author: Barbour, J. Moncrief, J.

text:
    Thomas Howard, plaintiff and respondent, vs. The Orient Mutual Insurance Company, defendant and appellant.
    1. As between insurer and insured, the owner of an insured cargo, not being the proprietor of the ship, has no rights, other than those possessed by the owner of a ship upon which a policy has been effected by him.
    2. There is no difference, as between insurer and insured, between the owner of an insured cargo, on board of his own ship, and one whose property is laden on board of the vessel of another, who, by employing such vessel to transport the-same makes-the master his agent and representative, for the purposes of the -voyage.
    3. In either case, the assured warrants the seaworthiness of the vessel, and retains to himself the risk Of all losses proximately caused by the perils insured against.
    4. In all contracts of marine insurance for a voyage, whether upon a vessel, its freight, or the cargo on board, the law implies an undertaking on the part of the assured that the vessel is of the character described in the policy, and that she is sufficiently seaworthy, at the commencement of the voyage, to perform the same. *
    5. The rule is now well settled, with us, that in all cases in which the following facts concur the underwriter is exonerated from liability, viz: 1. Where the vessel which is, or contains, the subject matter of insurance, leaves an intermediate port, whether a port of call or of distress, in an unseaworthy condition. 2. Where such condition is owing to the gross or culpable negligence of the master. 8. Where the property insured becomes lost or damaged because of the particular defect that rendered the vessel so unseaworthy, or by some means to which such defect directly contributed.
    6. A surveyor’s certificate, being an ex parte proceeding, is not admissible as evidence for the plaintiff, in an action on a policy of insurance, to prove what repairs to the vessel were necessary to be made, and the expense of such repairs, in the absence of all evidence tending to substantiate its correctness.
    (Before Moncief, Barbour and Garvin, JJ.)
    Heard June 14, 1864;
    decided December 31, 1864.
    This is an appeal from a judgment entered upon a verdict, and from an order, made pro forma by his honor Judge Mc-Cunn, denying a motion for a new trial. The action was brought upon a policy of insurance issued by the defendants, an insurance company of the city of New York, to the plaintiff, and dated October 22d, 1858, for the sum of $25,000. The plaintiff being a cotton spinner, of Hyde, near Manchester, England, in October, 1858. purchased, through his agent in the city of New York, 319 bales of cotton, which were shipped in that month on board the steamship Indian Empire, of the Galway line of steamers, to he transported to Galway, Ireland, and an insurance was effected on the 319 bales of cotton, on his behalf, by the policy above mentioned, to the extent of $25,000. The steamship Indian Empire with a general cargo, including this cotton, left New York on the 23d October,- 1858, bound to Galway via Halifax. She had aboard at starting 829 tons of coal, of which she had taken on board at New York 809 tons ; the remaining twenty tons having been left over from a previous voyage. On her passage to Halifax she encountered head winds and heavy weather ; was jive days in making the distance, 565 miles, from port to port, and consumed 280 tons of coal, reaching Halifax with 549 or 550 tons, on 28th October,. 1858. She remained at Halifax until 30th October, when she started for Galway, having taken in at Halifax ninety-five tons, making the total amount of coals on board for the voyage from Halifax to Galway, 2170 miles, 645 tons. Up to the 3d of November the weather was moderate, but after that date the steamer encountered head winds and heavy weather, continuing until the 11th November, by which day the steamer had consumed 537 tons of coal, and was in longitude 15 deg. 36 min. west, about 240 miles from Galway. On the 11th November, only 70 tons of coal remained, and these were intended to be reserved, but were in part washed away and pumped overboard November 13th, “ having the effect of choking the pumps.”* Efforts were made to save the remaining coals by lifting the ship over, but the position of the coal was not changed from the bunkers in which they had been originally -placed. The head winds and heavy weather ‘continuing after 13th November, and the supply of coal being exhausted or lost, the cotton and other cargo on board was used as fuel on and after November 14th, to work the engines and propel the steamer into port. She finally reached Broad-haven, which was not her port of destination, on 26th November, where, after receiving a supply of coals, she pursued her voyage to Galway, arriving there December 4th. Besides the cotton and other cargo on board, the spars, bulkheads, hawsers, and other fittings of the steamship were used as fuel, and the engines continued to work in good order until her arrival as before stated. It appeared that when the engines were stopped for want of fuel, and the pumps consequently ceased working, the water .gained upon the ship, which was rolling heavily, in the sea. After the arrival of the steamer at Gal-way, the master and officers made a protest, and a general average statement was subsequently made up in London. Out of the 319 bales of cotton insured by the defendants, 214 are stated to have been used as fuel; the remaining 105 bales arriving in safety. The whole amount of cotton insured, was brought into contribution in the general average statement, as constituting a general average statement, as constituting' a general average loss, and for such loss the plaintiff brings ffiis action under the policy. The appellants claimed that it' appeared clearly in the case, that 100 tons additional of coal, taken at Halifax, would have carried the steamer to Galway, and thereby averted a sacrifice of twenty or thirty thousand dollars’ worth of property, used to raise steam'for the engines. The steamer was capable of carrying 1050 to 1100 tons of coal, On leaving New York she had on hoard 829 tons. On leaving Halifax she had 645 tons. Captain Marshall, who built and ran the steamer for a'year, stated he should have 1000 tons, perhaps 1050 tons, on leaving New York for this voyage, and at the least seven or eight hundred tons on leaving Halifax, and that he would not consider it prudent to leave with less than that. The appellant claimed also that it appeared in the case, that the steamer .having ample capacity, omitted to take in a sufficient supply at Halifax, and the judge before whom the case was tried, took away from the jury the consideration of this question of fact, and although requested by the defendants to charge that the vessel was imseaworthy, On leaving Halifax, by reason of the insufficient supply of coal, directed the jury to find for the plaintiff, if the vessel had coals enough on leaving New York, notwithstanding “ the omission of the master to take in- a large supply of coal at Halifax, or to make any repairs of the sails, which, upon the evidence, it can be said she omitted to make.” The jury found that the ship was seaworthy when she left New. York, and that by reason of unusually tempestuous weather and the extraordinary violence of the winds and waves, the ship was badly strained and leaked heavily, and it became necessary, by reason of such tempestuous weather, to use the cotton for fuel, in order to keep the ship afloat and enable her to enter port. The jury were instructed that “if the use of the cotton was not to keep the ship afloat and enable her to enter port, but was only necessary to shorten the voyage, such a use would be unauthorized, and would not be a ground for charging the defendants.”
    The action was tried before Bosworth, J. and a jury, in June 1863. The plaintiff recovered a verdict for the value of the 214 bales consumed for fuel, and the further sum which he was compelled to pay by way of general average on the 105 bales . saved, amounting in the whole to $29,417.50, upon which judgment was entered.

      Samuel E. Lyon, for the appellant.

      J. S. Bosworth, for the respondent.
   Barbour, J.

I find no authority in the elementary writers on maritime insurance, nor in either of the many cases upon that subject which have been reported, for holding that, as between the assurer and the insured, the owner of insured cargo, not being the proprietor, also, of the ship, has any rights other than such as are possessed by the owner of a ship, upon which a policy has been effected by him. Nor am I able to discover any difference in principle, in this regard, between a man who is the owner of insured cargo on board his own ship, and one whose property is laden upon the vessel of another, and who, by employing such vessel to transport the same, makes the master his agent and representative for the purposes of the voyage. (See 2 Kent’s Com. 7th ed. p. 626, n.; and 3 id. 372, text.) In either case, the assured warrants the seaworthiness of the vessel, and retains to himself the risk of all losses proximately caused by the frauds or other wrongful acts of the master, not barratrous, and, indeed, all risks of losses not covered by the policy, and proximately caused by the perils insured against. I shall, therefore, assume at the outset of the examination of this case, that the owner of the cotton here has precisely the same rights which the ship owner would have been, entitled to, had he been also the proprietor, and that he is subject to like restrictions and liabilities, so far, at least, as concerns this question of contribution in general average.

In all contracts of marine insurance for a voyage, whether upon a vessel, its freight, or the cargo on board, the law implies a warranty on the part of the assured, that the vessel is of the character described in the policy, and that she is seaworthy, at the commencement of such voyage to perform the same.

In this ease, the vessel is stated in the policy to be a steamship i a word which imports a three masted, square rigged vessel, capable of being propelled by sails and steam, or by either. This statement is not only, in itself, an express warranty that the vessel is of that description, but the warranty of seaworthiness, implied in all contracts of maritime insurance, attaches to her in both characters ; so that, when the voyage commences, she0 must be fully and adequately equipped, manned and provisioned, both as a steamer and as a sailing vessel.

It cannot be disputed upon this appeal, that when the steamship covered by the policy in this case left the port of New York upon her voyage, she was entirely seaworthy ; for so the jury have found under a charge to which there was no exception in that regard. But, in the view I take of the case, it is important to ascertain whether the evidence given upon the trial was sufficient to authorize the jury to find, had that question been presented for their consideration, whether the vessel was seaworthy when she left Halifax, and if not, to what extent, if any, the master was guilty of negligence in leaving that port while she was in an unseaworthy condition. The appellant claims that she was deficient, both in sails and fuel.

The master stated in his examination upon commission, which was read in evidence upon the trial, in giving his reasons for burning the plaintiff’s cotton, and, evidently, for the purpose of showing that, when the cotton was burned, the ship was in such a condition that she could not have been taken into port by means of her sails alone ; that the vessel had lost several of her sails, having, on the night she left New York, split the fore-top-sail, and other sails in succession. This, it appears to me, was, in effect, saying to the jury that the sails, split before reaching Halifax, remained lost at-the time it was resolved to burn the cotton; and I think that would have justified them in finding, if they credited the evidence, that when the vessel left Halifax her complement of sails was materially deficient, and, for that reason, that she was then unseaworthy.

' The ship left New York at a quarter past six o’clock-in the afternoon of the 23d of October, and anchored in Halifax at a quarter past seven in the afternoon of the 28th, during which period of five days and one hour she consumed 280 tons of coal; being at the rate of about fifty-six tons per day. When, she left Halifax, she was furnished with 645 tons ; being a supply, at the same rate, for a fraction over eleven days and a, half j while the ordinary length of a voyage by her from that port to Gralway, in time, was about nine days.

It was proven that the distance from New York to Halifax was 577 miles, and from the latter port to Gralway 2182 miles. Taking the time occupied by the vessel in running from New York to Halifax, and her consumption of coal during that portion of her voyage, as a basis for calculation, she would,therefore, have required over eighteen days’ time, and more than a thousand tons of coal, from the latter port to Gralway ; and as we have seen, she actually had but 645 tons on board when she left Halifax.

Captain Marshall, who built the steamer and ran her himself for more than a year, testified that she often consumed as much as 60 or 65 tons per day; and, with hard driving, even-more than that.

It was also proven that the vessel continued to burn coal for twelve days after she left Halifax, at an average rate of about 45 tons per day, and that she was then in latitude 54 ■degrees 19 minutes north, longitude 15 degrees 36 minutes west, or, nearly 300 miles from her port pf. destination; although she had experienced but five days of stormy weather.

It appears to me that this evidence was sufficient to warrant the jury in finding, had the question been submitted to them, that the quantity of coal with which the steamer left Halifax was insufficient for the safe prosecution of the voyage; and, also, that the master was guilty of gross negligence in omitting to take on board an adequate supply there, as well as in failing to replace the sails that had been carried away.

No branch of the law of maritime insurance, perhaps, has been more discussed, or has given rise to a greater apparent contrariety of opinions, than that concerning the liability of underwriters in cases where the vessel containing, or being, the subject insured, leaves an intermediate port in an unseaworthy condition, and is afterwards lost or injured, during the life of the policy, in consequence of the perils insured against. Much of this difficulty has been caused, no doubt, by the efforts which have been made,, from time tp time, by many able judges and elementary writers, to so extend the warranty of sea-worthiness as to cover, not merely the state of the vessel at the commencement of the risk, but its condition in regard to seaworthiness on leaving every intermediate port, whether of distress or call, and, indeed, ■ at every stage of her voyage, and the exertions which have been made by other as eminent men to uphold the contrary doctrine; resulting, naturally, .if not necessarily, not only in the expression of extreme opinions upon both sides, but in overlooking, in many instances, the true legal obligations and liabilities of the assured. (See Dixon v. Sadler, 5 Mees. & Welsb. 405; Holdworth v. Weir, 1 M. & Ryl. 671; Peters v. Phenix Ins. Co., 3 Serg. & R. ; Putnam v. Wood, 3 Mass. Rep. 481; 2 Phil. on Ins. 114.; Paddock v. Franklin Ins. Company, 11 Pick. 227.)

I confess, I have never been able to comprehend and appreciate the force of the reasoning by which eminent jurists and writers have endeavored to establish the doctrine that underwriters are discharged from liability in this class of cases, through or because of an assumed warranty of future sea-worthiness, posterior to the commencement of the risk, supposed to be implied in the policy or contract of insurance. Nor can I perceive any necessity for resorting to that doctriue to estaba lish the non-liability of the underwriter in such cases. For, by receiving the premium and executing the policy, the insurer acquires an equitable interest in the subject insured, to the extent of the risk he assumes, but the property is, necessarily, left in the possession of the assured, or, of his agent and representative, the master, for the purposes of the voyage ; by the acceptance of the policy, and as such custodian of the property thus equitably belonging, pro tanto, to the underwriter, and convertible, in toto, into a legal ownership, in case of a technical total loss and abandonment, the assured, it appears to me, assumes, in regard to that interest of the insurer, a character and position similar to that of a mandatory, and takes upon himself the duty of prosecuting the voyage, and managing the property so entrusted to his care, and that of his agent, during the risk, and so long as such interest of the insurer continues to exist, as a skillful, careful, and prudent man would do, were he his own insurer ; and if he fails to do so, and the property becomes lost through his culpable negligence, or that of the master he has employed, either as ship-owner, or by sending his goods on board as cargo, I see no reason why that will not constitute a perfect defense for the insurer, upon well established principles of law in an action against him upon the policy, independent of any supposed warranty that the vessel shall be seaworthy after the voyage has actually been entered upon. (See Story on Bailm. § 137 et seq.)

In Paddock v. Franklin Ins. Co., (11 Pick. R. 227,) Ch. J. Shaw, after stating, in'effect, that the obligation to keep the vessel in good condition, and to repair damages for that purpose when practicable, is included in the implied warranty of seaworthiness, holds, that after the policy has once attached, the implied warranty should be so construed as to exempt the underwriter from all loss or damage proceeding from any cause thus warranted against, but to 'hold him still responsible for those losses which, by no possibility, could have been occasioned by a peril increased or affected by such warranty^that, if a vessel needing repairs or supplies,- leaves a port in which they could have been obtained, without procuring them, it is a fault and instance of negligence on the part of the owner ; and if she be afterwards lost by a cause which may be attributable to the insufficiency of the ship, and which cannot he traced to some independent and wholly distinct cause, such as capture or fire, the underwriters are discharged.

In Starbuck v. N. Eng. Mar. Ins. Co.,(19 id. 198,) the same court held that if the ship becomes unseaworthy upon the voyage, it is -the duty of the owner, as soon as he discovers it, to make her good; and that, if he does not repair her when he reasonably ought to do so, and a loss arises from it, the assured cannot recover, because it is not a loss by any of the perils insured against; but that if the loss arises from another cause, he may recover.

In The American Ins. Co. v. Ogden, (20 Wend. R. 287,) a vessel, sailing from Norfolk to St. Thomas, lost her anchor in going into Charleston, an intermediate port, and failed to replace it there ; and this rendered her unseaworthy when she left the latter port. She was afterwards damaged by some of the perils insured against, but to which the loss of the anchor in no wise contributed, and was abandoned. Chancellor Walworth, in the court for the correction of errors, said that the implied warranty of seaworthiness was applicable, only to the commencement of the risk, and not to any intermediate port during the continuance of the voyage, unless such unseaworthiness was caused by some accident or peril not covered by the policy; that if the warranty is complied with at the commencement of the risk, and the vessel is subsequently rendered unseaworthy by a peril insured against, it is only necessary ..that the master should use reasonable diligence to put her in a proper condition to proceed on her voyage ; and that, when there has been negligence on the part of the master in this respect, the underwriters are only excused from the payment-of the subsequent loss or damage which may have been caused or sustained by the want of such diligénce.

Senator Verplanck, in the same case, after expressing the opinion that the warranty of seaworthiness is fully complied with if the vessel is seaworthy when the risk commences, says : “Any defect of seaworthiness, arising afterwards, from bad faith, or want of ordinary prudence or diligence in the owner or his agents, discharges the underwriter from liability for any loss occasioned by, or in consequence of such want of faith, prudence, or diligence, but no others.” (See also Hollingworth v. Broderick, 1 Lond. Jur. 430 ; Coolidge v. New York Firemen Ins. Co., 14 John. 307 ; Van Valkenburgh v. Astor Insurance Co., 1 Bosw. 61; Capen v. Washington Insurance Co., 16 Law Reporter, 465 ; Hazard v. New England Marine Insurance Co., 1 Sumner, 218 ; Deblois v. Ocean Insurance Co., 16 Pick. 303; Mathews v. Howard Insurance Co., 11 New York Rep. 9.)

I am fully satisfied, upon a careful examination of the numerous cases upon the subject which are found in the books, that, however widely judges may have differed in regard to the technical reason of the rule, it is now well settled with us, that, in all cases in which the three following facts are found to exist, concurrently, the underwriter is exonerated from liability ; that is to say : First. Where the vessel which is, or contains, the subject matter of the insurance, leaves an intermediate port, whethér a port of call or of distress, in an unseaworthy condition. Second. Where such condition is owing to the gross or culpable negligence of the master; and third, Where the property insured becomes lost or damaged, because of the particular defect that rendered the vessel so unseaworthy, or, by some means to which such defect directly contributed.

The above facts, in regard to sails and fuel, therefore, if' hound by the jury, in this case, would have entitled the defendants to a general verdict in their favor ; and I think they would have been justified by the evidence in finding them, had the questions been submitted for their consideration. For, not only was the evidence sufficient to have warranted a finding that the steamer left Halifax in an unseaworthy condition, owing to the gross negligence of the master, as I have already said, but it is quite certain that the necessity for using the cotton as fuel, if such necessity existed, was caused by the unseaworthiness of the vessel, when she left Halifax, because of her inadequate supply of coal for the voyage before her.

For these resons, I am of opinion that the learned judge before whom the cause was tried erred in charging the jury that the defendants could not avoid responsibility upon the ground that the captain omitted to take in a larger supply of coal at Halifax, or to make repairs to the sails.

It appears to me, also, that there was error in admitting a portion of the surveyor’s certificate to prove what repairs were necessary to he made to the steamer, and the expense of those repairs; and that decision was of the utmost importance, inasmuch as it furnished the only ostensible evidence touching those matters.

The certificate, which is dated on the 12th of March, being more than three months subsequent to the arrival of the ship at her port of final destination, after describing the condition of the vessel, as found by the surveyor, upon' examination, on the first day of that month, states his opinion as to what would be necessary to have done to her, in order to repair the losses and damages she had sustained, and then sets forth his estimate of the cost of repairing and making good such losses and damages, amounting, in the aggregate, to over eleven thousand pounds "sterling.

The surveyor was examined on commission, as a witness in the case, and said, “ The condition of the ship appears fully by a report made by the witness, dated the 12th March, 1859, a true copy of which is hereto annexed.” .But he did not state, on such examination, that any of the repairs mentioned in his certificate were, in fact, necessary or proper; nor did he give any opinion whatever touching the estimated cost of making such repairs. Indeed, the certificate shows upon its face, that £5,050, of the amount of such estimated cost of repairing, is not the estimate of the surveyor himself, but is, merely, a statement of one, which is said in the certificate to have been made by an engineer.

The defendants’ counsel objected to so much of the certificate as embraced the opinion of the surveyor touching what was necessary to be done in order to repair the damages sustained by the vessel, and the estimate of the cost of those repairs ; and I think that objection was well taken. For, the survey or having been.an ex parte proceeding, was not admissible as evidence for the plaintiff, in the absence Of evidence tending to substantiate its correctness. (Abbott v. Sebor, 3 John. Cas. 39. Mitchell v. New England Insurance Co., 6 Pick. 117. Saltus v. Commercial Insurance Co., 10 John. 487. Watson v. Insurance Company of North America, 2 Wash. C. C. R. 480.)

I am, therefore, of opinion that the judgment ought to be reversed, and a new trial granted.

Moncrief, J.

(dissenting.) The plaintiff being the owner of 319 bales of cotton, shipped on board the steamship Indian Empire, at New York, to be carried from said city to Galway, caused an insurance thereon to be effected by and with the defendants. This cotton was destroyed while at sea, being burned as fuel while the ship was in imminent peril, and with the view to keep her afloat and to save the lives of those on board, as well as to enable the ship to reach a port of safety or her destination.

The jury was instructed, “ that if the ship started from New York with an insufficient supply of coals for her whole voyage, the plaintiff, could not recover, and of that sufficiency they must be the judges. * * That the quantity of coal which she had on board when she left New York was amply sufficient for the voyage, having reference to any delays or retardations in the voyage which might reasonably be anticipated by persons of competent skill and experience, (from adverse winds and storms on that voyage at that season of the year,) then she was seaworthy so far as that fact depended on the quantity of coal on board,” * * If you find that she was seaworthy when she left New York, the defendants cannot avoid a recovery on the mere ground of the omission of the master to take in a larger supply of coal at Halifax, or to make repairs to the sails which, upon the evidence, it can be said he omitted to make.” In other words, if the vessel was seaworthy when she left New York, the plaintiff is entitled to recover so far as his right depends upon the question whether the vessel was, in fact, seaworthy or not.” To this portion of the charge of the learned judge, exception was taken by the defendants, and was the main, if not substantially the only, point urged as error and ground of reversal of the judgment. There is an abundance of testimony upon the theory thus presented to justify the jury in finding for the plaintiff and in sustaining their verdict^ against the defendants, There remains, therefore, only to be considered whether the rule of law was correctly given to the jury in the part of the charge to them just quoted; andibefore such an examination is made it may be useful to know the relation of the parties as it is developed by their contract. It appears the cotton was shipped at New York on' board the good steamship Indian Empire, whereof —:— Courtney is master, for this present voyage, or whoever else shall go for master in the said vessel;” that the plaintiff “ warranted” the cotton “ free from damage or injury from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea-water with the articles damaged, occasioned by sea perils,” the defendants “ beginning the adventures upon the said goods and merchandises from and immediately following the lading thereof, on board of the said vessel as aforesaid, and so shall continue and endure until the said goods and merchandise shall be safely landed at, as aforesaid.” Touching the adventures and perils which the said Orient Mutual Insurance Company is contented to bear and take upon itself in this voyage, they are of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jetisons,. letters of mart and counter-mart, reprisals,«taking at sea, arrests, restraints and detainments of all kinds, princes or people, of what nation, condition or quality soever, barratry of the master and mariners, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandises, or any part thereof.”

It was not disputed that the cotton was in good order when shipped at New York; the defense, having relation to the subject now discussed, was a denial that the ship was seaworthy when she left the port of New York, * that she was not provided with a sufficient quantity of coal for fuel in the prosecution of her intended voyage * * and negligence of her owners, master or crew in not providing a secure place for the fuel with which she was provided. * * * Unembarrassed by principles promulgated by elementary writers upon maritime law, and avoiding the recognition of expressions of learned jurists in cases determining the rights of parties under contracts of marine insurances, it seems to me a simple matter to construe the agreement in question, ascertain the liability of the defendants, and to announce the principle upon which such liability is based. Under their agreement the defendants clearly were liable after the cotton was on board the ship while lying at the wharf if it had been destroyed by fire; after the ship had commenced her voyage, the necessity existing therefor, the defendants could not claim exemption for loss sustained by the cotton of the plaintiff being thrown overhoard ; in case the captain or crew had stolen the boats of the ship, and with the cotton abandoned the ship, the loss of the plaintiff being one of the perils insured against must be made good by the defendants. The principle so generally found in use in elementary books and quoted approvingly by jurists, in my opinion, has no application to such a policy of insurance-or indeed to the policy in general use where insurance is effected upon “cargo” not belonging to the owners of the vessel. I suggest, with great deference to so-called authority to the contrary, that an “ implied warranty that the vessel is seaworthy when the policy attaches,” can have reference alone to an insurance upon the vessel and cannot arise where only the cargo on board of a ship is insured by a stranger.

Arnould, (vol. 1, p. 667,) says : * * The assured is bound not only to have his vessel seaworthy at the commencement of the voyage, but to keep her so, so far as it depends on himself, during the continuance thereof, and at the commencement of all its stages.” The propriety and reason of this rule, even if not too broadly stated, is apparent; the owner of a vessel is always on board of his vessel by his agent, the master and .crew, and if a loss occur to the vessel by wantonness or negligence, it cannot be said that the injury and loss is attributable to a peril of the sea or a peril insured against. There was no express warranty by the plaintiff that the vessel in which his goods were shipped was seaworthy ; was there an implied warranty of seaworthiness ? By this term is meant, (says Parsons on Mercantile Law, pp. 442, 3,) “that every person who asks to be insured upon his ship by the mere force and operation of law, warrants that she is in every respect of hull, sails, rigging, officers, crew, provisions, implements, papers and the like, competent to enter upon and prosecute that voyage at the time proposed and encounter safely the common dangers of the sea.” Row it will not be denied that the policy attached, if at all, the moment all the goods were on board of the vessel after the agreement to insure had been made, nor that in case of a breach of any implied warranty at such a time there never was a valid contract of insurance. (3 Kent’s Com. 288. Paddock v. Franklin Ins. Co., 11 Pick. 227.) The reason assigned for this implied warranty invoked and existing by mere force and operation of law arises from the duty of the insured to communicate every species of intelligence which he possesses or must be presumed to possess, having relation to the subject matter sought to be covered by insurance. The omission to disclose what perhaps he alone knows, or can control and regulate, which might greatly enhance the risk and augment the amount of premium to be paid, being plainly fraudulent, necessarily vitiates the contract. The plaintiff owned the goods, and had no interest in the vessel.

The owner of a vessel may, as matter of law, be deemed to possess knowledge concerning its soundness and competency ; he is at liberty at his owif pleasure and sole will to supply insufficient sails, rigging, provisions, implements, papers and the like for his vessel; he may, without hindrance from any person, employ whomsoever he pleases as captain, officers and crew, and default on his part in so doing should not be chargeable against another ; the injury happening to his vessel by reason thereof is the result of his own misconduct arising from his own acts.

The shipper of goods may or may not have some or perfect knowledge of the hull of the vessel; so may the underwriter have, and in most instances in this great commercial city he has as good and most generally an infinitely greater acquaintance with the character of the builder, the materials used, the time of'her launch, the voyages run, the class of officers, &c. usually employed by her owners. But how, ordinarily, would it be possible for the shipper of goods to ascertain, before or at the time his goods are placed on board of the vessel, what particular captain or officers or crew are to be employed to conduct the voyage, or being engaged in prosecuting the voyage, will not, at its threshold, mutiny or abandon the ship, demanding a new selection; and how will he then ascertain who supply the places of those thus leaving ? Or suppose the goods are on board of the vessel one week or a day, and the owner of the vessel one hour before she sails supplies wholly improper and insufficient provisions, sails and implements, will the law imply a breach of duty against the shipper of goods for this unseaworthiness ? Again, it-is well known that the last duty, or. among the very last acts of the owner of the vessel is to provide proper papers from the custom house, and that none but he can procure them, and the cargo being all on board, and the vessel in readiness to sail is lying out in the stream, does the law require of the shippers of goods that they shall accompany the.owner of the vessel and see that improper papers are not obtained ? It seems to me that the law cannot be considered as demanding what not only is impracticable but manifestly absurd and unjust. Neither the fraud, misconduct or negligence of the owner of the vessel or of his selected agents can be imputed to the mere shipper of goods. The owner of cargo, even if an expert and on board the vessel from the commencement until the termination of her voyage, could exercise no control or authority upon those having charge of it, and however imminent the danger to himself, the vessel or cargo, even were he possessed of sufficient physical force to make the attempt at interference with the master in his conduct of the ship, would possibly merely involve himself in a new peril. The master and crew navigating and controlling the vessel are the servants of the owner of the vessel and owe no legal duty to the owner of her cargo; their misfeasance and nonfeasance are imputable only to the party whose servants they are and in whose business they are acting. (Mathews v. The Howard Insurance Co., 1 Kern. 15.) Aside, therefore, from the fact that the defendants did not set Up as a defense that the vessel was tin seaworthy when she left Halifax in not finding a larger or further supply of coal or repairing the sails, and leaving out of view that each of these matters were inferential rather than established affirmatively on behalf of the defendants, it appearing that the charge as made was more favorable than the defendants were entitled to, the exception must be held untenable.

The other exceptions noted upon the points of the learned counsel were not argued, and seem to me to be fully met and answered by the points on behalf of the respondent, and therefore are held to have not been well taken.

I think the judgment and order denying the motion for a new trial should be affirmed, and therefore dissent from the conclusion to which my brethren have arrived.

New trial granted.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Alexander Annett, administrator, &c. plaintiff and respondent, vs. Thomas Kerr et al. defendants and appellants.
    1. No action at law can be brought upon a bond given to the people of the state, as a bond, except when authorized by the obligees; in other words, by statute or equivalent authority.
    2. No special equity is presented by a case where the only facts appealing by the complaint, in an action upon an administrator’s bond, are a revocation of the letters of administration; a decree against the administrator, on an alleged final accounting, the return of an execution on such decree unsatisfied, an assignment of such bond-to the parties in whose favor the decree was made, and an assignment of it, by them, to the plaintiff.
    3. The action upon such a bond should be brought in the name of the people. The assignee cannot bring an action thereon, in his own name, as the real party in interest, under the Code.
    4. Even if such a bond can be prosecuted by the assignee thereof, in his Own name, the complaint should be dismissed if there is no sufficient evidence adduced on the trial of the amount for which the administrator was responsible. Evidence of payments by him to the next of kin, and losses of money by theft, should be admitted in exoneration of his liability.- He is also entitled to be credited with his wife’s share of the estate.
    5. The sureties in an administrator’s bond can only be made liable for the disobedience of the administrator to lawful orders of the surrogate.
    6. Unless the authority (whatever it may be) of the surrogate has to decree the payment by an administrator, after his removal, of the assets in his hands to his successor be derived from some other source than the right of the latter to an account, a decree directing him not only to render an account of his proceedings as 'administrator, but to show cause why the assets in his hands should not be paid over to the latter, is, so far as relates to any direction made-thereon for payment by the removed administrator of such sssets to his successor, void for want of jurisdiction.
    7. The enforcement of the delivery, by a removed administrator, to his successor, of assets in his hands,’ is not among the powers of the Surrogate enumerated in any statute; nor is it incidental to the exercise of any enumerated power.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 22, 1864;
    decided December 31, 1864.
    This was an action against the defendant Kerr as administrator of John Strahan, deceased, and his sureties on his bond to the people of the state given on the issuing of letters of administration to him, in 1858. It was conditioned “faithfully to execute the trust reposed in such administrator, and obey all orders of the surrogate of the county of New York touching the administration of” the decedent’s estate. In January, 1862, such administrator applied to the surrogate finally to settle his account as such, and after the issuing and service of a citation on the parties interested, filed his account, in April following. In J une following, (9th,) exceptions were filed to such account on behalf of the widow and next of kin of the decedent. Some time between that time and the 13 th of the same month, but when, does not appear by the case, the defendant Kerr was removed as administrator, on the application of his present co-defendants, (Perry and Thompson,) his sureties on his bond. At the last date the plaintiff was appointed administrator in his place, and three days afterwards (16 th June) applied to such surrogate, by petition, to compel the defendant Kerr to “render an account of his proceedings as administrator, and show cause why the assets in his hands as ” such “should not be paid over ” to the petitioner. In the beginning of July following, the attorneys for the plaintiff and the defendant Kerr stipulated in writing to bring on the settlement of the matters involved in such petition on the 15th of ■that month, and the same' attorneys, with the attorney for a special guardian of one of the next of kin of the decedent, agreed to allow the amount previously filed by such administrator in April to stand as his account, and the exceptions

      filed thereto as exceptions of the next of kin and widow. A motion, founded on such account and exception, for such decree as the sxirrogate might think proper to grant, noticed for the 18th of December following, (1862,) was made on the 15fch of that month, without the presence of the defendant Kerr, or any one on his behalf. Such account as previously filed was then settled and adjusted by such surrogate, showing a balance in the hands of such defendant of upwards of $1800. The surrogate, by a decree containing such settlement as then made, ordered the defendant Kerr, after retaining a certain sum ($165.57) for his commissions, to pay him a certain sum ($54.50) for the costs and expenses of such proceeding, to the proctors for the special guardian before mentioned (Messrs. Matthews & Swan) .a certain sum, ($200,) and a certain other sum to the proctor for the wife and daughter of the decedent, ($100,) for their respective costs, and the residue, being a little abov.e $1300, to the plaintiff. The proof of the service of such notice of motion consisted only of the recital thereof in the decree so made by the surrogate. Such decree was docketed in the New York county clerk’s office, and an execu-. tion issued thereon to the sheriff of the same county was returned unsatisfied. The surrogate of that county, in January, 1863, ordered the administrator’s bond to be assigned to “the said John P. Groshy and others, for the purpose of being prosecuted,” and in April. following he, jointly with Messrs. Matthews & Swan and Groshy, executed a formal assignment of such bond, under seal, to the plaintiff.

      W. Watson, for the appellants.
    I. The court erred in denying the defendant’s motion to dismiss the complaint.
    II. The court erred in overruling the question put to the witness Matthews :• “Have you ever been paid the two hundred dollars?” “Are you not the parties in interest ?” If Matthews & Swan were the parties in interest, there was no consideration for the assignment' by them, and it was void. The cases in which an assignee is permitted to sue in his own name are those in which the assignment was for a valuable consideration. (People v. Norton, 5 Seld. 176. Cummings v. Morris, 25 N. Y. Rep. 627.) The consideration of a sealed instrument may he impeached. This the defendant offered to do, and the evidence was rejected.
    III. There was no legal assignment of the bond, and this the defendant set up in his answer. The. administrator had no power to receive an assignment from Matthews & Swan and John P. Crosby.
    1. The powers of an administrator are défined by law in sections 3 and 4, 2 R. S. 298, 4th ed. He has no power to bring suits for third persons who are entitled to money by a •final decree. He can only sue for debts due his intestate. No authority is given him to bring suits on bonds given to the people, nor to take assignments thereof in order to sue for the benefit of third persons.
    2. The surrogate assigned the bond by an order to John P. Crosby and others. “The others” did not join in the assign-? ment to the plaintiff.
    3. Matthews & Swan and John P. Crosby, being alive, are not entitled either at common law or by any statute to the aid of an administrator, in the collection of their debts due by decree. If they in fact assign their interest, the assignee may sue. If they retain their interest, and assign the bond, that another may sue for their benefit, the assignment is without consideration and void.
    IV. No action can be brought by Annett on' this bond. The surrogate had no power to decree that the money be paid or the bond assigned to the new administrator. The statute gives him no power to decree payment of money to an admin» istrator, or to any person exeept one, to whom it is due, as creditor or next of kin. (2 R. S. 281, .§§ 79, 98. Id. 300, §§ 18, 19.) The learned justice at the trial was right in this, his first impression ’, and the 21st section, that changed his views to the effect that the money collected on the bond was assets in the new administrator’s hands, has no application to this case. That section was passed in 1830, and is applica» ble to the case of revocation before final accounting and for neglect to file an inventory, and no other. The revocation involved in this case is, under the law of 1837, made upon application of the sureties of the former administrator. The 21st section of the law of 1830 is not made applicable'in such cases. It has no application after accounting. The remedy prescribed is by the law of 1837, sections 63 and 64; this was followed by the plaintiffs, as shown by the evidence. The next of kin are entitled to the money, and the bond must be assigned to them. (2 R. S. 300, §§ 18, 19.)
    Y. Neither does the case come within the 68th and 69th sections. Kerr’s final account having been filed on the 2d of April, 1862, two months and upwards before Annett’s appointment, the money so found at that time to be in Kerr’s hands belonged to the next of kin, and the. surrogate had no power but to direct it to be paid, and the bond assigned to them. (2 R. S. 300, 4th ed. §§ 18, 19. Id. 281, § 75.)
    VI. But the decree obtained by Annett is void on its face. It was obtained by false suggestions. In order to obtain a citation against Kerr, Annett states in his petition under oath, on the 13th June, 1864, that Kerr had not rendered an account. He then consents that Kerr’s account, filed on the 2d April, 1862, be taken as the basis of the decree in question, and that account is adopted. It is void because there is- no proof that the citation was served upon Kerr thirty days before the hearing a pre-requisite to jurisdiction. (2 R. S. 277, p. 92, §§ 58, 68. People v. Barges, 12 Wend. 492.) If the consent of counsel is to take the place of this service, prescribed by law, then proceedings may be conducted in such haste as to escape the notice of sureties and others who are affected by the result.
    VII. But if the decree were valid, the defendant, not being a party, and having no notice of the accounting, is not concluded by it. The statute has enumerated- in what cases the accounting shall be conclusive. (2 R. S. 4th ed. § 75, p. 279.) This enumeration does not include omissions of the administrator to claim for a loss occurring without his fault, which by statute is to be allowed in his accounts. (President of the Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216.) The cases cited, below establish the proposition that the surety may in a' collateral action avail himself of any defense that his principal omitted in the original proceeding, unless in those cases where the proceeding is made conclusive by statute. And in that case the decree may be impeached for fraud or collusion. (2 Seld. 216. Douglass v. Howland, 24 Wend. 35, 52. Jackson v. Griswold, 4 Hill, 532. 2 McCord Ch. 185. Scott v. Dorsey, 1 Harr. & John. 227, 21. Beatty v. Moore, 7 Cranch, 281. Spidden v. The State, 3 Hare & John. 251. Haslett v. Glenn, 7 id. 23. Girt v. Cockney, Id. 134. Owens v. Collinson, 3 Gill & John. 25, 39. Simkins v. Cobb, 2 Bailey, 60. Pratt v. Nathan, 5 Mason, 95, 103. Hunt v. Hapgood, 4 Mass. R. 117.)
    VIII. Executors and administrators are not liable for losses by theft. (2 R. S. §§ 56, 278. Williams on Executors, p. 1507, and cases there cited. Furman v. Coe, 1 Caines’ Cases, 96.)
    IX. Aside from the above authorities, it is inequitable that an administrator, by omitting in his accounts to claim an allowance authorized by law, should enable jiis family to recover from his sureties money for which he himself was not liable.

      A. Matthews, for the respondent.
    I. There ¡was no error in the court’s overruling the objection that there was a defect of parties plaintiff.
    1. The defect, if any, was apparent upon the face of the complaint, and by not demurring, the defendants have waived it. (Code, §§ 144, 147, 148. Zabriskie v. Smith, 1 Kern. 480.) (1.) The demurrer is the only remedy. (Getty v. Hudson River R. R. Co., 8 How. Pr. 177. Higgins v. Rockwell, 2 Duer, 650.) (2.) A party cannot both demur and answer. The answer supercedes the demurrer. (Struver v. The Ocean Insurance Co., 16 How. Pr. 442.)
    2. The bond was properly sued in the name of the plaintiff. (1.) The plaintiff is the real party in interest, (a.) The plaintiff might have sued without the assignment by the surrogate. (The People v. Guild, 4 Denio, 551. Baggott v. Boulger,
      2 Duer, 160.) (2.) The assignee of a chose in action is the proper party to bring suit. If the assignment is good between the parties thereto, or the defendant is protected from any other claimant, the court will not look further into it. Cummings v. Morris, 3 Bosw. 560. S. C. 25 N. Y. Rep. 625. Myers v. Machado, 6 Abb. 198.) (a.) The consideration is unimportant. (Burtnett v. Gwynne, 2 Abb. 79. Sheldon v. Wood, 2 Bosw. 267. Byxbie v. Wood, 24 N. Y. Rep. 609. (6.) Where the assignment is absolute on its face, parol evidence-cannot be given to show the assignor retains an interest in the subject matter, and should be a party to the suit. (Durgin v. Ireland, 4 Kern. 322.) (3.) The plaintiff might have sued in his individual name, and his title of administrator may be rejected as surplusage, both as respects his original and his acquired interest. (Merritt v. Seaman, 6 Barb. 330. 6 N. Y. Rep. 168. Eagle v. Fox, 28 Barb. 473.)
    II. The' defendants, as sureties upon the bond of the former administrator, were liable, under the statute, to account to the plaintiff as administrator de bonis non; and the recovery is assets in his hands, of the estate he represents. (See act of 1837, §§ 29, 32, 33 ; Gottsberger, adm’r, v. Taylor, 19 N. Y. Rep. 150.)
    1. Sureties may apply to the surrogate for relief, (§ 29,) and the surrogate may revoke letters of administration, (§ 32,) and he must then grant new administration of the goods, chattels and credits not administered, (§ 33,) &o. (See 2 R. S. p. 77, §§ 48, 51, 52.)
    2. Where letters are revoked, the surrogate must issue new letters upon the goods unadministered, in the same manner as original letters in case of intestacy, and the new administrator must give neto bonds as in cases of intestacy, and has like powers. (See 2 id. p. 78, § 55, [45.])
    3. When letters of administration are issued, the administrator must give bonds in amount not less than twice the value of the personal estate of which the deceased died possessed. (Id. p. 77, § 43, [42.])
    4. Whenever directed by the surrrogate, the bond of a former administrator may be prosecuted, and the amount recovered is assets. (Id. p. 85, § 22, [21.])
    5. When the authority of an administrator is revoked, he may be cited to account before. the surrogate, at the instance of his successor. (Id. p. 95, § 72, [68.])
    6. The administrator, when removed, may himself cite his successor to attend an accounting and settlement, and “ such settlements and accounts shall have the like effect in all respects as in the case of a settlement at the instance of a creditor." (Id. p. 95, § 73, [69.])
    7. Whenever an account is rendered by an administrator on final accounting, the surrogate must make a decree for payment and distribution of the assets among the creditors, except where the accounting is had under the foregoing provisions, of the statute, (§§ 68 and 69,) (72 and 73) relating to administrators de bonis non. (Id. p. 95, § 75, [71.])
    III. The “third defense" in the answer was bad on its face, for want of statement of facts ; besides, no proof was offered to sustain it.
    IV. The “fourth and fifth defenses” were no defense to this action.
    V. The exceptions to the ruling of the court were not well taken. (The People v. Rowland, 5 Barb. 449.)
   By the Court,

Robertson, Ch. J.

The bond in suit in this case being to the people of the state, no action could be brought upon it, at law, as a bond, except when authorized by such obligees, in other words, by statute, or equivalent authority. In a proper equitable case an action might, perhaps, be maintained upon it as a stipulation or judicial recognizance, (Carow v. Mowatt, 2 Edw. Ch. 57,) but then only by the officer in whose hands it is deposited. (Bolton v. Powell, 14 Beav. 275. 2 De G., M. & G. 1.) Although even that has been doubted. (14 Beav. 290, 291.) The complaint in this action, however, shows only the case of a revocation of the letters of administration of the defendant Kerr, (without stating the cause,) a decree against him on an alleged final accounting, and the return of an execution on such decree, after docketing, unsatisfied. It also alleges an assignment, by the surrogate, of such .bond to the parties in whose favor such decree was made, (of whom the plaintiff is one,) and the second assignment of it by them to the plaintiff. No special equity is therefore presented by such a case.

It would seem that before the passage of the Revised Statutes, an action could be brought upon such a bond whenever any of its conditions were violated, by parties prejudiced thereby, (People v. Dunlap, 13 John. 437,) but only in the name of the people. The first question that presents itself, therefore, is, whether the plaintiff can bring an action in his own name, under the Code, on such bond, as the real party in interest. (§§ 111, 113.) The former mode of entering up judgment in a suit on a bond, for the penalty, in case of a breach, to stand as security for future breaches, being abolished, it is difficult to say how the sureties can avail themselves, in future actions for breaches of such bond, of their payment of any money recovered by the present plaintiff in this. It would seem, therefore, that the action should have been brought in the name of the people, so as to make the parties in each successive action the same, unless by statute or a surrogate’s decree the plaintiff acquired such an interest in the bond, as to entitle him to bring an action in his own name.

The statutes of this state have, however, provided for every contingency in which it might be necessary to prosecute an administrator’s bond, and regulated the prior steps for instituting an action thereon. The mere fact of so prescribing cases for such prosecution would seem, by implication, to deny the right in all others. Unless the provision of the Revised Statutes which gives to letters of administration, issued after the revocation of prior ones for the evasion by the administrator of personal service of a summons to render an account, or his remaining imprisoned a certain time for not doing so, (2 R. S. 92, § 53,) the like effect as it gives to those issued after a like revocation for. omitting to file an inventory or avoiding service of a summons to compel it, also thereby gives the right of prosecution on such bond, such statutes expressly allow such right only in the latter case. (2 R. S. 85, §21.) The right of recovery in such prosecution was by such latter provision extended to unliquidated damages for any injury to such estate by any act or omission of such removed administrator, besides the value of any property unadministered. The whole amount so recovered was to be assets in the hands of the new administrator. (Id.) Probably on account of the restricted character of such provision the legislature, the same year in which the Revised Statutes went into effect, (1830,) passed a law authorizing a surrogate to cause an administrator's bond to he prosecuted whenever he omitted to perform a decree for the payment of money, and to apply himself the moneys recovered to the satisfaction of such decree, (Laws of 1830, p. 570, ch. 320, § 23,) thus leaving the control of the proceedings with that officer. But such prosecution was still restricted to cases of decrees on rendering an account, or a final settlement or for debts, legacies or distributive shares. (Id.) But in 1837 the legislature gave accumulative and more extended remedy, (People v. Guild, 4 Denio, 551,) in every case of a surrogate’s decree against an administrator for the payment of money. (Laws of 1837, p. 535, § 65. Id. of 1844, p. 90, §§ 1,2.) But the party thereby allowed to prosecute such bond was required to have prior thereto an execution upon such decree docketed in a county clerk’s office returned unsatisfied. (Id.) No such privilege was, however, given in either of the statutes of 1830 or 1837, merely upon a revocation, as was given by the Revised Statutes. The right to prosecute such administrator’s bond at all in this case, if the statutory provisions just referred to, (People v. Corlies, 1 Sandf. 228,) are exclusive, (as the surrogate’s order is not sufficient unless based on proper proceedings, (People v. Barnes, 12 Wend. 492,) must depend on the plaintiff’s bringing it within the statutes of 1830 and 1837, since the revocation of the letters of the defendant Kerr does not appear to have been under the Revised Statutes, for omitting to render an account or file an inventory, but, by the recital in the decree, under the statute of 1837, (c/z.-460, §§29 to 32,) to have been on the application of sureties.

This case does not come within the statute of 1830, before, cited, because the decrees therein specified are only those upon rendering an account, a final settlement, or for a debt, legacy or distributive share. And although a substituted administrator may call his predecessor to account, (2 R. S. 95, § 68, extended by statute of 1837, ch. 460, § 36,) yet such accounting is expressly excepted from the cases itít which a surrogate is required to decree payment and distribution of assets on hand, (id. § 71,) and appears to be only a means of discovery of the disposition of the assets, as in case of a creditor, (id. § 86, 2 R. S. 92, § 54,) and merely auxiliary to some future proceeding, either by action on.the bond or a new application under the Revised Statutes, (vol. 2,p. 92, § 52,) by parties interested, for a final account. Unless, therefore, the surrogate derived his authority to decree a payment by the defendant Kerr of the assets in his hands to the plaintiff from some other source than the right of the latter to an account, the decree was extra .jurisdictional. Such case is in that event equally without the statute of 1837. The sureties can only be made liable for the disobedience of the administrator to lawful orders of the surrogate.

But if the bond in this case could legally be prosecuted, .the .next question which arises is, whether the plaintiff could prosecute it in his own name. That he could only do by some common law or statutory right, or the creation of an interest in him, either by the surrogate’s decree or otherwise, entitling him to administer or retain the amount recovered. (Code, § 111.) I have already shown he had no such right, and the assignment spoken of in the statute of 1837, could not have been intended to divest the people of the state of the ownership of such bond, but only gives a right of sueing thereon.' The creation of such interest depends entirely upon the decree in question legally bringing this case within the statute of' 1837, as one for the payment of money. The validity of that decree, therefore, necessarily becomes a matter of inquiry. ■ It would be a necessary subject of such investigation, notwithstanding the bond was one to be prosecuted, and in the name of the plaintiff, because the admissibility of such decree as evidence (conclusive or otherwise) is raised by the objection thereto, and the offer of evidence on the trial of this case to prove it erroneous. In actions under the statutes of 1830 and 1837, before mentioned, the amount of the unpaid decree must be the measure of the recovery.. In one under the provisions of the Revised Statutes, in case of a removal of an administrator for not rendering an account or filing an inventory, the amount of recovery is left entirely open for inquiry in the court in which the action is brought. Unless the surrogate had jurisdiction on an application by a substituted administrator for a final account by his predecessor to compel the latter to pay over what was found in his hands, he clearly had none to determine the amount, unless it was part of his general jurisdiction, or incidental to some branch thereof

The jurisdiction of the surrogate’s court,- which is a creature of statutes, is essentially special and limited’ both in the subjects over which it is exercised and the mode of its exercise, when that is prescribed. (Sheldon v. Wright, 5 N. Y. Rep. 497; S. C. 7 Barb. 39. People v. Barnes, 12 Wend. 492. Corwin v. Merritt, 3 Barb. 341. Paff v. Kinney, 1 Bradf. 1. Cleveland v. Whiton, 31 Barb. 544. Farnsworth v. Oliphant, 19 id. 30.) And that, too, notwithstanding the restriction upon the exercise of incidental powers imposed by the Revised Statutes (2 R. S. 221, § 1,) has been removed. (Laws of 1837, ch. 460, § 71. Sipperly v. Baucus, 24 N. Y. Rep. 46.) It is only, therefore, in case of the enforcement of the delivery by a removed administrator of assets in his hands to his successor, being either a specially delegated power of a surrogate, or necessarily incidental to one, that he would have jurisdiction to make a decree such as that in question, so as to bind sureties on the bond.

The Revised Statutes confer on the courts held by surrogates judicial power over eight enumerated subjects, which they declare are to be exercised in the cases and manner prescribed by the statutes of this state, (2 R. S. 220, § 1,) none of them, except the third, fourth and sixth, have any relation to an administrator’s accounts or conduct, as they only relate to proving wills, granting letters, selling real estate, guardians and dower. Such third and fourth thereof, however, are “To direct and control the conduct, and settle the accounts of executors and administrators,” and “ enforce the payment of debts and legacies and the distribution of the estates of the intestates.” The eighth is of the most vague and indefinite as well as general kind, “To administer justice in all matters relating to the affairs of deceased persons,” which, however, as well as the authority to direct and control administrators, is after all expressly limited to the cases and manner prescribed by statute. (Id.) If recourse be had to prior statutes of the state regulating the jurisdiction of surrogates, passed from 17.87 to 1828, the powers thereby granted will be found to be, as they are ably summed up in the elaborate opinion of the acting surrogate, in Re Bride’s estate, (15 Abb. 12,) comprised under thirteen heads. Those include, besides those enumerated in the Revised Statutes and incidental powers, four others, to wit: 1. Taking oaths to accounts and inventories of executors and administrators. 2. Recording wills and other documents and orders. 3. Investigating the disposition of the personal estate of decedents, by strangers. 4. Compelling the production of documents and attendance of witnesses.

The enforcement of the delivery by a removed administrator to his successor, of assets in his hands, cannot be said to be incidental to any of such enumerated powers. Such delivery would not facilitate, but if any thing rather impede, the payment of debts and legacies, or a distribution while yet unacertained. If decreed, any payment of them could only be partial and inconsistent with a final accounting on the application of other parties interested. It would be unjust to deprive executors or administrators of their commissions when removed for no fault, but at the will of their sureties, (Laws of 1837, ch. 460, §§ 29, 32, 33 ;) and it would be equally unjust to deprive their successors of commissions for taking charge of the game fund, or to charge the estate with double commissions on it. Such litigation between the new and the old administrator would settle nothing as between the latter and creditors, legatees or next of kin, either as to the amount due, or freedom from all liability. The new administrator may have a right to know how much of the estate is in the hands of his predecessor, in order to provide for debts and legacies on a final distribution, or for contingencies affecting the estate, but to order the payment to him in order that he may distribute it, is unnecessarily multiplying proceedings. All parties interested in the estate as creditors, legatees or next of kin, have a right to summon a removed administrator to account, and procure a decree against him, which, if unsatisfied, could be enforced in a suit on the bond. In case of a removal of an administrator for not filing an inventory, or for not rendering an account, it is very evident the statute does not contemplate a prior decision by the surrogate, since the extent of the recovery is designated. That such enforcement of a delivery of assets was not in this case incidental to the exercise of any enumerated power of the surrogate’s court, is evident from the surrogate’s failure to exercise any such power. The account of the defendant Kerr, as administrator, was not settled as regarded any creditor, legatee or next of kin; no debt or legacy was ordered to be paid, nor were the assets in his hands distributed. Such decree, therefore, so far as it ordered payment by the defendant Kerr, to the plaintiff, was void for want of jurisdiction.

If the account rendered by the defendant Kerr had been a final accounting, as it might have been, if it had been made upon his application, (2 R. S. 95, § 69,) it would only have been conclusive of four facts, (2 R. S. 94, § 65,) to wit: 1. The correctness of the charges in it for moneys paid to creditors, legatees and next of kin, and for necessary expenses. 2. The extent of the liability of such defendant for interest. 3. The limit of the ability to collect debts stated in such account. 4. The correctness of the allowances for decrease and charges for increase in value of assets. As these are mostly in favor of the accounting party, it is evident that, for other purposes, the settlement in the decree determined nothing as to the quantity or value of assets collected or received, or the liability of the' administrator for losses, which was therefore entirely open for new evidence. The plaintiff was bound to prove them, and the defendants were entitled to introduce contradictory evidence.

Even, therefore, if the bond could have been prosecuted, and by the plaintiff in his own name, I am satisfied it was error not to have dismissed the complaint for want of sufficient evidence of the amount for which the defendant Kerr was responsible, and that evidence of payments by him to the next of kin, and losses of money, should have been admitted.; also, that the defendant" Kerr was entitled to his wife’s share. For these reasons, independently of the right to prosecute the bond, or bring the action in the plaintiff’s name, I think there should be a new trial, with costs to abide the event. The plaintiff will then have an opportunity to apply to amend his com.plaint, if so advised, so as to make the case one of equitable cognizance, if it can be made so.

The judgment must therefore be reversed, and a new trial had, with costs to abide the event.

      ) The judgment in this case was affirmed in the Court of Appeals, (35 N. Y. Rep. 256.)