite to constitute an “ actual total loss.” And there being substantially no dispute as to the condition of the vessel, nor but that she existed in specie at her home port, and though, perchance, injured to more than three-fourths of her value, as claimed in the complaint, still there was no question to be submitted to the jury.

If we have construed correctly the various decisions and the language of elementary writers on the subject, the evidence of notice of abandonment was immaterial, and was properly rejected. Abandonment is only necessary where the underwriter is liable for a partial loss, where there is something to abandon; but where the insurance is against actual total loss only, an abandonment is wholly without effect.

It is supposed by the appellant that the case of Wallerstein v. The Columbian Insurance Company (44 N. Y., 204) has laid down a different rule as regards memorandum articles from that which we have herein before relied on as the settled rule of law on the subject. We do not so interpret that case. There the insurance was upon wool and coffee, free from average unless general.

The coffee became wholly lost to the owner, that is, its entire value became lost, though the coffee remained in specie. But no recovery was allowed for the wool, though its value had been $3,961, and sold after the damage at $1,100.02 in excess of the auctioneer’s charges, and this balance was subject to a deduction of sixty per cent for salvage, leaving only $440, or about one-ninth of the value. It is true, it is said in that case, that absolute physical destruction is not necessary to constitute a total loss, but only a destruction- of the thing insured, as the thing it was when insured. The coffee, though the berry still existed, was no longer coffee in the mercantile sense of the word, and could not be restored by any amount of expenditure. We think, therefore, the nonsuit was correct, and should be affirmed.

Judgment and order refusing a new trial affirmed.

Present — MulliN, P. J., Smith and Talgott, JJ.

Ordered accordingly.


source: Caselaw Access Project

author: Talcott, J:

license: Public Domain

text:
    HIRAM JOSLYN, Respondent, v. MARIA JOSLYN, Impleaded with another, Appellant.

      Tenant in common — right of to sue co-tenant — 1 S. S., 750, § 9 — Sight of referee to allow amendments to pleadings— Oode, § 173.
    Under the provisions of 1 Revised Statutes, 750, section 9, authorizing one tenant to maintain an action of account, or for money had and received, against his co-tenant for receiving more than his share of the rents and profits of land, the right of recovery is limited to the proportionate share of the net amount actually received; and no recovery can be bad thereunder for what a co-tenant, who is himself in possession of the land, takes therefrom and applies to his own use.
    Where, in such a case, the co-tenant in possession of the land rents a portion thereof and occupies the remainder himself, it rests upon the party bringing the action to show the net amount of rent received by the defendant from his tenant; and in the absence of all proof on this subject there is no presumption that the amount thereof is equal to the whole annual value of the premises held in common.
    Where an action is brought by one tenant in common against his co-tenant, to recover for the use and occupation of an undivided one-third of a certain farm held in common by them, a referee has no power, under section 173 of the Code, to allow the complaint to be so amended upon the trial, as to convert the action into the action for an account or for money had and received authorized by the Bevised Statutes.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      J. A. Stull, for the appellant.

      J. A. Steele, for the respondent.
   Talcott, J:

This is an appeal from a judgment entered on the report of a referee. The action was for the use and occupation of one undivided third of a certain farm in Monroe county.

The defendant, Maria, after a general denial, set up that she was, during all the times mentioned in the complaint, the owner of the other two-thirds of the premises, and was a tenant in common of the whole premises. There were other allegations in the answer, setting up, in substance, that the undivided one-third claimed by the plaintiff, had belonged to the husband of said Maria, and that the plaintiff’s claim thereto was colorable and collusive, and on this question considerable evidence appears to have been taken. But that branch of the defense was finally, by consent, withdrawn from the consideration of, the referee, and it is therefore unnecessary to consider it, or any of the questions arising under it.

At common law, one tenant in common cannot maintain an action against his co-tenant to recover for the occupation of the premises held in common, nor for the rents, issues and profits thereof, though received by such co-tenant in the absence of an express agreement to that effect. But by the statute (4 Anne, ch. 16, § 27) enacted in this State (1 R. S., 750, § 9), a right of action is given in a certain inode, and in certain cases, by the following provisions, viz.:

“ One joint tenant or tenant in common, and his executors or administrators, may maintain an action of account or for money had and received against his co-tenant for receiving more than his just proportion, and the like action may be maintained by them against the executors or administrators of such co-tenant.”.

There was an entire failure to prove that the defendant occupied the premises under any agreement to pay rent, or in any manner to compensate the plaintiff for the use of his one-third. Indeed, the plaintiff himself téstífíed that he had no understanding or bargain with the said Maria, only gave her a notice that he had bought her husband’s interest. But there was evidence tending to show that Emmett Joslyn, one of the defendants, occupied under some arrangement with Maria, whereby she was to have some portion of the crops raised by him. The evidence was only explicit as to a certain twenty-one acres of wheat, which a witness testified that he bought of said Emmett in the spring of 1873, with an agreement to deliver to Maria one-half of the wheat, and straw from the said twenty-one acres, and some evidence was given to the effect that the annual rental value of the entire farm, consisting of 108 acres, was from $500 to $700.

The evidence as to the rental value of the farm was taken against the objection and exception of the defendant.

At the close of the plaintiff’s case, the defendant moved for a nonsuit, upon the ground that the action could not be maintained, as the defendant was a tenant in common with the plaintiff, and it was not claimed or proved that there was any express contract between plaintiff and the defendants, or either of them, and the defendant Emmett, was not liable, because he was occupying under the co-tenancy of the plaintiff.

The plaintiff mét the motion for a nonsuit with an application to amend his complaint, so as to correspond with the facts proved, which motion was granted and the nonsuit denied. The record, however, does,pot show that the plaintiff has in any manner availed himself of the permission to amend his complaint; but the complaint stands now in the case as a complaint for use and occupation. Sucb'a right of action does not exist in the absence of an express agreement, and the proof of the tenancy in common, was a bar to the cause of action set forth in the complaint. (Wilcox v. Wilcox, 48 Barb., 327.)

An action for money had and received may be maintained under the statute above referred to; but in such a case, the right to recover is confined to the net amount actually received, as the co-tenant is liable only for the just proportion of what he receives, not for what he takes. (Washburn on Beal Prop., 420.)

The defendant objected to the allowance of the application to amend the complaint so as to “correspond with the facts proved,” and excepted to the decision giving such permission. This permission was, as stated by the referee, “ so as to make the claim one substantially for money had and received.” Section 173 of the Code, which authorizes the allowance of an amendment of the pleadings by conforming them to the facts proved, is expressly confined to cases where the amendment does not change substantially the claim or defense. The amendment permitted in this case, we think, does substantially change the cause of action relied upon by the plaintiff, which gives no hint to the defendant Maria that she was claimed to be liable for the value of any portion of the produce of the farm which she had received from Emmett Joslyn, and she could not be prepared to enter into that inquiry, or to show the amount which she had expended in taxes and necessary repairs. The amendment appears to have been granted without the interposition of any terms, and so far as the case showed, operated most unjustly against the defendant. To change the action from a claim for use and occupation of real property to one for money had and received, was not authorized by that section of the Code which permits the pleadings to be amended, by conforming it to the facts proved.

So, too, the referee erred in receiving evidence as to the rental value of the premises. The defendant Maria, occupied a portion of the premises herself, and she pastured other portions with the cattle and horses owned by her. The referee, it appears, has allowed the plaintiff to recover against the defendant Maria, one-third of the supposed rental value of' the premises, for three years, with interest, without any proof or finding that she had received that sum, but on the ground that it was one-third of the fair rental value of the premises, and upon the idea that the defendant should have proved the value of what she did in fact receive. Conceding that a tenant in common, who permits the occupation of the premises held in common upon shares, and receives his share of the products, is liable in an action for money had and received for a proportion of the produce thus received, it rests with the plaintiff to give some evidence of the value of the products so received, and there is no presumption that it is equal to the whole annual value of the premises held in common. (See Sherman v. Ballou, 8 Cow., 306; and Woolever v. Knapp, 18 Barb., 265.)

The judgment is reversed and a new trial ordered before another referee, costs to abide the event.

Present — Mullin, P. J., Smith and Talcott, JJ.

Ordered accordingly.


author: Taloott, J.:

text:
    MARTHA M. BOUGHTON, Respondent, v. CHARLES SEAMANS, Appellant.

      Award — sufficiently definite— Costs.

    Where the parties to an action upon a promissory note submit the controversy to arbitrators, who award to the plaintiff thirty-five dollars, together with the costs to which he has been subjected in the action, such award is sufficiently definite and certain; as the amount of the costs will be fixed by the officer before whom they are to be taxed.
    The fact that the action has been discontinued or abated by the submission to arbitration, so that no costs can thereafter be recovered therein, does not prevent the arbitrators from allowing the amount thereof to the plaintiff.
    Appeal from a judgment of tbe County Court of Genesee county in favor of tbe plaintiff, on appeal from a judgment of a Justice’s Court in favor of plaintiff — a new trial being bad in the County Court. The action was brought to recover upon an award of arbitrators, to whom the subject-matter of a suit pending in the Supreme Court was submitted. The award required the defendant to pay tbe plaintiff the sum of thirty-five dollars together with the costs which she had been subjected to in the action.

      George Bowen, for the appellant.

      William, Q. Watson, for the respondent.
   Taloott, J.:

This is an appeal from a judgment rendered on a trial in the County Court of Genesee county, in an action originating in a Justice’s Court.

The action was upon a parol award, founded on a parol submission. There had been a suit pending between the parties on a promissory note, and the matters in controversy in the suit were referred, to two arbitrators. The main question in the ease is whether the award was for more than thirty-five dollars or for thirty-five dollars, with the costs, to which the plaintiff has been subjected in the action. It must be taken, under the change of the court, that the jury has found that the actual award, as made and reported by the arbitrators, was that the defendant should pay the plaintiff the sum of thirty-five dollars, together with the costs which she had been subjected to in the action. It is claimed that this award is uncertain, as no amount of costs was specified. But certainty to a common intent is sufficient in an award; an award sufficiently certain to be obligatory as a contract is valid as an award. (Perkins v. Giles, 50 N. Y., 228.)

A direction.to pay “the taxable costs of the witnesses” is as sufficiently certain. It means such costs or fees as the witnesses are entitled to bylaw.

An award to pay the charges accrued in a particular suit, without mentioning the sum is good, because they may be taxed by the proper officers. (Schuyler v. Vanderveer, 2 Caines, 235; opin. of Livingston, p. 240.)

That the action had been discontinued or abated by the submission to arbitration, so that no costs were thereafter recoverable in the action, does not constitute any reason why the arbitrators might not in their discretion allow that sum to the plaintiff, as it is not a question whether the sum was legally due or could be collected by legal process.

The question to the arbitrators, “what did you agree to ?” did not on the face of it call for any evidence touching the consultations or reasons of the arbitrators, but only a statement of what the award in fact was, there being some dispute, owing to the phraseology in which the award was delivered, as to what it was, and whether it provided for the costs. The judgment of the County Court is affirmed.

Present — Mullin', P. J., Smith and Taloott, JJ.

Ordered accordingly.


text:
    THE CITY OF ROCHESTER, Respondent, v. JOHN F. MONTGOMERY, Appellant.

      Negligence — : injury from defects in street — right of city to recover judgment it has been compelled to pay— Joint wrong-doers— principal wrong-doer — when liable to his co-delinquent.

    The city of Rochester having been compelled to pay the amount of a judgment recovered against it, hy one who had been injured while passing through one of the public streets thereof, by reason of a pile of sand negligently left unguarded by the defendant, who was engaged in constructing a house upon a lot contiguous thereto, brought this action against him to recover the amount so paid, he having been duly notified of the pendency of the former action, and that he would be held liable for what might be recovered therein. Held, that the action was properly brought and might be maintained.
    Upon the trial the defendant insisted that the former judgment was recovered against the present plaintiff, on account of its negligence in allowing the street to be obstructed, and that it thereby became a joint wrong-doer with the defendant, and could not, therefore, maintain an action for contribution. Reid, that the defense was properly overruled; that in actions of this kind the parlies were not deemed to be equally criminal, and that the principal wrongdoer was responsible to his co-delinqucnt for the damages incurred by their joint offense.
    Where the offense is merely malum prohibitum and does not involve any moral delinquency, it is not against the policy of the law to inquire into the relative • delinquencies of the parties, and to administer justice between them, although both parties are wrong-doers.
    Appeal from a judgment of the County Court of Monroe county in favor of the plaintiff, entered upon the report of a referee, and from an order denying a motion for a new trial, made upon a case and exceptions.

      Jesse Shepherd, for the appellant.

      J. B. Perkins, for the respondent.
   Taloott, J.:

This is an appeal from the judgment of the County Court of Monroe county, entered on the report of a referee in favor of the plaintiff.

One Anthony McNeish had recovered a judgment against the city of Rochester, for damages which had been sustained by him, by having been thrown from a carriage in September, 1873, by reason of obstructions then existing in Front street, a public highway of the said city. The defendant was engaged in the erection of a building on said street for the city, and under a contract made by him with the city, and the injury to McNeish was occasioned by a pile of sand left by the defendant in the highway, without inclosing the same in barriers, or placing any light at either end thereof. The pile of sand was placed where it was, by the defendant, or persons in his employ, as and for material to be used in the construction of said building, and, as the referee finds, the accident was caused by the negligence of the defendant in placing and leaving the said pile of sand in the said highway, unprotected as aforesaid.

There was no express obligation contained in the building contract requiring the defendant to guard or protect the material, which he should collect for the purpose of erecting the said building, by barriers or lights, or otherwise, so as to prevent accidents, but there was an ordinance of the common council of the said city, providing that whoever should leave any street, lane or alley obstructed with rubbish, building or other material during the night time, should cause the same to be inclosed within suitable barriers, and place lights at each end thereof, which lights should be kept burning at all hours of the night.'

Whilst the action of McNeish against the city was pending, and before the trial thereof, the defendant was notified thereof by the city attorney, with a statement that he would be liable to the city for any recovery which might be had against it in the action, and to see to the defense of the action for his own protection, and he was present at the two trials of said action, and was sworn as a witness on one of said trials. We think the decision of the referee, in holding the defendant liable to indemnify the city, was clearly right. (Robbins v. The City of Chicago, 4 Wall., 657; City of Brooklyn v. The Brooklyn City R. R. Co., 47 N. Y., 475; Mayor, etc., of Troy v. The Troy and Lansingburgh R. R. Co., 49 id., 657.)

The action of McNeish against the city, was, it is true, founded on the alleged negligence of the city, in permitting one of its streets to be obstructed, so that it was dangerous to travelers, and the appellant invokes the principle, that one joint wrong-doer cannot call upon another for contribution, and the record of the recovery by McNeish shows that the recovery was had upon the ground of the negligence of the city, and that in an action for negligence the plaintiff must be free from fault himself, in order to recover against a wrong-doer. This is true as a general rule; but in actions of this kind, the parties are not deemed to be equally criminal, nor in pari delicto, and the principal criminal may be held responsible to his co-delinquent for damages incurred by their joint offense. Where the offense is merely malum prohibitum, and does not involve any moral delinquency, it is not against the policy of the law to inquire into the relative delinquency, and to administer justice between them, although both parties are wrong-doers. (Lowell v. The Boston, etc., R. R. Co., 23 Pick., 24, op. 31.) The ordinances of the city which were introduced in evidence were not the gravamen of the action, but were only introduced, and we think were properly received by the referee in this case, on the question of negligence ; or if there can be any question about the propriety of their reception in evidence, they were wholly immaterial to the legal rights of the parties. The defendant had created a nuisance in a public highway, by means of which a party had sustained special injury. This was negligence as matter of law. The effect of proving the ordinances could only be to show that the plaintiff had in no wise consented to the act of the defendant, in creating the particular nuisance, whereby McNeish was injured. The judgment against the city, where the defendant was called upon with notice of his ultimate liability, bad an opportunity to, and actually did, participate in tbe defense, when it was shown that the cause of action originated in the negligence of the defendant, was conclusive evidence as between these parties of the rightfulness of the recovery of McNeish, and could not be answered by attempting to show that, as a matter of fact, McNeish was not entitled to recover by reason of contributory negligence on his part. (Robbins v. Chicago, before cited.) The judgment of the County Court is affirmed.

Present — Mullln, P. J., SMITH and Talcott, JJ.

Ordered accordingly.


author: Talcott, J.:

text:
    MARY H. MIX, Respondent, v. THE ANDES INSURANCE COMPANY OF CINCINNATI, OHIO, Appellant.

      Removal cf cause to United States courts — act of Ma/rch 2, 1867 — affidcmt required — corporation ccmnot malee — Policy of insurance — limitation of time of bringing action on —when action accrues — Insurable int&rest — mortgage from husband to wife.

    An application to remove a cause into the United States court, under the act of 1867, on the ground of prejudice and local interest, cannot he made hy a corporation aggregate, for the reason that in such case no affidavit can he made “hy the defendant” as required hy the said act, an affidavit hy the president . of the defendant not being a sufficient compliance therewith.

      Ctoolce v. The State Rational Bank of Boston (82 2ST. Y., 96) followed.
    Where one clause of a policy of insurance provided that no action should he sustainable thereon in any court, unless it was commenced within the term of twelve months next after any loss or damage should have occurred, and another clause provided that the loss should not he deemed payable until proofs and declarations and certificates were produced and examination submitted to if required, and that payment of losses should he made sixty days after the loss had been ascertained and proved, held, that the twelve months within which the action must be brought, did not commence to run until the expiration of sixty days after the loss had been ascertained and proved.
    A bond and mortgage executed by a husband to his wife for a just and valuable consideration, may be enforced in equity, and the wife acquires an equitable interest in the property covered thereby, and may insure the same.

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      J. Welling, for the appellant.

      J. Vcmdemberg, for the respondent.
   Talcott, J.:

This is an appeal from a judgment for the plaintiff at the Wayne County Circuit, after a trial by the court without a jury.

The action was upon a policy of insurance against fire; and the objections to the plaintiff’s recovery are : First, that the action was removed, before trial, to the Circuit Court of the United States, and that, consequently, the Supreme Court of the State of New York had been, by such removal, divested of all power to proceed in the suit. Second, that the suit was not commenced within the twelve months limited by the condition in the policy, numbered seventeen, for the commencement of an action on the policy. Third, that the plaintiff had not an insurable interest to the full amount of the judgment.

As to the first objection, it appears that the defendant is a corporation aggregate, created by the laws of Ohio, and located at Cincinnati. It was shown upon the trial that a petition was filed on the 3d of February, 1874, praying for the removal of the cause into the Circuit Court of the United States for the northern district of New York, upon the ground that the defendant believes, that from prejudice and local influence, it will not be able to obtain justice.

The proceedings for the removal of the cause into the United States court were intended to be taken under and in pursuance of the act of Congress approved March 2, 1867, entitled “ An act to amend an act for the removal of causes, in certain cases, from State courts.” No objection is made to the regularity of proceedings for the removal of the cause, except that the affidavit is made by the president' of the defendant, whereas the act of Congress requires that the affidavit, to verify the facts alleged in the petition, should be made by the defendant. On the petition, affidavit, and other proceedings for the removal of the cause, a motion was made at tbe Monroe Special Term of this court, on the 24th of February, 1874. The application was made to remove the cause, and the motion was denied upon the authority of the decision in Cooke v. The State National Bank of Boston (52 N. Y., 96).

The order of the Special Term denying the application to remove the cause, has never been appealed from, and probably, for that reason, must stand as the law of this case in this court. But, however that may be, this court must be bound by the rule adopted in Cooke v. The State National Bank of Boston, before cited, until the doctrine of that case shall be reversed by the Supreme Court of the United States. In that case as we understand it, the Court of Appeals, with some hesitation and difference of opinion, came to the conclusion to hold that the act of Congress, under which the removal of this cause was sought to be effected, could have no application to cases in which the party seeking the removal was a corporation aggregate, because, in such a case, no affidavit could be made “ by the defendant,” as required by the act. This ruling we must follow so long as it stands unreversed.

The condition of the policy on which the defendant relies for a defense in the action is as follows: “No. 17. It is, furthermore, hereby expressly provided, that no suit or action against said company for the recovery of any claim upon, under, or by virtue of the policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after any loss or damage shall occur; and in case any such suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.”

The Court of Appeals has expressly decided in several cases, that such a condition in a policy of insurance is valid and binding, and that an action must fail unless commenced within the time limited. (Ripley v. The Ætna Ins. Co., 30 N. Y., 136; Roach v. The N. Y. and Erie Ins. Co., 30 id., 546.) But the same court has also held that according to the true and just interpretation of such a condition, the time therein specified within which an action must be commenced does not begin to run until the cause of action shall have accrued. (The Mayor of New York v. The Hamilton Ins. Co., 39 N. Y., 45.) In the case cited, the condition was like the one in the policy under consideration, limiting the time for the commencement of the action to a certain period after the loss or damage shall occur. But it was also provided that payment of losses should be made by the company within sixty days from the adjustment of the preliminary proofs of loss by the parties. In the case at bar the policy provides as follows: No. 11. “ Until proofs, declarations and certificates are produced, and examination submitted to, if required, the loss shall not be deemed payable.” No. 12. “ Payment of losses shall be made sixt} days after the loss has been ascertained and proved.” According to the decision,, in the case last cited, the cause of action did not accrue on the policy in question, until sixty days after the preliminary proofs of loss had been served upon the defendant. The fire by which the insured property was destroyed occurred on the 7th day of July, in the year 1872. But the proofs of loss were not delivered to the defendant until the 24th day of August, 1872, at which date the loss upon the policy was settled and agreed upon by the defendant at the sum of $4,571.43. Consequently, according to the just interpretation of the condition, by which the time for commencing an action on the policy was limited to twelve months, that time did not commence to run until sixty days after the said 24th day of August, in the year 1872. The suit was actually commenced by service of the summons and complaint, upon the duly appointed agent of the defendant, appointed to receive service of process in the State of New York according to the laws thereof, on the 11th day of September in the year 1873, and within twelve months from the time within which the cause of action accrued. (See, also, Ames v. The N. Y. Union Ins. Co., 14 N. Y., 253.) tl)n the face of the policy the loss, if any, was made payable to Mary EL Mix, mortgagee,. as her interest shall appear.” The policy of insurance was made to William A. Mix. At the time of the issuing of the policy Mary A. Mix, the plaintiff, was the wife of William A. Mix. She was the holder of two bonds secured by mortgages on the insured property, executed to her by the said William A. Mix. One was made before the intermarriage between the plaintiff and William A. Mix, and the other subsequent to that event, and whilst the plaintiff was the wife of said William A. Mix. The amount due on both, the mortgages and remaining unpaid at the time of the fire was greater than the amount at which the whole loss was adjusted, and the same remained wholly unpaid at the time of the trial. The defendant objected to the validity of the mortgage, which was executed by William A. Mix to the plaintiff while she was his wife. This raised only the question of the amount of the insurable interest of the plaintiff, and we think the judge at Circuit correctly decided that her insurable interest equaled the amount due on both mortgages. Though the mortgage executed after coverture may have been wholly void at law, still it would have been sustained in equity in a proper case, as founded on a good and valuable consideration. The bond and mortgage purported to be founded on a valuable consideration, and it was admitted in the case that the whole amount was due thereon. Therefore, it presen fed a case where presumptively the lien of the wife could have been maintained in equity, and an interest merely equitable is an insurable interest. If the views hereinbefore expressed as to the time when the twelve months of limitation under the seventeenth condition began to run are correct, the > the evidence showing that the summons and complaint were por into the hands of the sheriff for service on the 5th day of ¡September, 1873, was wholly immaterial and could work no injury to the defendant.

The judgment is affirmed.

Present — Mullin', P. J., SMITH and Talcott, JJV

Ordered accordingly.


text:
    WILLIAM McKay, Appellant, v. THE CITY OF BUFFALO, Respondent.

      Municipal corporation — Police officers, not agents of — liability of city for acts of— cha/p. 720'o/1871— chap. 308 of 1872.
    The police officers of a municipal corporation are not to be deemed its servants or agents, in such a sense as to render it responsible foi the damages occasioned to third persons by a failure on their part, to duly and properly discharge the duties imposed upon them.

      Under chapter 720 of 1871, as amended by chapter 308 of 1872, providing for the ' establishment of a police department in the city of Buffalo, the policemen appointed thereunder are not officers of the city, but are wholly independent thereof and are in no sense its servants or agents.
    Accordingly Jidd, that where a policeman in the city of Buffalo, while shooting a dog supposed to be mad in one of the public streets of the city, in pursuance of the ordinances thereof, so negligently handled his pistol as to shoot and severely wound the plaintiff, that the city was not liable to the latter for the injuries thereby sustained.
    Appeal from a judgment in favor of the defendant, entered upon an order sustaining a demurrer interposed to the complaint, on the ground that the latter did not state facts sufficient to constitute a cause of action.

      John 0. Strong, for the appellant.

      Frank E. Perkins, for the respondent.
   Taloott, J.:

This is an appeal from a judgment rendered by the Special Term, sustaining the demurrer of the defendant to the complaint.

The action is brought against the city to recover damages, upon the allegation that one John Clingman,.a policeman, while engaged in shooting and killing a dog, supposed to be mad, in the public streets of the said city, “ so negligently, carelessly, and imprudently handled and ■ manipulated his pistol that he shot the plaintiff, inflicting a severe and dangerous wound upon him.” The defendant demurred to the complaint, for the reason that it did not set forth facts sufficient to constitute a cause of action, and the demurrer has been sustained. The demurrer of course admits ail relevant facts which are well pleaded, but not any conclusions of law, and the first and principal point urged by the appellant, is that the demurrer admits that the plaintiff was the agent of the city, and that the attempt to shoot the dog was in due discharge of the duties of his agency; in othér words, that he was the mere servant of the city in discharging the duty of shooting the. dog, and that therefore the city is liable upon the maxim respondeat superior.

The allegation in the complaint is that the defendant is a municipal corporation, and as a part of its business and duty, assumes and has authority to .appoint, and does appoint, policemen, etc., to enable it to maintain order, and generally perform all those duties with which, as such municipal corporation, it is duly and legally intrusted by law. That the defendant duly and legally appointed the said Clingman as a policeman, and ordered and directed him to perform the usual and ordinary duties of a policeman, and that he entered upon the performance of his duties. That said Clingman, while engaged in the performance of the duty with which he was intrusted as aforesaid, to wit, shooting and killing a dog supposed to be mad, in the public streets of the city, so negligently, etc., and that the injury was solely the result of the negligence and carelessness of said Clingman, while engaged in the business of the defendant, doing what he had a lawful right to do, as sueh agent of the defendant.

If Clingman was really appointed a policeman by the common council of the city, or by any of the city authorities, and the city had the authority to remove him, and had full control over the police force of the city, a question would be presented which, although not without plausible reasons to be suggested on behalf of the plaintiff, has, nevertheless, whenever presented, been determined against the liability of the municipality.

Where it is sought to make a municipal corporation liable for the acts of its servants or agents, the cardinal inquiry is whether they are servants or agents of the corporation. If the corporation appoints or elects them, and can control them in the discharge of their duties, and continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation and its local and special interest, they may justly be regarded as its servants or agents, and the maxim of respondeat superior applies. But if, on the other hand, they are elected or appointed by the corporation, in obedience to the statute, to perform a public service not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the legislature, in the distribution of the powers of government, if they are independent of the corporation as to the tenure of their office and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation for whose acts or negligence it is impliedly liable, but as public or State officers, with such powers and duties as tbe statute confers upon them, and the doctrine of respondeat superior is not applicable. This is the doctrine laid down by Mr. Dillon. (Dillon on Mun. Corp., § 772.) In the next section of his work (§ 713) Mr. Dillon says : “Agreeably to the principles just mentioned, police officers appointed l>y a city ar.e not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties.”

There is obviously a difficulty in the practical application of the distinction between those acts and omissions for which the municipality may be liable, on the ground that the act or omission is that of its servants or agents, as attempted to be expressed by Mr. Dillon, and those for which it is not liable ; and yet that there is a distinction between those acts or omissions of certain classes of officers who are appointed and controlled by a municipal corporation, and for which the municipality is liable in damages, and those for which no such liability can be alleged, is obvious to the common understanding. The attempt to hold a municipal corporation responsible for the shortcomings or negligent performance of their duties by the policemen of a city, is denied by the common judgment of men, without, perhaps, the ability to put into clear language the grounds upon which the case is to be distinguished from those, in which it is generally conceded that the municipality is responsible for the due and proper performance of the duty devolved upon the agent. This difficulty has been presented in various judicial examination's of the subject, where the decision has been adverse to the liability of the city, and yet the attempt to express in precise language the difference between the cases in which the maxim respondeat superior applies and cases to which it has no application, is not altogether satisfactory. In Stewart v. The City of New Orleans (9 Lou. Annual Rep. 461), a detachment of the police officers of the municipality was ordered by its chief to suppress unlawful assemblages of slaves in cabarets. In the performance of this duty they entered a dram-shop in which the slave of the plaintiff was found. The slave attempted to escape, was pursued and overtaken by the watch, and in capturing him they inflicted wounds of which he subsequently died. It was shown that be might have been arrested without the homicide. The action being brought in one of the District Courts of New Orleans, the plaintiff there recovered, but the judgment was reversed by the Superior Court by a divided bench. In that case Judge CaMpbell, delivering the opinion of the majority said: “ The judgment, we think, is erroneous, and the error results from a failure in the application of the principle to make the proper distinction between the liability of a municipal corporation for acts of its officers, in the exercise of powers which it possesses for public purposes, and which it holds as part of the government of the country.”

In Buttrick v. The City of Lowell (1 Allen [Mass.], 174), which was not strictly an action for negligence, but for an illegal assault and false imprisonment, the court said : Police officers can in no sense be regarded as the agents or servants of the city. Their duties are of a public nature, their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising the functions of government, but this does not render them liable for their unlawful or negligent acts. * * * Nor does it make any difference, that the acts complained of were done in an attempt to enforce an ordinance or a by-law of the city. They are public laws, of a local and limited operation, designed to secure good order, and provide for the welfare and comfort of the inhabitants. In their enforcement, therefore, police officers act in their public capacity, and not as the agents or servants of the city.”

In Dargon v. The Mayor of Mobile (31 Alabama, 469), where a municipal corporation had authority, under- its charter, to pass ordinances forbidding slaves to be abroad at night, or to assemble together without lawful permission, it was held that the corporation was not liable at the suit of the owner, for the loss of a slave who was negligently killed by an officer of the city guard in attempting to arrest him for a breach of such ordinance, on the ground that the power of the city guard was of a political character, conferred on it for public purposes, and that the action was not based on any omission on the part of the city to discharge any duty imposed upon it. And in the opinion delivered in the case, various decisions holding municipal corporations liable for negligence of agents in the discharge of duties imposed by contract and otherwise upon the corporation, were, examined and discrim-mated from tbe cases of injury, resulting from the negligence of a police officer in discharging such public duties. The principle upon which these cases proceeded is shadowed forth in the case of Martin v. The Mayor of Brooklyn (1 Hill, 550), and is cited with approval in most of the cases on the subject. In that case, the court, CoweN, J., says: “ It is impossible to maintain that a village corporation is liable for a wrong committed by its officers. It is a political body, bound, I admit, and liable to an action when incurring a debt through its corporate officers, acting within the line of their duty, and not for either a nonfeasance or misfeasance committed by independent corporate officers. * * * I concede the liability also of municipal corporations when the duty of repair or the like is absolute, and due from them as a corporation. * * * The relation of master and servant does not exist between the corporation and .its officers.”

If, then, the allegations' of the complaint are to be understood as averments that the policeman mentioned in the complaint was, in fact, appointed by the corporation of the city of Buffalo, and if the shooting of the dog supposed to be mad, and running at large in the public streets, was a part of his duty as such policeman, in obedience to an ordinance of the city, we think the corporation would not be responsible for any negligence in the discharge of such duty, whereby the plaintiff was injured.

But there is another ground upon which the agency of the policeman, Olingman, in behalf of the city may well be denied. By chapter 720 of the Laws of 1871, the city of Buffalo is constituted a separate police district, and a police department was thereby established with the powers and duties by that act provided. By the act, it is provided that the police department shall consist of a board of police commissioners, and a police force appointed by the said board. The management and control of the department are vested in the commissioners. Patrolmen are to be appointed and removed by the board ; and the act especially provides (§ 37), that the said board of police commissioners shall at all times cause the ordinances of the city, not in conflict with the act, to be properly enforced.

By the act of 1871, the said police commissioners were to be appointed by the chief judge of the Superior Court of Buffalo. By an amendatory act (cbap 308 of the Laws of 1872), the mayor for the time being, is made ex officio one of the police commission ers, and he, by and with the advice of the common council, is to appoint the two other commissioners, but no control whatever over the police force is given to the common council or to the city corporation. The policemen are employed, disciplined, paid and discharged by, and responsible to the board of police commissioners, who have full and absolute control over them in the discharge of their duties. In fact, the police force is entirely separated from the city government, and constitutes an independent organization over which the city has no control whatever. The city has no authority to appoint a policeman, and the allegations in the complaint that the city appointed the said Clingman as a policeman, avers an appointment which, if it is to be understood literally, they had no authority to make. Ve understand, however, from what transpired on the argument, that the plaintiff only contends that the policemen are, in legal effect, appointed by the city corporation, though, in fact, appointed by the board of police commissioners. We do not agree that such is the legal effect of an appointment under the acts of 1871 and 1872, but, on the contrary, that the policemen appointed under those acts are officers wholly independent of the city, and in no sense its agents or servants, so that the maxim respondeat superior can have no application in this case, inasmuch as the city corporation is not the superior.

In the case of Atwater v. The Mayor, etc. (31 Md., 462), it was held that the city of Baltimore was not responsible for the acts of policemen, because the board of police commissioners were not made authorities of Baltimore by any provision of law, and the city was not responsible, because it had no control over the police commissioners. (See, also, Hafford v. New Bedford, 16 Gray, 299; Fisher v. The City of Boston, 104 Mass., 87; Martin v. The Mayor of Brooklyn, supra; Lorillard v. The Town of Monroe, 11 N. Y., 396; Chegaray v. The Mayor, etc., 13 id., 220.)

We think, therefore, the demurrer was well taken, and was properly sustained.

The judgment is affirmed.

Present — MuixiN, P. J., Smith and Talcott, JJ.

Ordered accordingly.


author: Mullin, P. J. :

text:
    HENRY BECKWITH and others, Commissioners of Highways of the town of Brighton, Plaintiffs, v. HARVEY WHALEN, as Sole Commissioner of Highways of the town of Penfield, Defendant.

      Bridge — over boundary line of towns — action by one town to recover one-half the expense of its construction — Abandonment of highway i/n one town — Presumption— wising from negleet to repair for six years.

    This action was brought in behalf of the town of Brighton, to recover from the town of Penfield one-half of the expense of building a bridge over a creek, forming the boundary line between the two towns. Upon the trial it appeared that a road had been laid out in the town of Penfield leading to the bridge, and a portion thereof had been opened and worked, but that for a distance of about 200 feet east of the creek it ran through a marsh which was overflowed to the depth of several feet during high water, and that it could only be used in very dry weather.
    This portion of the road had never been worked. Held, that as the portion of the road which ran through the marsh required to be worked, in order to render it possible to travel thereon, and as no labor had been expended thereon for more than six years after the road was laid out, that the highway must be deemed to have been discontinued or abandoned, and that the town was not liable to contribute to the expense of building a bridge to connect therewith.
    Exoeptions ordered to be heard in the first instance at the General Term, after a nonsuit at the Monroe county Circuit.

      J. 0. Goohrane, for the plaintiffs.

      J. H. Matrtindale, for the defendant.
   Mullin, P. J. :

The plaintiffs brought this action as commissioners of highways of the town of Brighton, in the county of Monroe, to recover of the defendant, as commissioner of highways in the town of Pen-field, in the same county, one-half of the expense of building a bridge across Irondequoit creek, that separated the two towns.

The commissioner of Penfield refused to unite in erecting the bridge across said stream, or to contribute to the expense, or recognize any liability of his town to aid in the construction of a bridge across said stream.

The plaintiffs had taken all the steps required to be taken by chapter 225 of the Laws of 1841, as amended by chapter 383 of the Laws of 1857, in order to compel the town of Penfield to pay its proportion of the cost of erecting the .bridge, if it was legally liable to contribute to pay the expense thereof.

In 1858 a highway was duly laid out by the commissioners of the town of Penfield, from a highway in said town known as the “ Old Dugway road,” to the center of Irondequoit creek. Part of the road was opened and worked; but for a distance of some 200 feet easterly from the creek the road as laid out, ran over a marsh which is overflowed to the depth of several feet in high water, so that it could not be traveled over by teams, except in- the dryest weather; and it seems to be doubtful whether a team ever did pass over it. No work was ever done upon this marsh.

In 1858 a road was laid out in the town of Brighton extending from “ Corwin’s,” so called, to the center of said creek, at the terminus of above mentioned road in Penfield. This road ran for a part of the distance over a marsh. The commissioners of highways, at the time of building the bridge in question, or soon after, constructed trestle work from the Brighton end of the bridge westerly, to the high land over which the road was laid out, thereby enabling teams to pass over the marshy ground, and afforded a passage for the waters of the creek to pass through in high water.

When the commissioners of Brighton built the bridge across the creek they did nothing to make a road across the marsh on the Pen-field side of the creek, but left it as they found it and as it had been for many years.

At the close of the evidence the defendant’s counsel moved for a nonsuit, on the following grounds, among others, to wit:

Pirst, that the testimony does not show a highway has been actually opened and worked and traveled upon the route surveyed; and second, there is no evidence of a completed bridge.

It was proved that the new road had been opened and worked from the old dugway road, the place of the commencement of the road in question, to the eastern margin of the marsh' in Penfield.

The Commission of Appeals reversed a former judgment of this court, affirming a judgment at Circuit nonsuiting the plaintiff, the judge at the Circuit holding that no action could be brought by one town against another to recover a part of the expense of building a bridge between such towns, until application had been made to a Special Term or to a justice of the Supreme Court, pursuant to the provisions of chapter 639 of the Laws of 1851.

The General Term did not agree with the judge at the Circuit as to the necessity of an application to a justice of the Supreme Court or to a Special Term, but affirmed the judgment on the ground that the road had not been opened and worked throughout its length, within six years from the time it was laid out.

The Commission of Appeals held that it was not incumbent on the town, suing to recover one-half of the expense of building a bridge, to prove that the highway had been worked throughout its whole length, because it was probable that the land over which a part of it was laid might be in such a condition, as not to require labor to be laid out on it to make it suitable for travel.

The plaintiffs on the former trial were nonsuited on the opening of their counsel, and we may therefore assume that the case, as it was presented to the Commission of Appeals, did not show that the road was laid over a marsh on which no work had ever been done, nor that it was in a condition to be traveled over by teams unless, perhaps, in the driest part of the summer.

The commissioner who delivered the opinion of the Commission of Appeals holds, that when the plaintiff brings an action to recover part of the expense of building a bridge upon a highway legally laid out, it is incumbent on the defendant to prove that it was not opened and worked within six years from the time it was laid out.

He says: The mere fact that a portion of the highway was not worked within six years, does not prove that it was abandoned or ceased to be traveled as a highway. It may well be that such a portion, from its peculiar location, or the character of its soil, did not require any work thereon, or that the length thereof may have been so short as not materially to interfere with travel, and it certainly cannot be inferred from the mere neglect or failure to work a part of a road, that it has wholl/y and entwel/y ceased to be a road or highway for any purpose whatever.”

On tbe last trial the existence of the marsh and the impracticability, if not impossibility, of traveling over it with teams was clearly shown, and as the marsh adjoined the bridge, its utter uselessness to the inhabitants of the town of Penfield was conclusively established.

That portion of the highway over the marsh being impassable without labor being laid out upon it, and no labor having been laid out upon it for more than six years after it was laid out, it must be deemed to have been discontinued or to have ceased to be a highway.

I cannot agree with the learned judge who tried the case at the Circuit the last time, that the town of Brighton was under any obligation to extend the bridge or to make a road across the marsh in Penfield. If they should build it as a part of the bridge they could recover but one-half of the expense. Thus Brighton would be paying for Penfield one-half of the expenses of the work beyond the bridge, in the latter town.

The statute authorizes the town erecting the bridge to recover one-half of the amount paid therefor. The bridge was built by contract, and Brighton could recover, if any thing, one-half of the contract-price.

Will it be claimed that the contractor was bound by his contract to build a bridge across the creek, to construct trestle work over the marsh or make an embankment over it so that teams could travel over it ? It is not necessary to attempt to define what constituted a bridge across the creek in question ; it is enough to know that it did not embrace 200 feet of embankment or trestle work beyond the wooden structure and the piers on which it rested.

The motion for a new trial must be denied and judgment of non-suit entered.

Present- — -Mulliit, P. J., SMITH and Taloott, JJ.

New trial denied and judgment of nonsuit ordered.


author: Mullin', P. J.:

text:
    NELSON WITHERIL, Plaintiff, v. HARVEY S. MOSHER, H. ENGLISH and others, Defendants.

      Villages —powe/r of to raise money — Submission of question to electors —■ what designar tion of mnount sufficient —• chap. 291 of 1870.
    Where the trustees of a village, by virtue of chapter 291 of 1870 authorizing villages to raise money for extraordinary expenditures, adopted a resolution “that the sum of $1,000, or so much thereof as shall be necessary, be and is hereby assessed upon the taxable property within the corporate limits, for the purpose of purchasing a good fire engine and the necessary hose,” etc., and the same was, as required by said act, submitted to the electors at the annual election and adopted by them, held, that the resolution was a sufficient compliance with section 4 of title 4 of said chapter, allowing the trustees to raise money for extraordinary expenditures by submitting a resolution stating the amount to be raised and the specific object to the electors of the town, and that a tax levied in pursuance thereof was valid.
    The provisions of section 2 of title 2 of said act, declaring that the trustees shall, within twenty days after any extraordinary expenditure shall have been voted, proceed' to assess the amount thereof, is directory and the validity of the tax is not effected by the failure of the trustees to assess the same within the twenty days.
    Motion for judgment on a verdict directed in favor of tbe plaintiff, subject to the direction of the General Term.
    This action was brought to recover the value of certain personal property, alleged to have been converted by the defendants.
    The defendant Mosher justified the taking of the property by virtue of an assessment roll and warrant, issued to him as the collector of the village of Arcade. It appeared that on the 27th of October, 1874, a special election was held in said village, at which a resolution was adopted by the board of trustees directing the sum of $1,000, or so much thereof as might be necessary, be raised for the purpose of* purchasing a fire engine for the village. It was the collection of the tax imposed in pursuance of the resolution, that the plaintiff claimed to be illegal and unauthorized.
    Section 4 of title 4 of chapter 291 of 1870 (the act under which the tax was imposed) provides as follows, viz.: “ The trustees shall have power to raise money for an extraordinary expenditure for any purpose- by assessment and tax, by submitting the resolution stating the amount to be raised, and the specific object for which, to the annual election or to a special election of the legal electoi’s entitled to vote on such questions, to be held as in this act directed.”
    Section 2, title 6 of said act provides that, “ they ” (the trustees) “ shall also, within twenty days after any extraordinary expenditure, shall have been voted by the legal electors at a special election, proceed to assess the amount in the manner herein directed as to ordinary expenditures.”

      JE. M. Hill, for appellant Mosher.

      1. 8am. Johnson, for appellants English and others.

      Humphrey dh Lockwood, for the respondent.
   Mullin', P. J.:

By section 4, title 4, of chapter 291, of the Laws of 1870, entitled “An act for the incorporation of villages,” it is provided that the trustees shall have power to raise money for an extraordinary expenditure for any purpose by assessment and tax, by submitting a resolution stating the amount to be raised and the specific object for which it is to be raised, to the annual election or to a special election of the legal electors entitled to vote on such questions, to be held as in said act provided.

The defendants ar-e the trustees and collector of the village of Arcade, in the county of Wyoming, a village incorporated under the above statute.

The trustees, deeming it for the interest of the inhabitants of said village that a fire' engine, with a suitable quantity of hose, should be purchased for the use of said inhabitants, passed at a meeting of said trustees, held in said village on the 16th October, 1874, a resolution of which the following is a copy, to wit:

It was unanimously “resolved that the sum of $1,000, or so much thereof as shall be necessary, be and is hereby assessed upon the taxable property within the corporate limits, for the purpose of purchasing a good fire engine, and the necessary hose accompaniments.”

A meeting of the' electors of said village was duly called and beld, and the foregoing resolution was submitted to said electors, and they voted thereon by ballot, and the resolution was adopted by a majority of ten votes.

The trustees, acting as assessors, assessed the amount of $1,000 on the real and personal property in said village, and annexed a warrant to the tax roll commanding the collector to proceed and collect said tax.

The collector, by virtue of his warrant, proceeded to seize the property of such of the persons assessed, as neglected or refused to pay the tax, and sold thfe same at public auction and paid the proceeds into the treasury of said village.

The several persons whose property was sold by the collector assigned their claims against the collector to the plaintiff.

The legislature intended to require that the question, whether money should be raised for extraordinary expenditures in villages incorporated under the general law above referred to, should be submitted to the electors of the village before the labor to be done or property to be purchased, for which the money to be raised is to be applied in payment, is done in the one case or purchased in the other.

It must have been understood by the legislature that in many, if not in most instances, it would be impossible to know the precise sum that would be required to pay for contemplated improvements or for property needed for the use of the corporation.

Prudence would dictate to the trustees to propose to the electors to raise a sum sufficiently large to cover the whole expense intended to be incurred, and thus avoid a second tax to make up a deficiency, and on the other hand to avoid raising too much, thereby leaving in the treasury an amount not needed.

The resolution submitted to and adopted by the electors gave effect to the intention of the legislature, and adequately protected the tax-payers as far as it was possible for the trustees to protect them,, while ignorant of the precise sum needed.

TJnder the resolution the trustees could raise not to exceed $1,000, but might raise as much less as should be requisite to pay for the engine and hose.

It would be a very absurd construction of the section under consideration to make it the imperative duty of the trustees to raise the whole sum voted by the electors, should it be ascertained that a smaller sum was all that was needed.

It seems to me the resolution was in accordance with the statute.

The plaintiff’s counsel objects to the legality of the proceedings of the trustees, because they did not within. twenty days after the adoption of the resolution by the electors proceed to assess the amount voted in the manner prescribed by the statute.

■ The statute is directory merely, not mandatory. The act relating to assessing property in school districts for school purposes requires the tax voted at a distinct meeting to be assessed within one month after the meeting at which it was voted (1 R. S., 483, § 82), but it was held that the trustees could lawfully assess it after the expiration of the month. (Gale v. Mead, 2 Den., 160; Thomas v. Clapp, 20 Barb., 165.)

If the statute is directory in the one case, it surely was in the other.

Judgment is ordered for the defendant on the verdict.

Present — Mullin, P. J., Smith and Taloott, JJ.

Judgment for defendant on the verdict.


author: MulliN, P. J.:

text:
    MARY E. MATSON, Plaintiff, v. THE FARM BUILDING FIRE INSURANCE COMPANY, Defendant.

      Policy of insurance — prohibition against use of k&rosene oil— construed as meaning habitual use.

    Where a policy of insurance provided that the company should not he liable for any loss occasioned by the use of kerosene oil, burning fluid or any chemical oil as a light in any barn or outbuilding, held, that it was intended to prohibit the habitual use of the said oil in the buildings, and not its use upon a single occasion.
    Accordingly, where the plaintiff’s husband entered her barn one morning with a kerosene lamp for the purpose of catching some fowls, one of which flew against the lamp, knocked it over and thereby occasioned the burning of the building, held, that she was entitled to recover the amount of her insurance in an action brought by her upon a policy containing the said conditions.

      ApplicatioN for judgment by the plaintiff upon a verdict directed in her favor, subject to the opinion of the court at General Term.
    The action was brought upon a policy of insurance. The defendant set up as a defense a violation of a condition of the policy, providing that “it be covenanted as a condition of this contract that this company shall not be liable for any loss caused by invasion, * * * nor for any loss arising from the use of open lights in barns or where shavings are made, nor occasioned by the use of kerosene oil, burning fluid or any chemical oil as a light in any barn or outbuilding, or from storing ashes in wood-houses, barns or dwellings.”

      8. N. Dada, for the plaintiff.

      8. Earl, for the defendant. The plaintiff agreed that the policy should be void and the defendant not liable, in case kerosene oil was used as a light in the barn, by which the fire was occasioned; and as against such a loss the defendant does not insure or agree to become liable. (Mead v. N. W. Ins. Oo., 7 N. Y., 530; Westfall v. The Hudson R. Ins. Qo., 12 id., 289, 293; De Hahn v. Hartley, 3 Term, 313; The Jeff. Ins. Go. v. Gotheal, 7 Wend., 72; Farmers' Ins. and Loam, Go. v. Snyder, 16 id., 481; CP Neil v. The Biff alo Fire Ins. Go., 3 N. Y., 122; 1 Phillips on Ins., 410, chap. 9, § 10; Flanders on Ins., 204; Riply v. JEtna Ins. Go., 30 N. Y., 136; Judge Mullin’s opinion .at pages 162 and 163.) It is no matter in this case whether the plaintiff knew of the use of the kerosene oil or not, or whether she had knowledge that her husband took the lighted kerosene oil lantern to the barn to catch the chickens. The effect of the breach of the warranty is the same, and the question of liability of the defendant is not to be determined by the fact whether the husband used the kerosene oil lantern with her knowledge or not. (1 Phillips on Ins., 410, chap. 9, § 10; 1 Arnould on Ins., 587 [584] ; Mead v. N. W. Ins. Go., 7 N. Y., 530; Murdoch v. The Ghenango Go. Mer. Ins. Go., 2 id., 210; Dunoam, v. Sun Fire Ins. Go., 6 Wend., 488; Worcester v. Worcester Ins. Go., 9 Gray, 27; Flanders on Ins., 480; St. John v. Am. Mer. Fire and Marine Ins. Go., 11 N. Y., 516 ; Haywood v. London and Liverpool Life and Fire Ins. Go., 7 Bosw., 385; Briggs v. North Am. and Mer. Ins. Go., 53 N. Y., 446.)
   MulliN, P. J.:

The plaintiff insured in the defendant’s company two barns and other real and personal property, for the term of three years from the 9th day of May, 1873. The policy contained the following, amongst other provisions and conditions, to wit, that the defendant should not be liable for loss occasioned by the use of .kerosene, burning fluid, or any chemical oil, as a light, in any barn or outbuilding.

On the morning of the 19th September, 1874, the plaintiff’s husband took a kerosene lamp and went into one of the barns to catch a couple of fowls. He placed the lamp on the end of a plank and then caught one of the fowls; while in pursuit of the other a fowl flew against the lamp, throwing it over in the straw, which took fire and the barn was destroyed.

On the trial, the defendant’s counsel asked for a nonsuit, on the ground that the condition above mentioned was violated and the policy thereby rendered void. The court, without expressing any opinion on the question, advised that the counsel consent that a verdict be taken tor the plaintiff, subject to the opinion of the court at General Term. They consented, and a verdict was taken accordingly.

The plaintiff now applies for judgment on the verdict.

Policies of insurance are to have a reasonable, as distinguished from a strained or technical construction and when the language is susceptible of two constructions, that one most favorable to the insured must be adopted, as the language is that of the insurers rather than that of the insured. (Rann v. Home Ins. Co., 59 N. Y., 387; Breasted v. The Farmers’ Loan and Trust Co., 4 Seld., 299-305; Reynolds v. Commerce Fire Ins. Co., 47 N. Y., 597, 604, 605.)

The condition that the defendant shall not be liable for a loss occasioned by the use of kerosene oil meant the habitual use, as distinguished from the use upon a single occasion.

To construe the condition so as to preclude the taking into the barn a kerosene lamp once in a period of one, two or three years would be exceedingly unreasonable.

Some one of the family of the insured might, while in the barn in the night, fall or break a limb, or a horse might kick and fatally injure him or her, and the only light in the dwelling-house be a kerosene lamp (the policy does not prohibit the use of kerosene in the dwelling-house), would it not be exceedingly unreasonable to hold the policy void, because another member of the family took such a lamp and carried it into the barn in order to render aid to the person injured ?

The use prohibited, of kerosene, is the habitual, and not the occasional use.

In Dobson v. Sotheby (22 E. C. L., 481), the policy was upon premises “ where no fire is kept, and no hazardous goods are deposited buildings were insured as thus described. The buildings were agricultural buildings, and required tarring, and a fire was lighted inside and a tar barrel brought into the building for the purpose of performing the necessary operations. In the absence, and by the negligence of plaintiff’s servants, the tar boiled over, took fire, communicated with that in the barrel, and the premises were burned down.

An action was brought on the policy, and it was insisted, on behalf of the company, that the plaintiff could not recover, as lighting the fire in the barn was in contravention of the policy, but the court held . the plaintiff entitled to recover, as the policy prohibited the habitual, and not the occasional use of fire in the building.

The same principle was asserted in O'Niel v. The Buffalo Fire Insurance Company (3 Comst., 122, 126, 127).

The plaintiff is entitled to judgment on the verdict.

Present — MulliN, P. J., Smith and Taloott, JJ.

Judgment ordered for the plaintiff on the verdict.


author: MulliN, J. :

text:
    ISAAC SMALL, Respondent, v. WILLIAM H. ROBINSON, Appellant.

      Joint owners of personal property — sale of by one to himself — Fraud.
    The defendant, one of several owners of a canal boat, sought to obtain from his co-owners permission to sell it to one Youngs for $2,500. All except the plaintiff consented, whereupon the defendant sold the boat and gave to each pwner, including the plaintiff, a checff for his share of the $2,500, all of which were paid. At the time of the sale it was agreed "between Youngs and the defendant that the latter should own one-half the boat on paying half the price. Subsequently the boat was sold to other parties for $4,000.
    The plaintifE having learned of the secret agreement between defendant and Youngs, brought this action to recover his share of the surplus realized by the defendant upon the second sale. Held, that the secret agreement rendered the first sale void, and that plaintifE was entitled to ratify the second sale and sue for his share of the price received thereon.
    Where one joint owner of personal property assumes, without authority, to sell the interest of other owners, they may repudiate such sale and sue for the conversion of the property, or they may ratify it and sue for their share of the money received.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Geo. W. Smith, for the appellant.

      Fred. J. Small, for the respondent.
   MulliN, J. :

In June, 1871, the plaintifE, defendant, and Charles A. Girvon, and William G. Milligan, were owners of the canal boat Independence, then in charge of the defendant; he, defendant, desired to sell the boat, and for that purpose applied to his co-owners to consent to a sale of her to one John Youngs, for $2,500. Plaintiff and Milligan refused to consent to the sale. Girvon gave his consent to sell at the amount proposed. Soon after Milligan gave his consent to the sale, and thereupon a sale was made, by defendant, of the whole title, to Youngs, for $2,500, payable in five yearly payments of $500 each, with interest, for which he gave his own notes.

By an agreement between Youngs and the defendant the latter was to own one-half of the boat and pay one-half of the notes.

When Milligan gave his consent to the sale to Youngs he did not know that defendant was interested in the purchase.

Soon after the sale was made, the defendant sold the boat to Remington & Sons for the sum of $4,000.

After the sale to Youngs, defendant gave to each owner a check for his share of the $2,500. The plaintiff indorsed on the back of the check given to him the words: “ Received towards the payment of the boat Independence.” The other owners accepted the check, and those checks, together with the one taken by plaintiff, were presented to the bank, on which they were drawn, and paid.

The plaintiff and Milligan did not learn of the sale to Remington & Sons until a short time before this action was commenced.

This action is brought by the plaintiff to recover his portion of the amount received by the defendant for the boat, over and above the $2,500. Milligan has assigned his claim for the same amount to the plaintiff, who demands judgment for both claims.

The ground on which the action is brought is, that the -sale to Youngs was fraudulent and void, because the defendant, who made the sale as agent for his co-owners, was interested in the purchase, and that the only legal sale was to the Messrs. Remington, and that being for $4,000, plaintiff and Milligan are entitled to their shares of that sum.

The defense is a denial of some of the allegations of the complaint, and an allegation that all of the co-owners consented to the sale to Youngs except the plaintiff; and defendant alleges he believes the plaintiff also consented, and that such owners ratified and approved the sale. It is also alleged that the boat was not worth more than $2,500 at the time of the sale to the Messrs. Remington, and hence the plaintiff and Milligan have not been defrauded.

The referee finds the facts, substantially, as above stated, and his conclusion of law is that the sale to Youngs is a nullity, and that defendant is indebted to the plaintiff in the sum of $974.66.

One joint owner of personal property can only sell his own interest in it; if he assumes to sell the interest of the other owners they may repudiate it and bring trover for its conversion, or they may ratify the sale and sue him for their share of the money received. (Tyler v. Taylor, 8 Barb., 585; Wilson v. Reed, 3 Johns., 175; Nowlen v. Colt, 6 Hill, 461; Cochran v. Carrington, 25 Wend., 409.)

The co-owners, by receiving their shares of the price for which the boat was sold, would have ratified that sale had they known that defendant was interested in the purchase; but they did not then, and there was therefore no ratification.

In selling the boat to Youngs defendant acted as the agent of the other owners, and could not become a purchaser without their knowledge and consent.

It was a gross fraud Upon them for defendant to sell to himself their property, and that fraud rendered the sale void.

The plaintiff and Milligan are willing to treat the sale to the Messrs. Remington as valid, and demand their respective shares of the price paid by these gentlemen for the boat. This they are entitled to.

The defendant’s counsel insists that the plaintiff and Milligan were not defrauded, because they have already received their shares of the full value of the boat; that the fraud, if there was any, was damnum absque únjuria.

Such a proposition is simply monstrous. If it should be held to be law, a more perfect and complete cover for fraud could not be invented. But it is unnecessary to discuss it; it cannot, be entertained for a moment.

The judgment is right, and must be affirmed.

Present — MulliN, P. J., Smith and Talcott, JJ.

Judgment affirmed.


author: Mullin, P. J.:

text:
    PETER WALSH, Appellant, v. THE HARTFORD FIRE INSURANCE COMPANY, Respondent.

      Policy of insurance — indorsement of consent to violation of condition — power of general agent to waive condition.

    A policy of insurance issued to tlie plaintiff provided that if the insured premises became and remained vacant for fifteen days, without the consent of the company indorsed upon the policy, it should become void, and it also provided that no officer or agent of the company should be held to have waived any of the terms or conditions thereof, unless such consent were indorsed upon the policy.
    After the issuing of the policy the plaintiff’s son notified the general agent of the defendant that the house had become vacant, and, upon his consenting that it might remain so, asked if it were necessary that it should be indorsed upon the policy, to which the agent replied that it was not; that he had entered it upon the books of the company, which was all that was necessary. In an action upon the policy to recover for a loss occurring while the house was unoccupied, held, that the general agent of the company had power to, and that he did by his act waive the condition of the policy requiring his consent to be indorsed upon the policy, and that the plaintiff was entitled to recover.

      A general agent of an insurance company is one who is authorized to accept risks, to agree upon and settle terms of insurance, and to carry them into effect hy issuing and renewing policies.
    Appeal from a judgment in favor of the defendant, entered upon an order made at the Circuit, nonsuiting the plaintiff.

      D. O’Brien, for the appellant.

      F. W. Hubbard, for the respondent.
   Mullin, P. J.:

The defendant insured the plaintiff’s dwelling-house at Carthage, in Jefferson county, for the term of three years, from the 27th of November, 1871, for the sum of $1,500 ; the policy was renewed on the 27th of November, 1874, for three years longer.

The policy contained the following condition amongst others, viz.: “ If the premises hereby insured shall become vacated by the removal of the owner or occupant, and so remain for a period of more than fifteen days without notice to the company and consent indorsed hereon, then the policy to be void. It is further expressly covenanted by the parties hereto that no officer, agent or representative of this company shall be held to have waived any of the terms or conditions of this policy, unless such waiver shall be indorsed hereon in writing.” There is in the policy this clause also : “This policy is made and accepted upon the above express condition.”

The house was occupied by one Neafy ; he moved out of it on the 3d of June, 1875. The defendant’s agent at Carthage was informed by plaintiff’s son, by direction of his father, that the house was vacant, and he requested the agent to consent that it might remain vacant, and he said he would. He was asked if it was necessary to get the policy,' so as to have the consent indorsed upon it; the agent replied that it was not, that he had entered it on the book furnished him by the company, and it was all right, and he might go about his business; the consent was entered on the book so kept by the agent.

Carpenter was the general agent of the defendant at Carthage, to whom blank policies were sent; he countersigned and delivered them, collected premiums, and consented to transfers and assignments of policies.

Tbe building was burned on tbe 23d of July, 1875. A recovery on tbe policy was resisted on tbe ground that tbe building having been vacated and remained vacant for more tban fifteen days, without tbe consent of tbe company that it might remain vacant being indorsed on tbe policy, tbe policy was void. A non-suit was moved for on this ground, and it was granted, and from that judgment tbe plaintiff appeals.

A general agent of an insurance company may waive tbe performance by the insured of conditions in the policy, and.bind tbe company by such waiver. (May on Insurance, 126; Wood v. Poughkeepsie Ins. Co., 32 N. Y., 619; Carroll v. Charter Oak Ins. Co., 38 Barb., 402; Bodine v. Exchange Fire Ins. Co., 51 N. Y., 117; Parker v. Austin Fire Ins. Co., 1 N. Y. S. C. [T. & C.] 397; S. C., 59 N. Y., 1.)

A general agent of an insurance company is one who is authorized to accept risks, to agree upon and settle terms' of insurance, and to carry them into effect by issuing and renewing policies. (May on Insurance, 126, 145-155; Post v. Ætna Ins. Co., 43 Barb., 351.)

Tbe complaint alleges and tbe answer admits that Carpenter was a general agent at Carthage, and as such, empowered to solicit risks, issue, countersign policies and collect premiums, but tbe answer denies that as such agent be was authorized to waive or to consent to a waiver of any condition or stipulation contained in a policy.

This denial is of no avail; by admitting Carpenter to be a general agent, and as such authorized to perform tbe acts specified in tbe complaint, he was authorized to waive • conditions in policies. His verbal consent that tbe premises might remain vacant was a waiver of tbe conditions that the consent should be in writing, indorsed on tbe policy. Such seems to be tbe result of several decisions; whether it is right, it is not for this court to inquire. (Newton v. Allemania Fire Ins. Co., N. Y. Weekly Dig., No. 25, July 31, 1876, p. 600; Thayer v. Agricultural Ins. Co., 5 Hun, 566; Askell v. Commercial Ins. Co., 7 Hun, 455; Hotchkiss v. Germania Ins. Co., 5 Hun, 90-100.)

Tbe defendant’s agent having been applied to for bis consent that tbe bouse might remain vacant, and that be would indorse such consent on tbe policy, and tbe agent saying that bis consent written in bis book would answer just as well, was a waiver of the condition that the consent should be indorsed on the policy, if entering the consent in his book should not be held to be equivalent to an indorsement on the policy.

The judgment must be reversed and a new trial granted, costs to abide event.

Present — Mullin, P. J., Smith andTAiooxT, JJ.

Judgment reversed and new trial granted, costs to abide event.