text:
    Eliza A. Martin, App’lt, v. The Manufacturers’ Accident Indemnity Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Insurance (accident)—Evidence of burbendeb of policy.
    On April 8,1889, a person holding an accident insurance policy received a slight injury to his thumb. On April 18th he agreed to accept twenty-five dollars “in full settlement and final satisfaction of any and all claims I now have or may have against said company, for loss resulting from injuries received on April 8, 1889, under my policy No. 12,157, which is hereby surrendered.” And he thereupon executed a receipt for the twenty-five dollars. The policy he retained in his possession. On April 27, 1889, he received another injury, and died from its effects on May 10th. On May 2d he notified the company of the second accident, and on May 9th he received an official notice of the maturity of premiums due. Evidence was given that defendant’s agent had said at the time of settlement for the first accident, “that it was for the weekly indemnity,” and that nothing was then said about canceling the policy. Eeld, that the evidence warranted the inference that the twenty-five dollars was paid exclusively in satisfaction of the loss sustained by the injuries of April 8th, and that there was no intent to surrender or cancel the policy.
    2. Same—Consideration for surrender.
    The words " hereby surrendered,” in the printed receipts, signed by insured, were inserted without any consideration being paid therefor, and, as an agreement, were inoperative and void.
    3. Same—Beneficiary—Rights of.
    The policy was made payable, in the event of loss, to the plaintiff, wife of the insured, and she had a beneficial interest in the premiums which had been paid, and in the defendant’s covenant to pay the policy out of its fund, which it was, under its by-iaws, to collect and accumulate and hold in use for the mutual benefit and protection of its members, or their beneficiaries, and which interest could not he affected by the surrender or cancellation of the policy by the insured.
    Appeal from a judgment entered in Broome county upon a nonsuit granted at the circuit and from an order denying a new trial on the minutes. Complaint upon a certificate or policy of insurance issued by the defendant on the 9th day of November, 1888, “ by which they undertook and agreed, among other things, to pay to the plaintiff the sum realized upon an assessment made in accordance with the provisions of its by-laws, not exceeding $5,000, within ninety days after the filing with said defendant due proof that said William A. Martin has sustained bodily injuries effected through external, violent or accidental means, which injuries alone occasioned his death within ninety days from the happening thereof.” The answer admitted the issuing “of the certificate of membership or policy of insurance;” also admitted that William A. Martin died upon the 10th day of May, 1889, and that an assessment would “exceed $5,000” and that no part of the alleged sum of $5,000 has been paid. The answer further alleges that on the 8th day of April, 1889, the assured received injuries upon the thumb of his left hand from a hammer, and also alleges “that claim was made by said assured for weekly indemnity under the provisions of said policy, on or about the 9th day of April, 1889, and that thereafter and on or about the 13th day of April, 1889, and while said assured was not disabled within said , policy so as to be entitled to any weekly indemnity, this defendant duly agreed to and with the said assured for a good and valuable consideration, viz.: $25 then and there paid to Said assured, that said sum would be and it was received in full satisfaction and final settlement of any and all claims said assured had or might have against this defendant for loss resulting from injuries received by said assured on said 8th day of April, 1889, for and in consideration of said sum of $25 said assured then and there agreed to, and did surrender, satisfy and cancel said policy of insurance set out in the complaint, by reason of which said policy was surrendered, cancelled and satisfied, and ceased to be an oh-ligation or policy against this defendant, all of which is set up as a defense herein.” The nonsuit seems to have been put upon the ground “that the undisputed evidence shows the cancellation of this policy and the company was not liable.”
    Plaintiff requested to go to the jury upon the question as to whether “ it was the intent of the parties upon giving this receipt, of April 13th, to surrender the policy, and whether in fact the policy was surrendered; whether in fact it was at the time of Mr. Martin’s death a valid and subsisting contract of insurance, between the beneficiary and the company.” An exception was taken to the holding of the court. In the application made by the deceased on the 8th of November, 1888, and in the 9th subdivision thereof, were inserted these words: “Write certificate payable in case of death by accident under provisions of this certificate to Eliza A. Martin, whose relationship to me is that of my wife.” The agent of the defendant on the 8th of November executed a receipt to the deceased for five dollars “ being payment in advance of the membership fee upon the certificate so applied for.”.
    The secretary of the defendant executed a receipt on December 12, 1888, for two dollars “ in payment of premium due December 9, 1888.” February 9, 1889, the secretary executed a receipt for two dollars “ in payment of premium due February 9, 1889 ; ” and the secretary executed a receipt April 9, 1889, for two dollars “in payment of premium due April 9, 1889.” An “ official notice ” from the officers of the Manufacturers Accident Indemnity Company, bearing date May 9, 1889, signed by the secretary, was issued and sent to the assured which contained the following words, viz.: “Your insurance stands on our books as paid to June 9, 1889; your next bi-monthly premium of two dollars is now due; time of payment expires June 9, 1889.” The “official notice,” with other papers accompanying it from the defendant, were addressed to the assured and sent through the mail and received at his residence on the day of his death. On the 27th day of April, 1889, the deceased injured the second finger of the right hand between the first and second joint by taking out a small piece of flesh about the size of a pea; inflammation set ■ in and blood poisoning ensued resulting in his death on May 10, 1889; and it is claimed in behalf of the plaintiff that death resulted from the injuries received on the 27th of April, and that by reason thereof the defendant became liable to pay the plaintiff the sum of $5,000 upon the policy. On the 2d of May, 1889, the deceased requested his daughter to write for and in his behalf, a notice of the injury that he had received on the 27th of April, and send the same to the defendant, which was done, and the defendant received the same in due course of mail and retained it without objection or inquiry communicated to the deceased. On the 14th of May the plaintiff caused notice of the death to be sent to the defendant, with a request for usual blanks to make up proofs of loss, which notice was received by the defendant, but no blanks were furnished, and the plaintiff, on the 29th of May, made up and delivered to the defendant proofs of loss, which were “ returned to plaintiff by defendant next day after receipt, on the ground stated, that the policy in question had been canceled and was not in force.”

      Carver, Deyo & Jenkins, for app’lt; A. & A. W. Gumming, for resp’t
   Hardin, P. J.

Plaintiff is entitled to have the most favorable inferences deducible from the evidence and conflicts in the evidence resolved in her favor while reviewing the motion for a non-suit. Weil v. D. D., E. B. & B. R. R. Co., 119 N. Y., 153; 28 N. Y. State Rep., 944. Whether the death ensued from injuries covered by the provisions of the policy, upon the evidence produced, was a question for the jury to determine.

(2) Apparently the critical and important question in the case arises upon the effect to be given to the paper signed by the deceased on the 13th day of April, 1889, which was in the following words:

“ Received from the Manufacturers’ Accident Indemnity Go., of Geneva, N. Y., the sum of twenty-five dollars ($25), being in full satisfaction and final settlement of any and all claims I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D., 1889, under my policy No. 12,157, which is hereby surrendered.

“Dated at Binghamton, in the State of New York, this 13th day of April, A. D., 1889.

“ W. A. Martin, Claimant.

No. 28 Lewis St., Binghamton, N. Y, Residence.

“ G. L. King, witness.”

When the paper was executed, it was a printed blank, except the words and figures underscored.

King, the general agent of the defendant, who witnesses the paper, was called as a witness in behalf of the defendant, and against the objection and exception of the plaintiff he was permitted to give a conversation held with the deceased on the 13th of April, when the paper was executed. It appears by that conversation that the deceased and the witness held a discussion as to the extent of the injuries to the thumb of the deceased and as to what sum would be a suitable compensation therefor, and after an intimation on the part of the witness that he would give ten or fifteen dollars, deceased declared he would not take it, and the witness King finally testifies as follows:

“ I says to him finally, in substance, Mr. Martin, what will you take ana settle this matter, tell me ? I am here with authority to settle with you. He says, I will take one week, that is twenty-five dollars. I says, yes, I says, to end all this discussion I will pay you, and drew out this application, this receipt. ” The witness testifies further that he gave his check for twenty-five dollars and that the deceased signed the paper, and the witness adds, the deceased “looked at it and says, what does that mean by surrendering my policy ? I says it is the usual course when we settle with a man before he recovers from an injury and your reinstatement depends on the secretary;' that is nothing I have anything to do with. He signed the receipt and I gave him my check and I left the office; the whole talk I can’t give; I was there perhaps an hour and a half.” The witness further testified that in answer to some question put to him by the deceased, in regard to the surrender of the policy, that he replied, “ I says it is customary to send that to the company with the receipt; it is not here; I didn’t consider it important and did not send for it, and did not •get it; * * * the policy wasn’t there; I says, this surrender is sufficient, and without going after the policy or getting it”

The defendant called one Demeree as a witness, who was present at a portion of the interview which was had between King and the deceased, and he testifies: “Mr. King didn’t say that he would pay ten or fifteen dollars, nor make any offer while I was there. Mr. Martin didn’t say that he would call it one week while I was there. Neither Mr. Martin nor Mr. King made any offer while I was there. I saw no check given nor receipt signed. * * * When I left the office I left Mr. Martin and Mr. King negotiating and talking about the matter.”

The plaintiff called Daniel K Comstock, who testified to a conversation he had held with King, as to which conversation the witness says: “ Mr. King says, I heard Mr. Martin received an accident and I came right around and have settled for a weekly indemnity and have paid him a check for $25 and he requested Mr. Martin to show me the check, which he did. I think it was Mr. King’s individual check for that amount, and the settlement seemed very satisfactory, and there was nothing said about the cancellation of the policy.” We think the evidence warranted an inference that the twenty-five dollars was paid in satisfaction of the loss sustained by the injuries of April 8th, and that the evidence warrants an inference or finding that the payment was made exclusively for such purpose, and that no part of the sum of twenty-five dollars was paid to reimburse the deceased for the premium paid theretofore to the defendant, or for the purpose of obtaining a surrender of the policy; indeed the language of the receipt is that the twenty-five dollars is in satisfaction of “any and all claim I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D., 1889.” Ramsden v. Hylton, 2 Vesey, Sr., 310.

In Van Nest v. Talmage, 17 Abb. Pr., 99, it was held that “ a receipt or release may be avoided by proof that it was obtained without consideration or by misrepresentation, or that it has been rescinded by agreement”

If the receipt is construed in the light of the evidence now mentioned, and the facts and circumstances surrounding the parties at the time of the execution thereof, the conclusion is reasonable that the money paid by the defendant was for the purpose of satisfying the claim or liability which arose by reason of the injuries of the 8th of April We think the words “hereby surrendered ” were inserted without any consideration being paid therefor. Brick v. Campbell, 122 N. Y, 337; 33 N. Y. State Rep., 520. There was no physical surrender of the policy, the same having been retained by the assured or the beneficiary named therein, and held by them or one of them at the time of the death.

This case is distinguishable from Train v. Holland Purchase Ins. Co., 62 N. Y., 602, as in that case there was an actual delivery of the policy; a physical surrender of it by the party solely interested therein to the agent, “ and the accéptanee of it by him as agent of the Andes Company, with the intention on the part of both that it should no longer be a contract between the plaintiff and the company,” and that by a party solely interested in the ownership of the policy. We also think this case is distinguishable from Crown Point Iron Co. v. Ætna Ins. Co., 53 Hun, 227; 25 N. Y. State Rep., 728, as in that case the plaintiff had actually surrendered the policies, and by its decisive act “ put the policies intentionally out of the plaintiff’s possession,” and no question was made in that case but what the plaintiff was the sole owner of the policy and the sole party interested therein.

Again, by the application that was made to the defendant, it was expressly requested to make the certificate or policy payable in case of death by accident, under the provisions of the certificate, to Eliza A. Martin. By the terms of the policy it was provided that if death should be :t effected through external, violent and accidental means, * * * this company does covenant, promise and agree to pay to Eliza A. Martin, wife, if surviving, if not, to the legal representative of the member, the sum of $5,000 from the benefit fund of the company at the time of said death.” On the 13th of April the policy was in life, and the premium thereon had been paid sufficient to keep it alive until another payment or premium should become due and payable on June 9th. The beneficiary, therefore, had an interest in the covenant of the company which had been paid for. Lockwood v. Bishop, 51 How., 224. It is not claimed that she ever assented to a surrender of the same, or that she in any manner cancelled her interest in the policy in question; nor does the evidence show any act on her part which can be construed to operate as a surrender of her interest in the policy; besides, on the 9th of May, the defendant, when it issued its “ official notice,” treated the policy as valid and binding. Matter of Booth, 11 Abb. N. C., 145; Cooke on Life Ins., p. 138, and cases cited.

Chase, the secretary of the company, and who by evidence is shown to be the principal manager of the company, it must be assumed had either signed, or caused to be signed, the “official notice" which was used, and it must be assumed that he was acting within the scope of his authority when he sent, or caused to be sent, the “ official notice ” to the assured. According to the testimony of King, the secretary had the power to cause a reinstatement of a member even after a valid surrender of a policy. In article 2 of the by-laws, it is provided that if a member shall fail to remit the amount of the assessment within the time specified in the notification, he “ may be reinstated by the secretary under such conditions as he may impose.” It seems „that the object of this company is to “ collect and accumulate a fund to be held in use for the mutual benefit and protection of its members, or their beneficiariessuch is the declared object in article 1 of the by-laws. It would seem that the defendant not only covenanted to pay such sum of money as the assessment would yield up to the extent of $5,000, but it undertook to act as trustee, not only for the members but for the beneficiaries mentioned in its policies. This circumstance is not to be overlooked in considering the interest which the plaintiff had in the policy on the 13th of April. Plaintiff has placed her right to recovery by reason of the injury of April 27th, and not by reason of the injury of April 8th. Whether the death resulted from the injury of April 8th, or whether that contributed to the death, were questions which were not determined by the learned judge at the circuit and are not directly brought in review, and probably when this case shall be tried again questions in that regard will be for the jury to determine. Peck v. Equitable Accident Association, 52 Hun, 259; 23 N. Y. State Rep., 465, We think the plaintiff’s case is distinguishable from Bacon v. U. S. M. A. Association, 123 N. Y., 304; 33 N. Y. State Rep., 591, as in that case it appeared the death of the insured was caused by malignant pustule, and it was, therefore, held that the insured died from a disease within the meaning of the policy.

(3) Neither the notice of motion made upon the judge’s minutes, nor the order entered thereon, specify any grounds and according to the well settled practice of this court, the same cannot, therefore, be reviewed, and the appeal, therefore, must be dismissed. Hinman v. Stillwell, 34 Hun, 178.

Appeal from the order dismissed.

Judgment reversed and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Michael Kealey et al., Resp’ts, v. Dwight H. Murray. Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1 Mechanics’ lien—Notice op lien—Owner.
    A notice of lien stating that claimants have a claim against a contractor named, for specified work and materials rendered and furnished in erecting a cellar wall; that the contractor huilt the wall under an agreement with one 0., who is the possessor of the premises, and occupies under a contract of purchase made with one M., "who is the owner of the said building and appurtenances, and the lands and premises on which the same stands, subject to said contract,” is sufficient to charge the interest of M. as owner; the name of the owner is sufficiently stated, and an allegation of his consent is not required.
    2. Same—Verification.
    A verification of such a notice, to the effect that the statements therein contained are true to the affiant’s “ knowledge, information and belief," is sufficient.
    8. Same—Consent op owner.
    Where the owner of land, with knowledge that his vendee has entered into a building contract, allows the vendee to take possession under a contract of sale, by the terms of which it is to be void in case of non-perform-once of any of its conditions, and all payments and improvements are to be retained by the vendor in that event, a finding that he consented to such contract will not be disturbed.
    Appeal from a judgment of the Onondaga county court, entered February 13, 1891, upon the decision of the court after trial without a jury. The action is brought to foreclose a mechanic’s lien. The defendant Murray is the owner of the real estate and he alone defends. The judgment declared that the claim of plaintiffs to the extent of §100 and interest from January 20, 1880, was a lien on the interest of Murray.

      Bagg, Nottingham & Pierce, for app’lt; Gill & Stillwell, for resp’ts.
   Merwin, J.

On the 25th October, 1889, the defendant Murray was the owner in fee of the lot in question. At that date he, through his agent, received of the defendant Mary Cornelius the sum of five dollars as a payment on the purchase of the lot at the price of §300, with the understanding that, on the payment by her of another payment of five dollars, she should have a contract. On the 7th November, 1889, she made another payment of five dollars and a contract was executed, bearing date November 7, 1889, by which Murray agreed to sell, and Cornelius agreed to buy, the lot at the price of $300, payable five dollars or more on the first day of each month until the whole was paid, with interest. The deed was to be given upon full payment. It was mutually agreed that Cornelius should have possession at the date of the contract, and should keep the premises in as good condition as then until the price was paid, and that, if she failed to perform the contract or any part thereof, Murray should immediately after such failure have the right to declare the same void without notice and retain whatever may have been paid on the contract and all improvements that may have been made on the premises and might take immediate possession.

Mrs. Cornelius went into possession, made a further payment of five dollars on December 7,1889, five dollars on January 15, 1890, and five dollars on February 12, 1890, but no further payments. On the 31st October, 1889, Mrs. Cornelius entered into a written contract with the defendant Quackenbush for the erection of a house on the lot, according to certain plans and specifications, for the price of $1,245, payable $100 on the delivery of the contract, and the balance of one-half when the building was enclosed and the other half when the building was completed. The $100 was not then paid, Quackenbush at the time informing Mrs. Cornelius that that would not be necessary, but that it could be paid at any time.

In December, 1889, the plaintiffs, under a verbal contract with Quackenbush, built a cellar wall on said premises, according to the provisions of the contract between Quackenbush and Cornelius, the labor and materials furnished by plaintiffs amounting to $102, none of which has been paid. The plaintiffs were to be paid such sums from time to time as they might need as the work progressed and the balance when the. frame of the building required under the contract of Cornelius and Quackenbush was up. All the work that has been done under the contract between Cornelius and Quackenbush is the completion of the cellar and both parties have abandoned the contract.

On the 20th January, 1890, the plaintiffs filed their notice of lien, and on the 18th April, 1890, commenced this action.

It is claimed by Murray that the notice of lien did not contain the statements requisite to charge his interest, in that it did not make any claim against him and did not state that labor and materials were provided at his request, by his consent or with his knowledge. The notice states that the claimants have a claim against William Quackenbush, contractor, to the amount of $102, for certain specified work and materials rendered and furnished in erecting a cellar wall, by virtue of-an agreement with Quackenbush, who built the cellar under an agreement with Mary Cornelius ; that Cornelius is the possessor of the premises and occupies under a contract of purchase made with Murray, “ who is the owner of the said building and appurtenances and the lands and premises on which the same stands, subject to said contract; ” and they, the claimants, “ have and claim a lien upon said building and appurtenances and the said lands and real estate whereon the same stands,” to the amount named. The premises are described.

The statute, § 4 of chap. 842 of 1885, provides that the notice shall, among other things, contain “ the names and residences of the claimants, the nature and amount of the labor and services performed, or the materials furnished or to be furnished, with the name of the owner, lessee, general assignee or person in possession of the premises against whose interest a lien is claimed.” In the notice in question Murray is stated to be the owner, his interest is described and it is quite apparent that the claim of lien was designed to reach his interest. In this respect this case differs from the case of Jones v. Manning, 25 N. Y. State Rep., 771-6, cited by the counsel It is true the notice did not allege the consent of the owner. The statute, however, does not require it Burkitt v. Harper, 79 N. Y., 273-278.

By § 25 of the act it is provided that it is to be construed liberally to secure the beneficial intents and purposes thereof and that a substantial compliance shall be sufficient for the validity of the lien. In this view we think that the notice was sufficient in the respects complained of.

It is further said that the verification is defective. The requirement (§ 4) is that the verification shall be “ to the effect that the statements therein contained are true to the knowledge or information and belief of the person making the same.” The verification is, “ that the statements in the foregoing notice contained are true to his knowledge, information and belief.” This at least amounted to a verification upon information and belief, and that satisfied the statute.

It is further claimed by the appellant that no such consent on the part of Murray was shown as the statute contemplates in ■order to charge his interest. Such consent was found by the court below and the question is, whether the finding is sustained by the evidence

The present statute expressly provides that an owner who has made an agreement to sell and convey is still an owner within the meaning of the act. It is not necessary for the claimant to show that such owner himself made a contract for the labor or materials for which a lien is claimed. That, in substance, was held in Burkitt v. Harper, 79 N. Y., 273, and Otis v. Dodd, 90 id., 336. The case of Jones v. Manning, supra, is cited by the counsel for appellant to support a contrary view. That case is based on Knapp v. Brown, 45 N. Y., 207, which is referred to in the Burkitt case and distinguished.

It has been held that the consent required by the statute may be implied from knowledge and the absence of objection. Husted v. Mathes, 77 N. Y., 388; Nellis v. Bellinger, 6 Hun, 560.

In the present case, the appellant knew of the contract for the building the house at or about its date and made no objection. This was before he gave his written contract of sale. He knew that the improvement was going on; he provided in his contract that in case of failure of his vendee to perform the improvements should belong to him, the vendor. Yery clearly it was his expectation and desire when he made his contract and in the contemplation of both parties that a house would be built. It improved his security and might enure to his benefit. This he was willing to receive. The finding of consent should not be disturbed.

Upon the trial evidence was received by the court of declarations of the agent of Murray upon the sale. This was received subject to proof being made of the authority of the agent to bind his principal. There was some proof on this subject and no motion was made to strike out the declarations. There was abundant proof to sustain the finding of consent aside from declarations of the agent. We find no error on this subject sufficient to call for a reversal. No other question is presented.

Judgment affirmed, with costs.

Martin, J., concurs.


author: Merwin, J. Martin, J.

text:
    Ella Larow, Adm’rx, Resp’t, v. The New York, L. E. & W. R. R. Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Master and servant—Railroads—Rules for safety of employes.
    While decedent was coupling cars in making up a train in defendant’s yard; a switch engine pushed some cars down on the train being made up, causing it to move forward suddenly, killing him instantly. No signal of the approach of the switch engine was given. Held, that it was error for the court in its charge to leave it to the jury to determine whether it was reasonable “ to require the railroad company to promulgate a rule forbidding entrance on a switch when another engine and train are upon it, unless a signal is given, or notice sent to the employes of that train,” and if they found such a rule to be reasonable, they might find the company negligent, it not being shown that any other company had adopted such a rule or what its practical workings would be if adopted.

      Appeal from a judgment entered in Chemung county on 23d January, 1888, upon the verdict of a jury at Chemung circuit January, 1888, in favor of plaintiff for $5,000; also appeal from an order denying a motion on the minutes for a new trial.

      E. F. Babcoch, for app’lt; Jacob Schwartz, for resp’t.
   Merwin, J.

In this action it is claimed by the plaintiff that on the 16th March, 1887, her husband, George W. Larow, was killed by reason of the negligence of defendant, at its freight yard at Hornellsville, without any negligence on his part contributing to the result. Larow was a brakeman in the employ of defendant and had been since Hovember 9, 1886. Upon the afternoon of the day in question Larow was one of the .crew of a freight train that was being made up in the yard. Eor the purpose of taking out freight cars for the train, the engine had entered upon switch track Ho. 5 and coupled onto twelve cars, and was going in for five more that were standing on that track. Larow was a middle man and in the course of his duty was sent to do the coupling of the five cars. Eor this purpose the engine backed up the cars already coupled toward the five cars, Larow running alongside on foot. He gave a signal to stop, but the moving cars struck the stationary ones, Larow being on the outside, and the coupling was not made. Larow signalled the engineer to go ahead, which he did, leaving a space of about thirty feet between the end of the twelve cars and the five. Into this space Larow was seen to go and was not again seen alive. After about three minutes, as one of plaintiff’s witnesses testifies, or about four minutes, as another of plaintiff’s witnesses testifies, the switch engine from the other end of the yard pushed down some cars, striking the five above referred to and pushed them on to the twelve, and then pushed the whole train ahead twelve or fifteen car lengths. Ho signal was given of the approach of the switch engine. Shortly after this, another brakeman of the train being made up discovered that the twelve and the five were not coupled together, and upon examination discovered that the coupling link at the end of the last of the twelve cars was driven in tight into the drawhead. A temporary coupling was made and the five cars drawn out Larow was then discovered on the track dead. Apparently he had been hit between the cars, as the five upon being pushed •down by the switch engine collided with the twelve.

Upon the trial, the only ground of negligence claimed by plaintiff was that the defendant had failed to make and promulgate rules for the reasonable protection of its employes in the Hornellsville yards. The court in its charge, among other things, left it to the jury to determine whether it was reasonable “to require the railroad company to promulgate a rule forbidding -entrance on a switch when another engine and train is upon it, or another engine and cars are upon it, unless a signal is given, or notice sent to the employes of that train,” and if they found such a rule to be reasonable, they might find the company negligent This is claimed to be error. Exception was properly taken.

There are cases that hold it error to submit to a jury the question whether a railroad company ought to have left a flagman at a particular point. Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y., 220; McGrath v. N. Y. C. & H. R. R. R. Co., 63 id., 528; Grippen v. N. Y. Central R. R. Co., 40 id., 41. The query is whether this principle does not apply to the present question.

The defendant had adopted certain rules as to the management of its freight yard, but had adopted none covering the specific subject or condition that existed here. It was not shown that any other company had adopted such a rule, and what its practical working might be was a matter of speculation. There was no evidence to instruct the jury on that question.

In Abel v. President, etc., D. & H. C. Co., 103 N. Y., 581; 4 N. Y. State Rep., 269, the plaintiff’s testator, a car repairer in the employ of defendant, was under one of its cars standing on a side track engaged in making repairs. Another car was carelessly backed against it by other employes, causing his death. It appeared that other railroad companies had adopted a rule efficient for protection to a car repairer in such a case, and that no similar rule applicable to such a case had been adopted by defendant. A nonsuit was granted. This was held to be error, the court saying that the facts should have been submitted to the jury; that it could not be said as matter of law that the rules of defendant were proper and sufficient for the protection of its repairmen and that it should not have taken greater precautions by rules or otherwise for their safety.

In Ford v. The Lake Shore & M. S. R. R. Co., 36 N. Y. State Rep., 494, the husband of the plaintiff was a switchman in defendant’s employ and was injured by timbers falling from a passing car. Defendant’s only rule as to the loading of lumber required its employes “ to attend to the loading of freight, whether loaded by station men or by shippers, to see that it is safely stored and so that it cannot fall off the cars.” It was shown that on other roads a verbal rule existed specifically for the security of lumber loaded on cars. The jury by special finding found that the defendant did not provide a proper and sufficient rule with respect to the loading of lumber. There was no other ground for negligence against the defendant. A judgment for plaintiff was sustained.

It may be that the principle of the Abel and Ford cases would call for the submission to the jury of the question whether the defendant, in the making and promulgation of rules for the management of cars in its yard, exercised reasonable care. This, however, would not authorize the submission of the question whether some specific rule should have been adopted. The same objection would apply as in the flagman cases above referred to. In the Houghkirk case it is said: “ The question never is whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in view of his presence or absence, the train was moved with prudence or negligence.” In view of the rule in those cases, the charge here was erroneous. Upon this ground there must be a reversal. '

Judgment and order reversed upon the exceptions and new trial granted, costs to abide the event

Hardin, P. J., concurs.

Martin, J.

While the doctrine of the case of Berrigan v. N. Y., L. E & W. R. R. Co., 37 N. Y. State Rep., 414, seems to be somewhat adverse to the conclusion reached by us in this case, still I think our conclusion correct

The only negligence claimed was that the defendant omitted to make and promulgate a rule to the effect that an engine should not enter upon a siding upon which there was another engine and cars, without giving a signal or sending notice to the employes of that train. The court submitted to the jury the question whether such a rule was reasonable, and instructed it that if it found that it was reasonable, fair and just, it might find that the defendant had omitted a reasonable rule, and was therefore negligent, unless the rules already established by the defendant substantially provided for such a case. The court well remarked that there was no evidence in the case that any other company had promulgated any such rule, and none to show whether such a rule could be practically followed in doing the work to be performed in the defendant’s yard where the accident occurred. The court then added: “You must use your best judgment, and we assume it is better than mine, hence I have left it to you as a question of fact.”

The effect of this instiuction was to submit to the jury the question whether a certain rule should have been made and promulgated by the defendant without any proof whatever as to its practicability, or that any similar rule had ever been adopted or • followed by any other railroad company in the management of the engines and cars in its yards. In other words, the plaintiff was permitted to suggest a rule for the management of the business of railroads, which, so far as appears from the evidence, was not shown to be either in use or practicable, and the court then submitted the question of its propriety to the jury, that it might by guess or speculation determine whether such a rule was proper, and, if so, might find that the defendant was negligent in not having adopted and promulgated it

It has been held that it is the duty of a railroad company to make and promulgate rules which, if faithfully observed, will give reasonable protection to its employes. Abel v. President, etc., D. & H. C. Co., 103 N. Y., 581; 4 N. Y. State Rep., 269. This rule should not, I think, be extended so as to enable a jury to say what rules should be adopted and promulgated by a railroad company for the protection of its employes, without any evidence as to their propriety or practicability.

If the principle involved in this case is to be upheld, it would seem to follow that in every case of any injury to an employe, ingenious counsel would be able to invent some rule and claim that it should have been adopted and promulgated by the company, and thus present a question as to the defendant’s negligence. The effect of such a rule, when taken in connection with the uniform tendency of juries to find against railroad companies, would be practically to make such companies insurers of their employes. I am of the opinion that before a railroad company can be found guilty of negligence, in not making and promulgating any certain rule, it must at least be shown that the rule is practicable, proper, and, if observed, would give reasonable protection to its employes.

I think the court erred in denying the defendant's motion for a nonsuit, and in submitting the question of negligence to the jury, and that for such error, the judgment and order should he reversed. Hence, I concur in the result reached by Merwin, J., in his opinion in this case. ■


author: Hardin, P. J.

text:
    Adam H. Eysaman, as Guardian, App’lt, v. Mary Small, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)
    1. Waste—Question op pact.-
    The question as to whether a life tenant has been guilty of waste is one of fact, and a finding thereon by the trial judge who saw and heard the witnesses will not be disturbed, where the evidence was conflicting
    2. Appeal—Evidence.
    Where it is not apparent that the questions ruled out by the court would if answered have influenced the result, and the substance of the matter inquired into appears in the appeal book, the judgment will not be reversed on the ground of such rulings alone.
    3. Waste—Tbial by jury—Waives.
    Where a jury was impanneled in an action for waste, and the plaintiff did not object to its subsequent discharge by the court, it will be assumed that such acquiescence was equivalent to a waiver by the plaintiff of his right to trial by jury.
    Appeal from a judgment entered in Herkimer county on the 31st day of May, 1890, in favor of the defendant, dismissing the plaintiff’s complaint upon the merits, upon a decision made by the circuit court finding, as a matter of law, that the plaintiff has failed by her evidence to establish any cause of action against the defendant, and ordering the complaint dismissed on the merits. On the 25th day of June, 1887, John Small died at his residence in German Elatts seized in fee of the premises described in the complaint, leaving the defendant, his widow, him surviving, and an adopted daughter, the wife of Adam H. Eysaman, the said Adam and the said wife being the parents of the said Lulu Eysaman. The will of John Small was admitted to probate on the 27th of September, 1887, in Herkimer county, and in the will the premises were devised to the defendant for life, with a remainder in fee to Lulu Eysaman. The premises consist of about three acres of land, dwelling-house, smoke house and carriage house thereon, which were occupied by the deceased as his residence and for many years before his death, and his wife, the defendant, and his adopted daughter. The defendant remained in possession of the premises under her husband's will, and has occupied them since his death. Lulu and her parents occupied the same premises with the defendant r om the time of the death down to the 4th of June, 1889 The deceased was about eighty-four years of age at the time of his death, and the defendant about seventy, and Lulu about four years old, and her father was appointed her guardian on the 7th of October, 1889. No income has been received by the defendant from the property, and the only advantage she has derived therefrom has been the occupation of the same for a residence and the use of the land for grass and hay and vegetables for her own use. At the time of the decease of her husband the premises were old and in some respects out of repair; there were some slate on the roof broken and some gone; some shingles gone; the sills of the veranda somewhat decayed and other sills more or less rotten, “ but their condition was not such as to interfere with the comfortable use of the same for the purposes for which they were used by the deceased or to require immediate repair to preserve the buildings.”
    The court found: “ The condition of the buildings in the respects referred to in the last finding continued from the death of John Small to the time of the commencement of this action in November, 1889, and thence to the present time, and the buildings are now in a state of repair and condition for u§e and preservation substantially the same as they were when Small died and when the estate of the defendant and of Lulu Eysaman, the ward of the plaintiff, vested and took effect under the will. Before the commencement of this action, and after his appointment as guardian as aforesaid, the plaintiff demanded of the defendant that she repair the buildings on the premises above referred to. No such repairs were made or commenced before the commencement of this action nor have since been begun or made.” The plaintiff requested the court to find, viz.: “ Since the said defendant has had the occupation, use, benefit and control of said premises and buildings she has suffered the buildings on said premises to become or to remain ruinous, dilapidated and out of repair in the respects and to the extent charged in the complaint.” The court did not so find and the plaintiff took an exception thereto. The plaintiff also requested the court to find “ That said buildings in order to their proper and reasonable reparation and to prevent further and increasing decay and injury thereto require the expenditure of the sum of $192.” The request was not found and the plaintiff took an exception. The plaintiff also requested the court to find “ The proper and reasonable reparation of the dwelling house and of a stone building appurtenant thereto, used as an ash house, requires the expenditure of at least $42.50 or more, to put them in proper condition and to prevent and arrest further decay and injury to said buildings.” The court did not so find and the plaintiff took an exception. The court was also requested to find: “ The said defendant, before the commencement of this action, refused to make any repairs to said buildings or any of them.” The court did not so find and the plaintiff took an exception. The court found, as a matter of law, viz.: “The said defendant as life tenant of said premises is bound to make reasonable repairs to said buildings to prevent further waste thereof and injury thereto.” A request was made by the plaintiff, viz.: “ The plaintiff is entitled to judgment that defendant within a reasonable time make repairs to said buildings so as to put them in reasonable and proper condition to arrest injury and decay thereof,” which request was not found and the plaintiff took an exception thereto.

      George W. Smith, for app’lt; Devendorf & Smith, for resp’t.
   Hardin, P. J.

Appellant does not claim what is known in law as “voluntary waste,”but on the contrary does claim what is commonly denominated “permissive waste.” Mr. Washburn in his work on Real Estate, vol. 1, p. 126, says: “ To suffer it (house) to go to decay for want of necessary repair, is permissive;” and he adds: “But whatever the'act or omission is, in order to its constituting waste, it must either diminish the value of the estate, or increase the burdens upon it, or impair the evidence of title of him who has the inheritance.” Waste, in short, may be defined to be whatever does a lasting damage to the freehold or inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance; and he further adds: fl It often becomes a question for a jury to determine whether a certain act be or be not waste, without referring to a criterion drawn from any other country. The rule as to what constitutes waste is uniform. Its application depends upon the condition and usage's of the place where it is to be made.” And the same author at page 134, second edition, says: “Though a tenant is clearly liable if he permits a house or fences on the premises to go to decay, when by the exercise of reasonable diligence he might prevent it, it is not easy to lay down rules a priori to define when and how far a tenant shall act in all cases. Decay is often so gradual that it is difficult to determine when a tenant is bound to repair, or how far he shall go in making repairs in any given case.”

In Jackson v. Tibbits, 3 Wend., 341, Marcy, J., said: “The very term waste implies the idea of detriment to the landlord or reversioner, * * * without damage it would seem there could be no waste; indeed, Blackstone defines waste to be whatever does a lasting damage to the freehold or inheritance. 2 Blackstone Com., 281.”

In Jackson v. Brownson, 7 John., 232, Van Ness, J., says: “ It is a general principle that the law considers everything to be waste which does a permanent injury to the inheritance; ” and in that case it was held that what acts would constitute waste is usually a question of fact fora jury to decide. In the appeal book before us we find a great conflict in the evidence upon the important questions of fact involved in the findings and refusals to find. In the points of the learned counsel for the appellant we find clear, caustic and resolute criticisms of the testimony given in behalf of the defendant, and clear and persuasive comments upon the testimony given in behalf of the plaintiff, and perhaps if the question was res nova we might reach the conclusion evolved and earnestly asserted by the learned counsel for the appellant

However, after a perusal of the evidence, and giving to the findings made by the trial judge such influence as we think they should receive from our hands, inasmuch as he saw and heard the witnesses and could thus well judge of the weight and credence to be given to the testimony,unusually conflicting, we are constrained to regard it as our duty to adopt the findings made by the trial judge upon the vital questions of fact; nor are we prepared to say that he improperly refused to find in pursuance to the requests made by the plaintiff. The requests thus refused embraced as matters of fact subjects upon which the testimony was conflicting.

(2.) We have looked at the rulings made upon the trial and we find no such error as we think calls for a reversal of the judgment. ' Plaintiff put a question to one of the witnesses calling for ■ the valuation of the dwelling house; thereafter the counsel for the plaintiff stated that the “idea of the testimony was to get the relative amount of repairs taken in connection with the entire value of the property; ” thereupon the court remarked: “ That has nothing to do with the question at all; ” thereupon an exception was taken, and subsequently the question was propounded to the witness, viz.: “ What, in your opinion, would that building be worth now, if it were put in proper repair ? ” This question was objected to as incompetent and not the proper measure of damages, and the objections were sustained and the plaintiff’s counsel took an exception. In considering these rulings it must be borne in mind that the case presents a very full and accurate description of the property; of its condition as found by several witnesses on the part of the plaintiff, as well as its condition as found by several witnesses on the part of the defendant, and photographs of the buildings were also produced in evidence; and it is not apparent that the questions which were ruled upon by the court would have, if answered, influenced the result. In substance, the evidence sought for appears in the appeal book. (See § 1003 of the Code of Civil Procedure.) Nor do we think that the circumstance that the witnesses were permitted to say that a barn was built on the farm ten or fifteen years before, was prejudicial to the plaintiff or influenced the findings made by the trial judge. Nor do we think it was error to receive evidence that the premises yielded no money income to the defendant and that the advantages which she derived from the occupation were such as ensued from the use of the house and receiving the produce of the land under the circumstances disclosed by the evidence. The vital question upon the whole evidence seems to have been whether the property was suffering lasting injury or permanent injury by the omission of the defendant to make expenditures thereon; upon'all the evidence the trial judge seems to have reached the conclusion that the case was not brought within the principles of 1 law to which we have already adverted.

(3.) It is suggested in behalf of the appellant that “ the trial judge misapprehended the scope of the complaint in holding that only equitable relief was sought. The court, after a jury was empanneled and the case was partly tried, discharged the jury.” At the commencement of the case and exceptions we find it stated', viz.: “Case opened to the jury in behalf of the plaintiff;” also, that '‘One of the jurors called upon the panel,” etc. At folio 800 it appears inferentially that the jury had been discharged. The defendants counsel seems to have, at that stage of the case, stated an objection and exception, and he further observed: “I would like to have it appear that it was duly objected to and a request made to go to the jury generally and an exception generally; ” and after some further remarks by the defendant’s counsel it appears the court observed: “ The case never should have been placed upon the jury calendar; ” and thereupon the defendant -took an exception, but as the defendant has not appealed, his exception is unavailing. We have looked in vain through the appeal book to find any exception taken by the plaintiff to the action of the court in discharging the jury and continuing the trial without a jury. We therefore are unable to discover any exception upon which the plaintiff can successfully allege error in the court in discharging the jury and continuing the trial without a jury under the supposition that the case was one in equity.

It is provided in § 1651 of the Code of Civil Procedure that “An action for waste lies against a tenant by the curtesy, in dower, for life, or for years, or the assignee of such, a tenant, who, during his estate or term, commits waste upon the real property held by him.” And in § 968 of the Code, it is provided that in an action for waste “ an issue of fact must be tried by a jury unless a jury trial is waived.” Kennagh v. McColgan, 25 N. Y. State Rep., 52. Apparently the plaintiff acquiesced in the action of the circuit in discharging the jury, and as we find no exception to the ruling in that respect we must assume that such acquiescence is equivalent to a waiver by the plaintiff of his right to have the issue of fact tried by a jury.

We think the decision of the circuit should stand.

Judgment affirmed, with costs.

Martin and Merwin. JJ., concur.


author: Hardin, P. J. Martin, J.

text:
    Miles Parker, Resp’t, v. Orville M. Knox, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Fraud—Principal and agent—Evidence—Principal presumed to be SOLVENT.
    Defendant falsely represented himself to be the agent of one Elkins in purchasing plaintiff’s hops in order to obtain them for speculative purposes. Upon the trial of an action to recover damages the judge refused to charge that plaintiff must show affirmatively that the alleged principal was solvent and responsible. Reid, no error.
    3. Same—Election oe remedies.
    The court declined to charge, on defendant’s request, that a verdict or judgment in this .case would not be a bar to an action by the plaintiff against the agent for a breach of contract to buy the hops on his own account, adding, that “ having selected this remedy and the method for enforcing it, that it is a selection which he must stand by.” Reid, error, as this was not a case where the doctrine of election applied. (Martin, J., dissenting.)
    Appeal from a judgment entered in Madison county upon a verdict taken at a circuit in that county for $1,700.74. Also an appeal from an order denying a motion for a new trial heard upon the case and exceptions at a special term. Plaintiff in his complaint alleges that on the 26 th day of June, 1889, he was the owner of a quantity of hops, and that the defendant “for the purpose of obtaining control of the same for speculative purposes, falsely and fraudulently represented and stated to the plaintiff that he, the defendant, was duly authorized by one George W. Elkins, who was well known to the plaintiff to be a reputable and solvent hop dealer, to buy the plaintiff’s hops, and offered the plaintiff for said hops as the alleged agent of said Elkins the sum of twenty-two cents per pound. * * * That the plaintiff, relying on the said representations of the defendant, that he was the agent of said Elkins and had the right to buy said hops for him, and believing that the sale was made to said Elkins as the principal of said defendant, sold his ninety-seven bales of hops, weighing 18,456 net, to the defendant as per his offer of twenty-two cents per pound. That the defendant paid the plaintiff on account of said sale twenty dollars, and agreed to weigh, inspect and pay for said hops at the plaintiff’s hop kiln in the town of Madison, county of Madison, where said hops then were, on the following Saturday or Tuesday. That the plaintiff, on both of said days, was prepared to deliver said hops, as aforesaid, but the defendant failed to put in an appearance and to take said hops. That the defendant promised from time to time to take said hops, alleging as an excuse that his principal, said Elkins, was away from his place of business among the brewers, or had no place for them just at the time, and would fix new dates, but always defaulted, and failed to take said hops and pay for the same the purchase price aforesaid. That thereafter and about the month of August, 1889, plaintiff learned that the defendant had no authority for said Elkins to buy said hops as aforesaid, and plaintiff alleges on information and belief that defendant had no authority to buy said hops for said Elkins, and was not his agent and had no authority to bind him on said purchase.” The plaintiff also alleges that on the 26th of June the hops were worth twenty-two cents in the market; “ that thereafter the market value of hops declined so that when plaintiff learned that said defendant was not the agent for said Elkins in making said purchase, and that said sale had not in fact been made to said Elkins and the defendant refused to take said hops and pay for the same, said hops were only worth in the market the sum of nine cents per pound, at which said sum the plaintiff sold said hops as soon as he reasonably could, on or about September 25, 1889, and said sale at nine cents per pound was the full value of said hops and all that the plaintiff could obtain for the same.”
    The answer of the defendant contained a denial of the allegations of the complaint.

      Jenkins & Devereux, for app’lt; Haskell & Coley, for resp’t.
   Hardin, P. J.

Upon an inspection of the evidence it is seen that the same is sufficient to sustain the verdict. The evidence sustains the allegations of fraud; we may not, therefore, interfere with the verdict as being against the weight of evidence. Upon the facts found by the verdict a cause of action is made out against the defendant. Brackett v. Griswold, 112 N. Y., 454; 21 N. Y. State Rep., 791.

(2.) In the course of the charge delivered by the learned trial judge to the jury he said: “If you say that the plaintiff is entitled to recover in this case the rule would be the actual loss which he has sustained by reason of this false and fraudulent representation, and, gentlemen, that would be the difference between the contract price of these hops at which they were sold and were to have been taken and the price which they were actually worth at the time they ought to have been delivered.”

At another point in the charge the court observed: “ If the plaintiff is entitled to recover in this action, he is entitled within the rules of law of this state to recover the actual damage which he has sustained, and the rule is not very much different, or very widely different, in actions sounding in tort under the facts in this case than upon a breach of contract, or if the action had been brought for a breach of contract in an action at law merely.” The defendant’s counsel took a general exception “ to that part of the charge in which the court states the rule of damages in this case,” and accompanying the exception was a request “ to say to the jury that the plaintiff must show affirmatively that Elkins was solvent and responsible.” In response to that request the court declined to charge the proposition. We think there was no error in declining to yield to the request; the presumption was that Elkins was “solvent and responsible,” and so far as the evidence bears upon that question it indicates that he was solvent and responsible.

(3) The defendant’s counsel asked the court “to charge directly that a verdict or judgment for the defendant in this case would not be a bar to an action by the plaintiff against Knox for a breach of contract to buy the hops upon his own account.” In response to that request the court observed: “ I decline to charge that. I think the rule is, having selected this remedy and the method of enforcing it, that it is a selection which he must stand by, and I decline to charge the proposition.” If the court had simply declined to yield to the request, we might say that the request was not upon a material issue in the case, but we must consider the further language used by. the court, to wit:' The rule is, having selected this remedy and the method of enforcing it, that it is a selection which he must stand by, and I decline to charge the proposition.” We think this is not a case where the doctrine of election applies. The plaintiff charges the defendant in his. complaint, and in the evidence produced, with having committed a fraud, and that he fraudulently represented that he was the agent for Elkins. It might well be that there was no fraud, and the jury might have been properly instructed that if they found there was no fraud, there could not be a recovery against the defendant in the form of action adopted here. We fail to see, however, that such failure would have prevented the plaintiff from recovering against the defendant upon the theory that he himself had become the purchaser of the hops and was liable as upon the contract made by the plaintiff. It is a familiar principle that when a party assumes to act as agent for another and induces a contract upon that assumption, and it turns out that there was no authority in fact to act for the supposed or alleged principal, the agent himself is liable upon the contract. We think it does not require the same evidence to support an action for alleging that defendant is liable upon the contract made as it does to support an action alleging that he fraudulently represented that he was authorized as agent for a party to act. As was said in Bowen v. Mandeville, 95 N. Y., 241, “ In the one case the recovery is based upon the express liability assumed by the party in his contract, and in the other upon the liability incurred for a violation of the duty- of honesty and fair dealing which the law enjoins upon one in his dealings with another.” We think for the error pointed out that there must be a new trial.

Judgment and order reversed and a new trial ordered, with costs to abide the event

Merwin, J., concurs.

Martin, J.

(dissenting) This action was to recover damages sustained by the plaintiff by reason of the fraud or deceit of the defendant The defendant’s alleged fraud consisted in falsely representing himself to be the agent of one Elkins in purchasing the plaintiff’s hops.

On the trial, the defendant asked the court: “ To charge directly that a verdict or judgment for the defendant in this case would not be a bar to an action by the plaintiff against Knox for the breach of contract to buy the hops upon his own account.” To which the court replied: “ I decline to charge that. I think the rule is, having selected this remedy and the method of enforcing it, that it is a selection which he must stand by, and I decline to charge the proposition.” The appellant contends that this was error.

If the defendant fraudulently represented that he was the agent of Elkins in purchasing the hops in question, the plaintiff had two remedies: 1. By an action for damages for the defendant’s fraud, and, 2. By an action upon an implied warranty that he was such agent. If these remedies were inconsistent, the plaintiff by bringing this action, with a knowledge of all the facts, must be deemed to have made his election of remedies, and he could not maintain an action upon such implied warranty. But if they were consistent and concurrent, then this action would not bar an action upon the defendant’s warranty, whether express or implied, as a party may prosecute as many remedies as he legally has, provided they are consistent and concurrent. Bowen v. Mandeville, 95 N. Y., 240, and cases cited.

In the case of Baltzen v. Nicolay, 53 N. Y., 467, 469, it was said: “ When an agent makes a contract beyond his authority by which the principal is not bound by reason of the fact that it was unauthorized, the agent is liable in damages to the person dealing with Mm upon the faith that he possessed the authority which he assumed. The ground and form of his liability in such a case has "been the subject of discussion, and there are conflicting decisions upon the point; but the later and better considered opmion seems to be that his liability, when the contract is made in the name of his principal, rests upon an implied warranty of his authority to make it, and the remedy is by an action for its breach.” Citing Collen v. Wright (8 E. & B., 647); White v. Madison (26 N. Y., 117); Dung v. Parker (52 id., 494). See, also, Simmons v. More (100 N. Y., 114), and cases cited in opinion.

The question presented is, whether the plaintiff’s remedy by an action against the defendant for his deceit in falsely and fraudulently representing that he was the agent of Elkins, and his remedy upon the implied warranty of his authority to act as such agent, were independent and inconsistent, or whether they were consistent and concurrent remedies. In White v. Madison (26 N. Y., 124), where this question was somewhat considered by the court of appeals, Selden, J., said: “ If the act of the agent were fraudulent, an action for the deceit would lie, but it would be a concurrent remedy with an action on the warranty, and so I apprehend must be the action on the contract itself, if the cases which sustain such action are to be regarded as correctly decided.” The doctrine of this case was followed in Dung v. Parker (52 N. Y., 500), where Andrews, J., says: “If the act of the agent was fraudulent, an action for the deceit is a concurrent remedy with assumpsit.” See, also, Bowen v. Mandeville, 95 N. Y., 240.

The doctrine of those cases seems to be decisive of this question, and requires us to hold that the plaintiff’s remedies for the defendant’s fraud and on his implied warranty were concurrent and not inconsistent. It follows, therefore, that the statement of the court, that the plaintiff having selected his remedy must stand by it and could not recover upon the contract, was not correct if held to apply to the implied warranty of authority which arose from the defendant’s unauthorized act as agent.

Assuming the incorrectness of this statement, the inquiry is presented whether the court erred in refusing to charge as requested, or in giving the reasons assigned for declining to do so. The action was a clear and well defined action for fraud. The only questions that were material to the case were whether the defendant made the representation under such circumstances and with the intent necessary to establish a cause of action for fraud. Whether the plaintiff might have maintained a different action, or might, if defeated in this action, still maintain a different one, were questions in no way material to any issue between the parties. Therefore, the court properly declined to charge as requested. The court was only required to charge upon the material questions in the case. Having done that, it was under no obligation to submit to the jury an abstract proposition of law for its consideration. Moody v. Osgood, 54 N. Y., 488; Hine v. Bowe, 114 id., 351; 23 N. Y. State Rep., 891. Nor was it error to refuse to charge upon an irrelevant point. Kissenger v. N. Y. & H. R. R. Co., 56 N. Y., 538. A refusal to charge a proposition, which, however true, is foreign to the case, is not error. Priebe v. Kellogg Bridge Co., 77 N. Y., 597.

But it is said that the reason assigned by the learned trial judge for declining to charge as requested was not correct, and hence, it constituted an error for which the judgment should be reversed. I do not think so. The reason given by the court was in effect that the plaintiff, having selected his remedy by that action, must stand by it. This was little more than denying the defendant’s request, and as the statement of the court related only to an immaterial question, it could not have injured the defendant.

It may be observed that the request was, not to charge that a judgment in this case would not be a bar to an action against the defendant for a breach of his implied warranty of authority, but was a request to charge that a judgment in the case would not be a bar to an action by the plaintiff against the defendant for the breach of a contract to buy the hops on his own account. This request clearly related to the sale which was the basis of this action, and was in effect a request to charge that if the contract was in form and substance a contract of sale between the plaintiff and defendant the plaintiff could recover in an action thereon. I do not think the court would have been justified in charging as requested, or that what was said in reply to such request constituted an error for which the judgment should be reversed. If there was such a contract between the parties, it was disaffirmed by the bringing of this action. The action was totally inconsistent with the existence of any such contract. Roberts v. Ely, 9 N. Y, State Rep., 796.

Moreover, I do not think the exception taken by the appellant sufficient to raise the question as to the correctness of the language employed by the court in its statement in relation to the plaintiff’s selection of a remedy. The appellant requested the court to charge a distinct proposition. It declined, and then gave a reason for doing so. There was no specific exception to what the court said, but only a general one, which would seem to relate to the refusal of the court to charge as requested, rather than to the reasons assigned for such refusal. The exception did not in any manner refer to that portion of the charge now objected to, so that the court could have understood that the exception related to the reason assigned for its ruling. “ When it is intended to except to a specific proposition or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language entirely plain, so that there can be no doubt as to the real character of the exception or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used, if he deems it proper, and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply." Mc-Ginley v. U. S. L. Ins. Co., 77 N. Y., 495, 497; Bosley v. N. M. Co., 123 id., 550, 558; 34 N. Y. State Rep., 277.

If, however, the exception were to be regarded as an exception both to the refusal to charge as requested, and to what was said by the court, still, as the refusal to charge was proper, a general exception should not,'I think, be sustained. The rule is well established that if a charge on a certain subject contains two or more propositions, and as to one of them the charge is correct, a general exception to the portion of the charge relating to that subject will bring up no question for review.

If the appellant desired to raise a question as to the propriety of .the language used by the court in denying his request, he should have taken a specific exception thereto. Hot having done so, I do not think that the propriety of that portion of the charge can be reviewed on this appeal.

I fully concur in the opinion of my brother Hardin in this case, except in his conclusion that the remarks of the court in declining to chai’ge as requested constituted error for which this judgment should be reversed. I cannot concur in that conclusion. I am of the opinion that the judgment and order should be affirmed, with costs.

Judgment and order reversed and new trial ordered, with costs to abide event.


text:
    John Storm et al., Resp’ts, v. The Phenix Ins. Co. of Brooklyn, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Insurance (fire)—Waiver of' conditions of policy.
    In an action upon a policy of fire insurance, defendant claimed that there was no liability because the plaintiffs failed to produce invoices, etc., as required by the policy, but it was shown upon the trial that the defendant’s adjuster, in an interview with one of the plaintiffs, waived the producing of more definite information and several times asked him how much he would take, etc. Held, that it was inferable from the interviews that the defendant recognized the validity of the policy.
    2. Same—Evidence.
    Where one of the plaintiffs has been cross-examined at great length on the theory that the fire was a dishonest one, it is not improper to ask him the question: “ Did you meet with any loss of any consequence between the time you commenced business and the fire ? ”
    3. Same.
    Where the policy specifies 1 ‘ stock of furniture and sewing machines contained in a one and one-half story building,” a witness may be permitted to state .what kinds of property are carried “ or kept in stock” by furniture dealers in country stores of that character.
    4. Same.
    Defendant’s agent was asked whether he had “found the people are generally ignorant of the conditions of their policies ” and answered: “I don’t find them all that way; I find some people .that probably were.” Held, that the question was harmless as defendant was not prejudiced by the evidence, as the witness stated no fact not generally known or understood. ■
    5. Same.
    A charge to the jury by the court, as to fraud, etc., that, “of course, when you come to the question of fraud or false swearing, it must be intentionally wrong, and not a mistake,” is not improper.
    6. Same.
    Plaintiff, who was charged with setting fire to bis own building, testified thq.t on the evening of the fire he left the building with one Dr. Potter, who resided some eighteen miles distant. Held, that the fact that plaintiffs did not produce Dr. Potter as a witness was not sufficient to justify interfering with the verdict in their favor.
    Verdict for the plaintiff for $535.94 in the Jefferson circuit, and the jury say: “ That in fixing the value of the property they include all the items in exhibit 35 at the prices therein stated, excepting No. 135, forty yards of rag carpet, $20, and item No. 180, twelve bottles of sewing machine oil, $10, which are not included.”
    Appeal from the judgment entered upon the verdict, and from an order denying a motion for a new trial made upon the minutes of the court.
    May 8, 1888, the appellant issued to the respondents its policy of insurance for the term of one year “ in the sum of $500 on stock of furniture and sewing machines contained in the one and one-half story frame building situated on the south side of Main street, Lafargeville, Jefferson county, N. Y.” The complaint alleges that on the 29th day of August, 1888, the plaintiffs owned and had in the building a stock of furniture and sewing machines of the value of $1,639.38, and that the property was wholly destroyed by fire on that day, and that due notice of and proofs of loss were given to the defendant. Defendant’s answer denied the allegations of the complaint, and alleged that after the fire the defendant had demanded an invoice of the goods and property claimed to have been destroyed, or certified copies thereof, and that the plaintiffs had failed and neglected to furnish the same, or to furnish the defendant with the names of persons from whom the said goods and property were purchased, and that plaintiffs were guilty of fraud and false swearing in their proofs of loss in stating the amount of such loss was upwards of $1,600, and that the fire by which the property was destroyed was caused by the act or procurement of the plaintiffs, with design and intent to destroy the property covered by the policy of insurance, and injure and defraud the defendant out of the amount of such insurance.

      A. H. Sawyer, for app’lt; Watson M. Rogers, for resp’ts.
   Hardin, P. J.

Appellant insists that a recovery in this action could not be had “ by reason of plaintiff’s failure to furnish invoices or bills of purchase of the property claimed to have been destroyed by fire, or certified copies of such bills or invoices, or to render any excuse for such failure, and the trial court should have directed a verdict as requested in favor of the defendant at the close of the proofs.” The policy contained a provision as follows: “ The insured as often as required shall produce for examination all books of account, bills,, in voices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.” By the evidence it appears that the plaintiff’s books of account, bills, invoices and other vouchers were totally destroyed by the fire, and that they had no originals or certified copies thereof. These facts were communicated to Marshall, the agent of the defendant, who visited the scene of the fire the day following its ^occurrence. These facts were also communicated to Mr. Camp, an adjuster and general agent of the defendant, who, a few days after the fire, in company with Mr. Storm, visited the premises to look into the matters pertaining to the loss; on that occasion the plaintiffs made up and gave to Camp a rough statement of their loss, which he took and carried away with him and retained. Subsequently and on the 13th of October, formal proofs of the loss were made and served upon the defendant, in which it was . claimed that the total loss was $1,639.38. Some correspondence took place in respect to the invoices and in respect to names of houses where the goods were bought; and assurances were given to the plaintiff that Camp would return to Lafargeville and further investigate the matter. In the month' of February, 1889, Camp went to Lafargeville and had an interview with the plaintiff Storm, who offered to go after Pierce and get him, stating that Pierce could furnish more information in regard to the matter, and in reply thereto Camp said he could get all the information he wanted of Storm. In regard to what took place at that interview, Storm testifies: “ We were in the sitting room there all that afternoon ; inquiring about such and such goods, where they were purchased; I told him if he would wait until I could drive over and get Pierce I thought be could give him more information in regard to it than I could, but he said he thought he could get all he desired from me; he took his list out and inquired where such and such articles were bought, and I told him as near as I could ; I gave him the names and residences of the persons that we bought of as well as I was able; I did not tell him at that time or at any time that I could not furnish vouchers for all and I would not furnish him any; I never said anything of that sort; I gave him all the information it was possible for me to give. * * * He told me that he thought I could furnish him all the information he wanted; that was after I had proposed to go and get Pierce; I then gave him what information I was able to; after that he did not tell me that that was not enough, or anything of that sort; I did not hear from him from that time nor see him nor have any letter from him. * * * Mr. Camp asked me, as many as five or six times, how much I would be willing to take, but he never made any proposition to me or how much he would give me; I did not say to him that I would have $500 or none; I told him I would take $500 ; if there was anything to be deducted from that it was for him to suggest, not I.” The evidence which we have quoted is in conflict with the evidence given by the defendant. It is insisted very earnestly in behalf of the appellant that the evidence did not warrant the court in submitting to the jury the question whether the defendant had waived a strict compliance with the provisions of the policy. It is inferable from the interviews that the defendant recognized the validity of the policy.

In Titus v. Glens Falls Ins. Co. (81 N. Y., 419), it was said: “ But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as matter of law waived ; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.” That case follows the doctrine laid down in Goodwin v. The Massachusetts Mutual Life Ins. Co. (73 N. Y., 480), in which latter case it was said: “ Nor is it deemed essential that the waiver should be explicit and pointed in its application.” The doctrine of the case just cited was approved in Roby v. A. C. Ins. Co. (120 N. Y., 517; 31 N. Y. State Rep., 560), and upon the facts disclosed in the latter case, it was held that the question of waiver was properly submitted to the jury. If the defendant had stood upon the correspondence, and no personal interviews had taken place between the plaintiffs and the agent of the defendant, the case would be more like O'Brien v. Commercial Fire Ins. Co. (63 N. Y., 111).

(1) In the trial of that case no claim was made that a compliance was impossible, or that the defendant had waived it; ” and the court observed that the question of waiver was made for the first time on appeal; and the court further observed: “Had that been the contention at the trial, it would have been a question of fact for the jury; the cause was tried upon that theory.” We think, therefore, the case in hand differs from the O'Brien case.

In response to a request by the defendant’s counsel the court charged the jury that “ unless the evidence establishes the proposition that Camp deliberately intended to' withdraw and not insist upon his requirement that the - plaintiffs should furnish such certified copies of invoices,” the jury could not find a waiver. We think this submission was as favorable to the defendant as it was entitled to.

(2) We think it was for the jury to determine whether credence should be given to Storm, as a witness, or to Camp, the agent of the defendant.

After Pierce, one of the plaintiffs, had been examined at great length in respect to the quantity of goods in the building at the time of the fire, and had been cross-examined exhaustively with a view of belittling his statements and questioning the extent of the property consumed, in re-examination he was permitted to answer the following question: “ Do you know how much capital you and Storm put into the business ? ” This question was objected to as immaterial and the defendant took an exception. After a careful perusal of all his evidence preceding the question we are not prepared to say that the inquiry was immaterial; we therefore disregard the exception. The same witness was asked: “Did you meet with any loss of any consequence between the time you commenced business and the fire? ” This was objected to as incompetent The witness prior thereto had been cross-examined upon the theory that the fire was a dishonest one, and considering the wide range of the cross-examination we think the admission of the fact that there had been no loss in business prior to the fire was not improper.

(3) A witness was permitted to state what kinds of property are carried or “ kept in stock by furniture dealers in country stores of that character.” The language employed in the policy was: “ On stock of furniture and sewing machines contained in a one and one-half story building.” Notwithstanding the objection to the evidence we think it was admissible. Hall v. Insurance Company of North America, 58 N. Y., 292; Wall v. Howard Ins. Co., 14 Barb., 383; Pindar v. The Kings County Ins. Co., 36 N. Y., 648.

It is said in Flanders on Fire Insurance, at page 72, viz.: “ The courts endeavor to give effect to the intention of the parties in construing policies of insurance. Hence in ascertaining what they were designed to cover they look at their general scope as well as at the collocation of the particular words. And as the language of an insurance policy is the language of the company, and they can therefore provide for every proper case, it is to be taken in a sense most favorable to the assured” And in Rolker v. Great Western Ins. Co., 4 Abb. Ct.App. Dec., 82, it is said the insurers “should be held to have extended the most liberal meaning of which the language is reasonably susceptible, as it was chosen by themselves.”

In Hall v. Insurance Company of North America, supra, Judge Grover said: “ It is an elementary rule that underwriters are to be assumed to know the usual course of conducting business in connection with which they issue policies. Hence, when a policy is issued upon a stock of goods in a specified business, the underwriter is presumed to know what goods are usually kept by those engaged in that business.”

(4) In the course of the cross-examination of one of the defendant’s agents he was asked to state whether, in his observation, he had “ found the people are generally ignorant of the conditions of their policies ? ” This question was objected to as incompetent, and the objection.was overruled and the defendant took an exception. The answer which the witness made was as follows: “ I don’t find them all that way; I find some people that probably were.” It is difficult for us to see how the defendant was prejudiced by that evidence. The witness stated no fact not generally known and understood or which does not frequently come to judicial notice.

(5) It is insisted in behalf of the appellant that the “plaintiffs were guilty of such misrepresentations, fraud and false swearing in reference to the loss that they ought not to be allowed to recover in this action for that reason alone.” In the course of the charge of the learned trial judge upon that subject he observed: “Of course when you come to the question of fraud or false swearing it must be intentionally wrong and not a mistake.” The charge seems to be in accordance with the decision of this court in Dolan v. Ætna Ins. Co., 22 Hun, 397.

(6) It is insisted in behalf of the appellant that evidence was given upon the trial tending to show the “ origin of the fire was raudulent, and the answer contained a charge that the plaintiffs set the fire' which destroyed their goods.” The plaintiff gave evidence to the contrary. One of the plaintiffs testified that on the evening of the fire Dr. Potter was with him in the store and he left the store with the plaintiff when he left, and he was not produced as a witness, although he resided some eighteen miles distant; and the position of the learned counsel for the defendant is that the failure to produce Dr. Potter must be taken as a circumstance against the plaintiffs. However, the circumstance is not conclusive.

Counsel calls our attention to Newman v. Cordell, 43 Barb., 455. In that case it was said: “ The absence of evidence, which it is clearly in the power of the party to produce, is often as effective in" disposing of a case as testimony of a positive character.” The force and effect to be given to the circumstance that Dr. Potter was not called was for the jury to consider. We may not regard his absence as a sufficient ground to interfere with the verdict All that is said in National Bank of Rondout v. Dreyfus, 14 W. Dig., 160, is that, under such circumstances, the failure to produce evidence available to a party is to be taken strongly against him. It is not a conclusive circumstance. We must assume the jury gave proper weight to it.

• (7) It is suggested by the learned counsel for the appellant that it was expressly provided by the policy that pictures, which would cover both paintings and chromos, should not be covered unless liability was specifically assumed thereon by the 'policy.” We have not found the policy set out in the case.

We are of the opinion that the question as to the extent of the damages was properly submitted to the jury for their determination, and that their verdict should be accepted.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.