text:
    Livingston v. Roberts.
    Notice of a motion, under the last sentence of section 282 of the Code, need not be given to the appellant’s sureties; it is enough that it is given to the owner of the judgment appealed from.
    At Special Term,
    September 26, 1856.
    The plaintiff having obtained a judgment, the defendant appealed to the General Term, and gave an undertaking which operates as a stay of proceedings. He now moves, under section 282 of the Code, for an order, that the clerk enter on the docket of the judgment, that it is “secured on appeal.” Notice of the motion has been given to the owner of the judgment. The plaintiff objects that no notice has been given to the sureties in the undertaking.
   Bosworth, J.

The Code does not require notice to the sureties, but only to the owner of the judgment. It is true the Code declares the court may make this order on such terms as it shall see fit. These terms, it was doubtless supposed, would be such as would be for the benefit of the owner of the judgment. Sureties may fail or become embarrassed before such a motion is made. When that is found to be the case, the court would not grant the order without further security was given. The legislature has not seen fit to require notice to be given to the sureties. As the owner of the judgment suggests no reason why the motiop should not be granted, except that no notice has been given to the sureties, the motion is granted.


source: Caselaw Access Project

author: Bosworth, J.,

license: Public Domain

text:
    Fake v. Edgerton & Britton.
    Executions, to be valid, need not state the time or place of their return.
    One against the body may issue short of sixty days, after the return of one against property. The former need not recite facts showing the right to arrest a defendant.
    It is enough that he was held to bail by a valid order which continues in force.
    At Special Term,
    September 26, 1856.
    Defendant Edgerton moves to set aside an execution against his person, on which he has been arrested. The defendants were held to bail by an order still in force. Judgment was perfected on the 3d, and a transcript filed July 7th, 1856. An execution against defendant’s property was issued to the sheriff of Hew York city and county that day, and returned unsatisfied August 5th.
    The ca. sa. was issued September 3d, and is endorsed with directions to arrest Edgerton only. He now moves to set it aside, because, 1st. Ho place or time, where or when it is to be returned, is mentioned in it. 2d. Sixty days had not elapsed between the issuing of the two executions. 3d. That defendant being a resident of Kings, an execution against his body was irregular, until one against his property had been issued to that county, and returned. 4th. It does not appear on the face of the ca. sa. that it was issued by order of the court, or that the action was one in which the defendant could be arrested.. 5th. Directions were endorsed to arrest only one defendant, while the judgment is against two, as joint contractors.

      H. Buckman, for plaintiff.

      D. McMahon, for defendant.
   Bosworth, J.,

held, that section 289, which prescribes the form of the execution, does not require a return day to be named in it. The sheriff is required by section 290 to return it within sixty days after he receives it. The duty which that section imposes, need not be stated in the body of the execution.

It is not necessary that sixty days should intervene between the issuing of the two executions. It is enough that the first has been actually returned by the sheriff, when he, has acted boná fide. (§ 288.)

To charge bail, it was necessary before th.e Code, to issue .a fi. fa. to the county in which the defendant was arrested. That was done in this case. The Code has not required one to be issued to the county where the defendant resides.

The ca. sa., on its face, states all which section 289 requires. It is enough to justify the execution, that an order was made holding the defendant to bail,-which is still in force. (2d Seld, 560.) Whether that order may properly form part of the record it is urn necessary to decide.

It is not easy to perceive why one defendant,, liable- to be arrested, should complain that another, by instructions from the plaintff, though equally liable, has not been.. The execution is.regular in form, and such instructions do not authorize the release of a party rightfully arrested under it.. Motion denied, with, five dollars costs,, .


author: Bosworth, J.

text:
    Webster v. Stevens.
    On appeal, the respondent may except to the sureties in the undertaking, within ten days after it is filed, though more than ten days have elapsed after a copy of it, and the notice of appeal, were served.
    At Special Term,
    September 26, 1856.
    The plaintiff served on the 18th of August, on the defendant, a notice of appeal to the Court of Appeals, and a copy of the undertaking executed to effect a stay of proceedings. The undertaking was not filed until the 13th of September, and on the 16th defendant excepted to the sureties in the undertaking. Plaintiff now moves that the notice of exception “be vacated and set aside,” or that the term of justifying be extended.-

      M. K. Burke, for plaintiff.

      Henry Day, for defendant.
   Bosworth, J.

To render an appeal effectual for any purpose, the appellant must execute an undertaking (Code, § 334) to pay costs; and to effect a stay it must provide for paying the judgment, (§ 335.) The undertaking is of no effect unless a copy of it and of the affidavits of the sureties be served, (§§ 340, 341.) It must be filed with the clerk, with whom the judgment is entered, (§ 343.) The Code does not in terms say it must be filed, before the undertaking can be of any effect. It is quite clear that until it is filed, the respondent has no security that one exists which can be made available to him. It may he destroyed, and he be unable to prove that it ever existed. I think it a fair construction. to hold, that to make a certain and perfect delivery of it to the use of the respondent, it should be filed. Prior to the Code, a plaintiff in error was required to file the bond at the time of serving the writ on the clerk. (2 R. S., 597, § 32.) In the Court of Chancery, the appellant-was required to file his bond and notice of appeal within the time allowed to appeal. (1 Barb. Ch. Pr., 401 and 4091)

Under the Code, no approval of the bond, not even an ex parte one is required, unless exception’ is taken to the sureties. There is no hardship in requiring an appellant to file his undertaking with his notice of appeal. The defendant cannot be certain that there is an undertaking to which he can resort until it is filed. I think his exception was taken in time. But an order may be entered, extending the time to justify, ten days.


author: By the Court. Bosworth, J.

text:
    Ford, respondent, v. Turner, Townsend & Johnson, appellants.
    A decision at Special Term, overruling a demurrer to a complaint, and giving leave to answer, is an order, and not a judgment, while the privilege given to answer is continuing.
    A decision of the General Term, which merely affirms such order, is, itself, an order, when the complaint is one on which the court must subsequently decide at Special Term what is the nature and extent of the relief to be granted.
    An appeal from such a General Term decision, accompanied with the undertaking prescribed by section 334 of the Code, does not stay proceedings on the part of the plaintiff. An application for a stay, in such a case, and under such circumstances should be denied.
    (Before all the Justices, except Hoffman, J.)
    This action came before the court, on an appeal by three of the defendants from an order denying an application on their part for a stay of plaintiff’s proceedings pending an appeal, which has been taken by them from a decision of the General Term, to the Court of Appeals. The following is a brief history of the proceedings :—Ford originally made David and Turner defendants. They answered. Their answer disclosed a state of facts existing when this action was commenced, rendering it proper, in the plaintiff’s view of his rights, to have Townsend and Johnson made parties, and entitling him to relief against them. An order was granted, authorizing the plaintiff to make them parties to a supplemental complaint. That was done. They severally demurred to the original and supplemental complaint. Turner also demurred to the latter, and David omitted to answer it. The demurrers stated various grounds, and among others, that there was a misjoinder of causes of actions, and of parties, and that no cause of action against either was shown by the complaint. The complaint sought equitable relief, viz., a judgment, that David should pay plaintiff a certain sum; that it should be declared a lien on certain property mentioned in the complaint, and that Turner, Townsend and Johnson, who had been severally and successively owners of such property, should be declared liable for the same sum, and directed to pay it, on default of collecting it of David, or out of the proceeds of such property.

      The demurrers were overruled at Special Term, in March, 1855, with liberty to answer, on terms, in twenty days. That order or decision was affirmed on appeal, by the General Term, in October, 1855. The time to answer having expired, the action was noticed for trial at the June Special Term, 1856, on the issues of fact, and notice was given to the demurrants, that, at the same time, application as against them would be made for the relief demanded by the complaint. The action was then tried; the demurrants appeared, and were heard, and various exceptions were taken by them to the proceedings then had. At Special Term it was decided that the plaintiff was entitled, substantially, to the relief demanded by his complaint. The demurrants appealed to the Court of Appeals from the decision of the General Term, which affirmed the order overruling the demurrers, and gave the statutory security for costs only. They obtained an order staying proceedings and granting time to make a case to renew the proceedings had at Special Term on the trial of the action. A case was made and served, and amendments were proposed by plaintiff. Before the hearing could be had on such case, the plaintiff threatened to docket the judgment which had been entered on the final hearing at Special Term, and issue execution. The demurrants then moved, at Special Term, before Mr. Justice Slosson, for an order staying all proceedings on the part of the plaintiff, until the decision by the Court of Appeals of the appeal from the decision of the General Term. That motion was denied, and an order to that effect entered. From that order the demurrants appealed, and on the latter appeal this action now comes before the General Term.

      S. Sanxay, for appellants.

      W. W. Northrup, for respondent.
   By the Court. Bosworth, J.

If the defendants have appealed to the Court of Appeals, from a decision from which an appeal can be taken to that court, and given security which the statute declares shall operate as a stay, no order of this court is necessary to prevent the plaintiff from proceeding further, pending that appeal. It would, perhaps, be a sufficient ground on which to dispose of this appeal, that it was premature to invoke the action of the court, to prevent a proceeding from being taken in the progress of the action, which if taken, and irregular, the court would set aside. It is not usual to obtain an order prohibiting a party from taking an irregular proceeding.

But we think the order appealed from was right on another ground. The decision of the General Term, from which an appeal has been taken to' the Court of Appeals, is an order, and not a judgment. Ho appeal to that court can be had from such an order. It is not a final order, from which an appeal lies to that court. • /

The Court of Appeals will, of course, determine that question for itself, when a motion shall be made to dismiss the appeal, or when the argument of that appeal shall be moved. But as this court is asked to stay proceedings, on the ground that an appeal has been properly taken, and the requisite security to effect a stay given, it'must judge for itself, in disposing of the motion, whether a case is made which justifies it in interfering.

The defendants insist, that the decision of the General Term, from which they have appealed, is a judgment, within the meaning of that word, as defined by the Code. We think that view is clearly erroneous.

The decision made at Special Term, overruling the demurrer put in by these defendants, was an order and not a judgment. (Code, § 349, sub. 2.) The decision by the General Term, affirming it was also an order, as defined by the Code, section 400. A judgment is “the final determination of the rights of the parties in the action,” section 245.

The decision on the demurrer was interlocutory. It determined the plaintiff’s right to recover something, or to have some relief, and that the defendants were proper parties, but nothing as to the precise nature or extent of the relief to be granted. The opinion given may have covered more ground. But the order entered determined only that. The nature and extent of the relief to be granted could only be determined by the court at Special Term, on notice to the adverse party, and on proof of such facts as might be necessary to enable the court' to give a proper judgment. (§ 269, and § 246, sub. 2.) The determination thus made, specifying the whole relief to be granted, and all questions involved in the action, and nothing less than that is a judgment, as defined by section 245 of the Code. It is only from the judgment of the General Term, affirming that determination, or from a General Term judgment absolutely disposing of the merits of the action, and of all questions involved in it, that an appeal can be taken to the Court of Appeals. (§ 11, subs. 1 and 2; Paddock v. Springfield Fire and Marine Ins. Co., 2 Kern. 591; Beebe and wife v. . Griffing, 2 Seld. 465; Swarthout v. Curtis, 4 Coms. 415.)

Upon an appeal to the Court of Appeals, the clerk of the court below is required to transmit to the appellate court a certified copy of the judgment roll. (§ 328.) This cannot be done until there is a judgment declaring the precise relief to which the plaintiff is entitled, and a judgment roll has been filed. By rule 2d of the Court of Appeals, unless the appellant cause this return to be made and filed within twenty days after perfecting his appeal, the respondent, on filing an affidavit, stating when the appeal was perfected, and a certificate of the clerk that no return has been filed, may enter an order dismissing the appeal with costs. It is the policy of the Code to allow but one appeal in the same action to the Court of Appeals, unless a new trial shall be ordered by the latter Court after a final judgment has been rendered.

The affidavits, on which the order appealed from was made, show that, on the application to the court for the relief demanded by the complaint, Townsend and Johnson appeared and were heard. That since judgment was pronounced on that application, the defendants obtained leave to make a case, and a stay of all proceedings on the part of the plaintiff, except settling, entering, and perfecting the judgment. That the defendants have since served a case, to which amendments were proposed by the plaintiff.

Instead of its appearing that there are no questions in the case which can be further litigated, except the question, whether the demurrers were well taken, it distinctly appears that questions have been raised in the proceedings subsequent to the order of affirmance by the General Term, that the defendants have a right to be heard in respect to these questions,-.and that they have initiated proceedings to obtain a further consideration of them, and that such proceedings have not been abandoned. We are clearly of opinion that the defendants are not in a condition to prosecute the appeal they have taken to the Court of Appeals.

There is, therefore, no propriety in interfering to stay the plaintiff’s proceedings in consequence of such appeal, and the order appealed from must be affirmed, with $10 costs.


author: Boswobth, J.,

text:
    Davis v. Duffie, et al.
    The plaintiff had formerly brought an action, in this court, for legal relief against some of the defendants in this action. His complaint was dismissed with costs, but without prejudice to an action for equitable relief.
    Without having paid the costs of the former action he brought this one to obtain equitable relief.

      Held, that the court would not stay the proceedings in this action, as a matter of course, until the costs of the former one were paid.
    At Special Term,
    October, 1856.
   Boswobth, J.,

held as above stated. Under the former practice a court of law was alone competent to grant the relief sought in the action first brought. A court of equity would not stay the proceedings in a suit brought in it, until the costs of a previous action at law, in which the plaintiff was defeated, were paid, unless the second suit appeared to be vexatious. A court of law was governed by the same rule as to staying proceedings, until the costs of a former suit in chancery were paid. Unless the two suits had been in the same court, or in courts of the same nature, and proceeding on the same principle and in the same mode, the proceedings in the second action would not be staid until the costs of the former one were paid, (2 J. Ch. R. 461; 19 J. R. 196; 7 Paige, 53.) Perkins v. Hinman, (19 J. R. 237,) was a case in which both actions were in courts of law, although not in the same court. The motion, by the defendants, to stay proceedings in this action, until the costs of the first action are paid, must be denied. (S. C. 3 Abb. 263.)


text:
    Vanderbilt, and others, v. Garrison.
    Certain stockholders in a corporation brought an action to recover from a person, employed by the corporation as its agent, moneys received by him in the course of such agency.

      Held, on demurrer to the complaint, that it was bad, for want of an averment, that the corporation, by its officers, had refused to bring an action.
    At Special Term,
    October, 1856.
    The defendant demurred to the complaint specifying as grounds: 1st. That the plaintiffs had not a right to maintain the action. 2d. That the complaint did not state facts sufficient to constitute a cause of action,

      F. B. Cutting, for demurrant.

      H. F. Clark, and M. Rapallo, contra.
   Bosworth, J.,

sustained the demurrer, on the grounds above stated. (S. C. in 3d Abb. 361.)


author: By the. Court. Bosworth, J.

text:
    Van Valen v. Lapham.
    When a defendant sets up, as a counter-claim, a note made by the plaintiff, payable to a third person, and endorsed to the defendant, the answer must aver such endorsement to have been made before the action was commenced.
    The fact that the answer states such note to be a “ counter-claim and cause of action existing against the plaintiffj at and before the commencement of the action,” is not enough to show that it previously belonged to the defendant. The plaintiff has a right to require the answer to be so full and precise, that he may know whether the defence is to involve a disputed question of fact, or to depend solely on a question of law.
    Before all the Justices,
    October 18, 1856.
    This action comes before the court on an appeal from an order directing the defendant to amend the part of his answer which sets up a counter-claim, so as to make it more definite and certain, by stating, when the note made by the plaintiff, and which the defendant alleges has been endorsed to him, was transferred. The note, by its terms, is payable to a third person, and was due at the time this action was commenced. The answer, although it states the note has been endorsed to the defendant, and that he owns it, does not state when it was endorsed, nor that it was, before the suit was brought.
    The defendant insists that the order'is wrong, on two grounds. 1st. If it is necessary that a note made by plaintiff, and purchased by defendant, should have belonged to defendant when this action was commenced, in order to constitute it a counter-claim, that fact is sufficiently alleged, as the answer states it to be a “counter-claim and cause of action existing against the plaintiff at and before the commencement of this action.” 2d. That it is not essential that the defendant owned the note at the time this action was commenced, that it is enough that it existed and was then due, and that it was transferred to the defendant before the time to answer expired, and belonged to him when the answer was put in. .

      Seeley & Cheeney, for plaintiff.

      H. S. Lincoln, for defendant.
   By the. Court. Bosworth, J.

The order appealed from is not erroneous.. A defendant must state, in his answer, the facts constituting his counter-claim, so that the court can determine, from the facts stated, whether one exists. If the answer is so amended as to aver that the note was transferred to the defendant before this action was commenced, no question can arise on the pleadings. If' the actual truth requires an averment, that it was transferred after suit brought, then, after the answer has been amended so as to thus allege, the question can be determined by demurrer, or motion for judgment on account of the frivolousness of the answer, whether a defendant can defeat a recovery, and subject a plaintiff to the costs of the action, by purchasing a demand against him after the defendant has been sued, and setting it up .as a counter-claim. Either party has a right to be apprised, by a pleading, of the precise facts on which his adversary founds bis cause of action, and to have them so fully pleaded that there may be no uncertainty, whether the merits are to involve a disputed question of fact, or to depend solely on a question of law. By requiring such certainty, the issues to be tried are diminished in number, and the end of a litigation may often be reached much sooner, and at much less expense to both parties.

Order affirmed.

Note.—The defendant subsequently amended his answer, and stated the transfer of the note to him to have been subsequent to the commencement of bills action. The plaintiff did not reply to the answer, but noticed the action for trial. It was tried before Bosworth, J., without a jury, who gave judgment for the plaintiff, and rejected the counter-claim, because the note held by the defendant was not transferred to him until this action was commenced. The reasons for his judgment are reported in 13th How. Pr. B. 240.


author: By the Court. Oakley, Ch. J.

text:
    Stilwell and Montross v. Staples.
    A plaintiff who sues in a court of record, in an action arising on contract, and for the recovery of money only, and proves contested demands, which, with those established by the defendant, exceed $400 in amount, is entitled to costs as a matter of course, if he recovers any sum whatever. A justice of the peace has no jurisdiction of such an action, within the meaning of sub. 3 of section 304 of the Code.
    Demands contested by the pleadings, are “proved,” within the meaning of that word, as used in section 54, sub. 3, if admitted at the trial The admission at the trial dispenses with other evidence, and is itself the proof, on which the justice acts.
    A plaintiff is not required to commence an action in a justice’s court, and prove demands, which, with those proved by the defendant, shall exceed $400, and then be dismissed, as a necessary preliminary to suing in a court of record. It is enough to entitle him to costs, that the facts, as proved in a court of record, establish it to be one, of which a justice of the peace, by § 54, has no jurisdiction.
    Before all the Justices, except Hoffman, J.,
    October 11, 1856.
    This action was brought to recover the sum of $657.76 and interest, for manufacturing articles of clothing, and for materials and trimmings furnished. The answer denied that the labor and materials were worth so much, and sets up as a counter-claim, that defendant delivered to plaintiffs, to be manufactured into clothing, goods of the value of $3,000, which the plaintiffs agreed to manufacture, and to insure against loss and damage by fire; that a part of them, of the value of $855, was destroyed by firé; that they were, in fact, at the time of loss, so insured, and that the plaintiffs, before this action was brought, had received money arising from such insurance more than sufficient to satisfy their claim, and prayed that sufficient of such moneys be applied to satisfy their claim, and that the defendant have judgment for the balance. On the trial, plaintiffs’ claim was admitted to be, including interest, $832.97. The amount of the defendant’s claim was, by consent, to be ascertained by the court, subject to the opinion of the court at General Term, whether, upon the facts proved, the defendant was legally entitled to be credited with any part of the insurance moneys realized by the plaintiffs from the policy in force, at the time of the loss. The court decided that the defendant was legally entitled to $831.82 of such moneys, being enough to satisfy the plaintiffs’ claim, less $1.15, and for that sum the plaintiffs had judgment. Each party claimed the costs of the action as a matter of right, and that point the court had now decided. A reply was put in to so much of the answer as set up a counterclaim.
   By the Court. Oakley, Ch. J.

The defendant insists, that this being an action for the recovery of money, the plaintiffs cannot recover costs, for the reason that they have recovered less than $50, and that, as they are not entitled to costs, he is entitled to them as a matter of course, under section 305 of the Code.

The plaintiffs insist, that this is an action of which, according to section 54, a court of a justice of the peace has no jurisdiction, and therefore their right to costs is absolute.

Section 304 of the Code declares, that “ costs shall be allowed, __ of course, to the plaintiff upon a recovery, in the following cases— “ In an action of which, according to section 54, a court of a justice of the peace has no jurisdiction.”—Sub 3.

Section 54, reads thus: “ But no justice of the peace shall have cognizance of a civil action,” in certain cases which it enumerates. Its 3d subdivision is in these words: “ nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars.”

The claim of the plaintiffs, the amount of which was controverted by the answer, as established at the trial, of itself exceeded $400. This was extinguished, except the small sum which the plaintiffs recovered, by claims in favor of the defendant, which he proved at the trial. Although the amount of the plaintiffs’ claims was admitted at the trial, yet such admission was as much proof of it, within the meaning of the statute, as if it had been established by witnesses in open court. The existence of the claim on the part of the plaintiffs, to the amount demanded, was contested by the pleadings, and that of the defendant was wholly denied. We think it quite clear that section 54 prohibits a justice of the peace from taking cognizance of such an action. Section 304, sub. 3, is explicit, that costs shall be allowed to a plaintiff, in such a case, as a matter of course, if he recovers any amount. A justice of the peace could not investigate the claim of the defendant, and on proof of it to his satisfaction to $831.82, in amount, allow it as proved, and give a valid judgment in favor of the plaintiffs for the difference between the two claims. A plaintiff is not required to commence an action in a justice's court, and prove his accounts to an amount exceeding $400, including those proved by the defendant, and be dismissed from that court in consequence, as a necessary preliminary to commencing an action " in a court of record. It is enough to entitle him to costs, that the facts of his case, as proved in a court of record, establish it to be one, of which a justice of the peace, by section 54, has no jurisdiction. That section, by declaring that a justice shall not take cognizance of an action like this, when the facts are such as have been proved in this case, nor of an action of slander, or assault and battery, specifies them as cases of which he has no jurisdiction, within the meaning of sub-division 3, of section 304.

Under any other construction of the Code, a plaintiff, having any amount less than $50 due to him, would be remediless, if the accounts of both parties exceeded $400. If he stated his whole cause of action, and claimed damages for over $100, a justice of the peace would have no jurisdiction, because section 53 is express, that he shall only have jurisdiction when the sum claimed does not exceed $100. If he claimed just $100, and took judgment for that sum, his own account would be merged in the judgment and extinguished, and the defendant might then bring a separate action and recover Ms whole claim. The neglect of a defendant, in a justice’s court, to set off his demands against the plaintiff, is no bar to an action to recover them, when they amount to $100 more than the judgment which the plaintiff shall have recovered. (2 R. S. 4th ed. 236, § 56.) [58.]

And, in a justice’s court, “if upon the trial of a cause, it shall appear that the-amount of the plaintiff’s claim together with the demands set off by the defendant, according to the preceding provisions,” (the provisions of the statute in relation to set-offs,) “ exceed four hundred dollars, judgment of discontinuance shall be rendered against the plaintiff, with costs.” (Id. §52.) [Sec. 54.] We think it obvious that these statutes expressly prohibit a justice of the peace from passing judgment between parties, upon demands of each against the other, arising upon contract, and amounting together to over $400, when such demands are con tested. That, in such a case, a plaintiff who sues in a court of record, and proves contested demands, which, with those established by Ms adversary, exceed $400 in amount, is-entitled to costs, as a matter of course, if he recovers any sum whatever.

In this view of the case, the plaintiffs are entitled to the costs of the action, and judgment will be entered accordingly.

StilweU & Swain, for plaintiffs.

G» Bainbridge Smith, for defendant.


text:
    Jennings v. Asten.
    The verdict of a jury on the execution of a writ of inquiry by the sheriff of the city and county of New York, to assess a plaintiff’s damages, on defendant's failure to answer, will not be set aside merely because the persons summoned as jurors were not on the list of jurors selected by the commissioner of jurors, no objection having been made on executing the writ, and it not appearing that the persons were not fit and competent jurors.
    Nor because the complaint was read in evidence to the jury, it not appearing that it was offered for any specific purpose, for which it could not properly be read.
    Nor on account of the excessiveness of damages, when the evidence on which the verdict was rendered is not disclosed by the affidavits on which the motion was made. •
    At Special Term,
    November 1, 1856.
    This action .was brought to recover damages for ejecting plaintiff’s servants from his jewelry store, closing it up, and posting a bill on it, containing the words “to let.” Defendant failed to answer, and the court ordered that a writ of inquiry issue to the sheriff to assess the- plaintiff’s damages. The writ was executed. The defendant appeared and examined witnesses. He now moves to set aside the inquest, because:—
    1st. The; sheriff did. not summon, as jurors, persons on .the list prepared by the commissioner of jurors.
    2d. The sheriff, against the objection of defendant, allowed the complaint to be read as evidence to the jury. The opposing affidavit stated, that defendant objected on the ground “that the complaint was matter of record, and belonged to the sheriff or under sheriff, who conducted, the proceedings, to be considered by him exclusively. That .said under sheriff stated the practice to be, for the plaintiff to read the complaint, and the jury to give such weight to it as they thought proper;. that defendant's counsel excepted to the decision allowing it to be read.
    3d. On the ground of excessive damages.

      George W. Stevens, for defendant.

      S. E. Church, contra.
   Bosworth, J.

It is not alleged that the persons serving as jurors, were not in fact competent jurors, nor is any objection to them suggested, except that they were not of the number who had been selected by the commissioner of jurors to do jury duty. Ho objection was made to the regularity of the sheriff’s proceedings in summoning the jury, or the qualification or fitness of either of the jurors, on executing the writ. There is no provision in chap. 495 of the laws of 1847, (p. 734,) requiring the sheriff of the city and county of Hew York, on executing writs of inquiry, to summon only such persons as the commissioner of jurors may have selected to serve.

Hor does that act provide that the commissioner of jurors, or any other officer, on the requisition of the sheriff or otherwise, may designate the persons whom the sheriff may summon as jurors in such cases. I think there is nothing in the objection first taken, as it is presented on this motion.

The jury were to assess the damages which the plaintiff had sustained, by reason of the facts mentioned in the complaint constituting the cause of action. It was proper to read the complaint, in order that they might know what those facts were. By failing to answer the complaint, the material allegations contained in it were, for the purposes of the action, admitted to be true. (Code, § 168.) The objection taken was, that it should not be read as evidence at all. This objection is not tenable. If the objection had been taken that it could not be read as evidence of the amount of damages the plaintiff was entitled to recover, and the right to read it for that purpose had been insisted on, and it had been allowed to be read expressly for that purpose, a different question would be presented.

The objection alleged to have been taken was too broad to enable the court to say the decision was erroneous. Heither can the court say the damages were excessive. Testimony to that point was given on both sides. What that testimony was is not disclosed by the affidavits. The court, therefore, cannot see that the damages are excessive. The complaint claimed damages to the amount of $1000, and the jury assessed them at $450. This mo tion is addressed to the equitable consideration of the court. The evidence on which the jury acted not being before the court, it is unable to say that any injustice has resulted to the defendant from the proceedings.

The motion is, therefore, denied.


author: By the Court.—Hoffman, J.

text:
    Charles Graham v. Frederick W. Camman.
    Where a demurrer is interposed to a complaint, under the 6th sub. of section 144 of the Code, the true rule is, that such a demurrer applies only to such defects as would render the count bad on general demurrer at law, or bad for want of equity in chancery.
    The complaint, therefore, to be overthrown by such demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever.
    Where the demurrer admits facts enough to constitute a cause of action, the complaint will be sustained; and if the defendant requires a greater degree of certainty than is found in the complaint, he must seek his relief by a motion under the Code, that the pleading be made more definite and certain.
    At General Term,
    November, 1856.
    Before all the Judges.
    This action comes before the court, on an appeal from an order of the Special Term, overruling a demurrer to the complaint.
    The complaint was as follows:—
    That the defendant, on the 10th of May, 1855, became, and was indebted to the plaintiff in the sum of $446.25, upon a balance of an account stated, and then due and owing to this plaintiff; and which the said defendant then and there agreed and promised to pay, but that he has neglected and refused to pay the same, except the sum of $150 paid by him to the plaintiff on the 22d of August, 1855, on account of the aforesaid balance of indebtedness. And further, that the defendant remains indebted to the plaintiff in the sum of $296.25, with interest, &e. For that amount, and costs, judgment is demanded.
    A general demurrer was served, stating that the complaint did not state facts sufficient to constitute a cause of action.
    The demurrer was overruled, and from that order the defendants appealed.

      Mr. Booth, for plaintiff.

      Mr. Robinson, for defendant.
   By the Court.—Hoffman, J.

This case cannot be well distinguished from that of Cudlip v. Whipple in this court, (1 Abbott’s Rep. 106 ; 4 Duer, 610.) The difference is only in the omission to state the nature of the items of the account, viz., for money paid, laid out, and expended. It was not alleged that the account had been stated. That case was decided upon in Allen v. Patterson, (3 Seld; 496,) holding that a complaint in an. action-for the recovery' of-goods sold, substantially in the old form of a declaration in indebitatus assumpsit, was good under the Code.'

The old form of a declaration on amaceount’ stated is found in 2 Chitty’s Pleading, 90.; It was— . .

“That, whereas-the defendant- had, on, &e., at,- &c., accounted with the plaintiff of and concerning divers sums of money, from the defendant to the plaintiff before that time due and owing, and then in arrear, and unpaid ;■ and upon .such accounting,, .the said defendant was then " and there found in arrear and Indebted to -the plaintiff in the sum of:--—, and thereupon, being so indebted, he promised to pay,” &c.

It is obvious that the 6th subdivision of the. 144th section of the Code, as, to demurrers, has been framed from the form of the general demurrer at common law, or in equity. Such must-have gone to the whole cause of action, and be for, matter.of substance, not of form. (See Chitty on Pleading, 664, and cases.) ¡ \ ■

In Richards v. Beairs, (28 Eng. L. & Eq. Rep, 157,) the question was under the 50th section of the common law procedure act, which is substantially the same as the 6th-subdivision referred to. The court say, that the question was, whether the declaration would have been good upon general demurrer before the act, and it was held bad upon that ground. Compton, J., said, “ If we are to hold pleadings good where the -parties .do not choose to say what they mean, we should be getting into the region of ambiguity and uncertainty, which would be a worse , evil than that which the statute intended to remedy.”

The rule was well stated in Richards v. Edich, (17. Barb. 260.) A demurrer under the 6th subdivision applies only to such defects as would render the count bad on general demurrer at law, or bad for want of equity in chancery. The complaint, therefore, to be overthrown by such a demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. Where the demurrer admits facts enough to constitute a cause of action, the complaint will be sustained; and if the defendant requires a greater degree of certainty than is found in the complaint, he must seek his relief by a motion under the Code, that the pleading be made more certain and definite.

We consider the rule, as thus stated, to be a true and beneficial one; and it is so to be regarded in this court.

The order of the Special Term, overruling the demurrer, must be affirmed, with costs.

V


author: By the Court. Hoffman, J.

text:
    William Jellinghaus v. The New York Insurance Company.
    A marine policy contained the following clause: “ In case of a partial loss by sea, or damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of a portion only of the contents of the packages so damaged, and not otherwise.” Upon a loss occurring, the agent of the company instructed an auctioneer to sell the goods, which was not objected to by the assured. That agent was empowered to act in the separation, and in giving such consent to employ an auctioneer. Upon the failure of the latter,

      Held, that the loss, by reason of the failure of a mutual agent, should not fall on the company.

      Held, that the inquiry was, purely, whether the company had assumed possession and control of the goods.

      Held, also, that the agent, aforesaid, was not authorized, by reason of his authority to concur in measures for the separation, to take such control.

      Held, that express authority, or continued recognized acts of the same nature, were necessary.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    Motion by plaintiff for judgment upon a verdict, a case being made, with liberty to turn the same into a bill of exceptions.

      The following facts were admitted:
    That on the 20th of October, 1847, an open policy of insurance for $100,000 was made by the defendants with Spies, Christ & Co., of the city of Hew York, merchants, on account of whom it might concern, on merchandise on board vessel or vessels, from Hamburg, Antwerp, Bremen, or Havre.
    That in or about July, 1848, forty-six cases of hardware, covered by said policy, and belonging to the plaintiff, were shipped from Bremen to Hew York, oh board the ship Charlotte Reed.
    That the said forty-six cases of hardware, on the arrival of the said ship, were delivered to the plaintiff’s agent in Hew York, and that thirty-five of the said cases were damaged by sea-water.
    That Spies, Christ & Co., assigned to the plaintiff their right to claim under the policy for such damage.
    That the amount of damage on eight of the said thirty-five cases was agreed upon between the plaintiff’s agent and the defendants, at the sum of $88.84.
    ■ That the invoice value of the remaining twenty-seven cases, was $2442.67, and that they were insured to that amount under the policy.
    That the net market value of the said twenty-seven cases, if the same had not been damaged, was $4969.16.
    That the said twenty-seven cases were sold at auction, in the city of Hew York, on the 21st of September, 1848, and that the proceeds of such sale amounted to $2357.14.
    That the auctioneer’s cha,rges and commissions for selling the said twenty-seven cases, amounted to $117.86.
    That the expense of cleaning the hardware in the twenty-seven cases, and putting the same in good order for the sale at auction, was $8.98, and that the auctioneer failed to pay over the proceeds of the sale to either party.
    The plaintiff claimed that the defendants were liable to him for the proceeds of the sale at auction.
    The policy contained the following provision: “In case of partial loss by sea, damage to dry goods, cutlery, or other hardware, the. loss shall be ascertained by a separation and sale of a portion only of the contents of the packages so damaged, and not otherwise.”
    Mr. Satterthwaite was the secretary of the company, and the evidence was sufficient to show, that he acted as authorized agent of the company in making the separation so provided for. The greater part of the testimony was directed to the establishing of the fact that he did act, and made declarations equivalent to the taking the entire control of the goods, and assumed the ownership of them.
    The plaintiff having rested, the defendants’ counsel moved that the complaint be dismissed, or for a nonsuit, which motion the court denied, and the counsel for the defendants excepted.
    The evidence being closed, his honor the Chief-Justice, who tried the cause, charged the jury as follows:
    That the sale in this case was made in compliance with the special provision in the policy, that in case of partial loss by sea or damage to hardware, the loss should be ascertained by a separation and sale of the portion damaged.
    That both parties were interested in the sale; plaintiff, as owner of the goods, and defendants, to reduce the amount to be paid by them under the policy.
    That from the nature and object of the sale, the auctioneer was necessarily the agent of both parties, and neither party guaranteed his fidelity or solvency to the other.
    That the auctioneer’s commissions and other charges incurred for the sale were paid by the defendants, because in all such cases the expenses of the sale were, by law, to be borne by the underwriters.
    That there was no abandonment of the goods to the defendants, and there could have been none in this case.
    • That any acts of Mr. Satterthwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company.
    That the only question for the jury was, whether the defendants had become the owners of the goods, and were such owners, at the time of the sale. If they were such owners, the jury should find for the plaintiffs; if not, for the defendants.
    The counsel for the defendants excepted to that part of the Judge’s charge which stated that any acts of Mr. Satterthwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company.
    The jury found a verdict for the plaintiff for $1669.22.

      B. D. SilUman, for plaintiff.

      Robert Mnmet, for defendants.
   By the Court. Hoffman, J.

The case arises in this' form, 1st. upon one exception taken to the admission of evidence; 2d. upon a refusal to nonsuit the plaintiff; 3d. upon one exception taken to the charge of the Judge.

1st. The ruling of the Judge was excepted to, for allowing evidence that the company had agreed that the receipts given by Meynen, through his clerk, should be without prejudice to the claim upon the company for the proceeds of the sale at auction.

The defendants do not include this exception in their present points, and we apprehend the objection was not entitled to any weight.

2d. It is urged that the motion for a nonsuit ought to have been granted. This motion was made after the evidence, on both sides, had closed. When the case was heretofore before the General Term, the decision was, “that, irrespective of any agreement to the contrary, the appointment of an auctioneer, to sell the property in question, under the provisions of the policy, must be deemed, in law, to be the joint act of the parties; and, of course, the defendants would not be responsible for his failure. That the plaintrSj therefore, could not succeed in the action, without showing that the defendants took the goods as their own, and sold them as their own, and that the evidence fell far short of making out that case.” A new trial was thereupon granted.

This, then, was the precise question submitted on the present trial, and by the Judge who delivered the opinion of the court upon the former occasion. It appears to us that the law of the case, so far, was then, and in that manner, settled. If the acts of Satterthwaite bound the company, there was evidence enough for the jury to find as they did; at least, their verdict was not so against evidence as to require that the case should be sent back to them.

The case does really, then, depend upon the determination of the next question, viz.: that as to the powers of the vice-president.

3d. The Chief-Justice charged, “ that any acts of Mr. Sattertliwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company.” To this part of the charge an exception was taken. We have not, in this case, the charter before us, nor any thing which tends to define the powers given by it, or by any by-law, to the vice-president. Nor have we any proof of an exercise of power, so as to raise the presumption of its being conferred, or of any ratification, or adoption of acts of a similar nature.

We have the fact before us, that the vice-president acted in the matter (sometimes with the secretary) on behalf of the company; and it was not questioned, on the former trial, nor has it been questioned here, that the office and duty of effecting the separation and sale of the portion damaged partially, was properly within the scope of his power, so far as the company had any thing to do with it. And we may observe, that the law of the case seems to be, that as both parties were interested, the auctioneer was the agent of both parties in making the sale. But the question is very different, whether such a power involves the right of actually assuming the ownership of the goods, and binding the company to a responsibility for them, and for the default of an auctioneer.

In Beatty v. The Marine Insurance Company, (2 John. Rep. 109,) the charter was in proof, and it was shown that the act in question,(acceptance of an abandonment,) could only be done with the consent of at least four directors, with the president or two assistants, or a plurality of them. The assent of the president and assistants was held insufficient.

Norton v. The National Bank, (1 Hill, 572,) only recognized the general rule, that the acts of a director or other officer of a corporation, unless official or in respect to his agency, are no more operative as against the institution than the acts of any ordinary corporator, and these are no more so than the acts of a stranger.

Hodges v. The City of Buffalo, (2 Denio, 110,) also cited, was a case of the want of power of the corporation itself to do the act in question.

The Life and Fire Insurance Company v. The Mechanics' Fire Insurance Company, (7 Wendell, 31,) involved the proposition that a president of a company, by virtue of his office only, is not empowered to borrow money on its account; some authority to do so must be proven.

In Hanbury v. The Alleghany Mutual Insurance Company, (4 Barry Penn. Rep. 187,) there was the following instrument: “This certifies that D. H. Eddy, of Warren County, Pa., is appointed an agent of the Alleghany County Mutual Insurance Company, and is authorized to receive applications for insurance, and the premium thereon, on which applications a policy will issue, or the money be immediately returned. L. Wilmouth, president.”

After the plaintiff had closed, the defendant proposed to prove that at the time the agent requested him to become a member, the defendant was assured that the company was not insuring in the city of Pittsburg or other large cities; and, that the defendant said, “ If such is the case I will become insured, and a member of said company,” and gave his deposit note accordingly.

This evidence was objected to, and overruled by the court, and defendant excepted. He then further offered to prove that, at the time the president appointed Mr. Eddy the agent of the company, he said they would not, or did not, insure in the city of Pitts-burg; that the company was intended for the county, and not for the city of Pittsburg, and that the agent so represented to the defendant, at the time of giving the note in question, and becoming a member of the company, and it appearing by the evidence that the company did, at the time and afterwards, insure in the city of Pittsburg. This offer the court also rejected, and sealed a bill of exceptions. The court above was of opinion that the Judge was right in rejecting the evidence offered.

In our judgment the plaintiff has failed in establishing the fact that Satterthwaite had sufficient authority to bind the company by assuming the ownership of the goods in question.

There must be a new trial.


author: Hoffman, J. Slosson, J.

text:
    Louis Spitzer v. The St. Mark’s Insurance Company.
    Goods were insured in a store, No. 21 Avenue D, and during the running of the policy were removed to another store, known as No. 3Í1 Grand-street. This removal took place on the 1st of February, and notice thereof was given to the company on the 1st of March.
    By one of the clauses of the policy it was provided as follows: “ This insurance, (the risk not being changedfimaybe continued for such further time as shall be agreed upon, provided the premium thereof is paid, and endorsed on this policy, or a receipt given for the same.”-
    By the charter of the company it was provided, “ that the president, or other person appointed by the bear’d of directors for that purpose, shall be authorized in the name and in behalf of the company, to make contracts of insurance with any person or persons against loss or damage upon any property on which this company may lawfully make insurance. The policies issued pursuant to such contract of insurance shall be signed by the president, and countersigned by the secretary of the company; or the same may be signed and countersigned by such other person or persons as a majority of the directors may appoint for that purpose. Such policies shall be binding and obligatory upon the company in like manner and force as if made under the seal of the company.”
    A loss by fire occurred on the 1st of July, 1854.
    Much testimony was taken as to the acts and declarations of officers of the company, tending to show acquiescence in the change of the risks, on which the jury were instructed to pass.
    On exceptions to the charge of the Judge, held—
    That, under the charter and general act, no insurance could be binding unless it was in writing, nor unless it was signed by the president and secretary, or other persons designated by the directors.

      Held, that the effect of the removal of the goods was to put an end entirely to the policy. It did not cover the goods afterwards, but was as. void and inoperative as if never made.

      Held, therefore, that to revive the policy was the same as to make one, and could only be done by a written instrument, executed in the same manner as an original instrument must be.
    (Before Hoffman, Woodruff and Slosson, JJ.)
    Heard, April;
    decided, June, 1856.
    Motioh for judgment upon a verdict in favor of the plaintiff, taken under direction of the court, upon a case to be made, to be heard in the first instance at General Term.
    On the 26th of October, 1853, the defendants, an incorporated fire insurance company, executed a policy to the plaintiff’s assignor, Julius Englemans, by which they insured him in the sum of $800, “ against all such loss and damage as should happen by fire, or in consequence thereof, to his merchandise or store fixtures, seven hundred and sixty dollars, of the said sum of $800, to be on his said merchandise, and the remaining forty dollars on his store fixtures, contained in the store known as Number 21 Avenue D, in the city of New York, during the term of one year thereafter, viz.: from the 26th day of October, 1853, to the 26th day of October, 1854, the said loss to be estimated according to the true and actual cash value of the property at the time the same (the loss) shall happen.”
    The only terms of the policy, or of the conditions annexed, which were noticed by counsel, or are deemed important upon the questions raised, are the following: “This insurance, (the risk not being changed,) may be continued for such further term as shall be agreed upon, provided the premium therefor is paid, and endorsed on this policy, or a receipt given for the same.” And, by the first of the conditions, “if, during the insurance, the risk be increased, by the erection of buildings, or by the use or occupation of neighboring premises, or otherwise, or if for any other cause the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured, or his representative, of their intention so to do; in which case the company will refund a rateable proportion of the premium.”
    On the 1st of February, 1854, all the goods, merchandise, and fixtures insured, were removed Róm the store Ho. 21 Avenue D, to a certain other store, known as Ho. 871 Grand-street. On or about the 1st of March, 1854, notice of this removal was given to the defendants, and the transactions between them, and the alleged parol declarations of their officers, hereafter stated, constituted, it is insisted, a binding agreement, to continue the policy in operation. On the 1st of July, 1854, a fire occurred at the store in Grand-street, by which the merchandise and fixtures were destroyed, and damaged beyond the amount insured.
    By the charter of the company, (§ 10,) “the president, or other person appointed by the board of directors for that purpose, shall be authorized in the name and behalf of the company, to make contracts of insurance with any person or persons. The policies issued pursuant to such contracts of insurance shall be signed by the president, and countersigned by the secretary of the company, or the same may be signed and countersigned by such other person or persons as a majority of the directors may appoint and designate for that purpose; such policies shall be binding and obligatory upon the company, in like manner and force as if made under the seal of the company.”
    It is needless to state the testimony tending to prove an assent of the company to the continuance or transfer of the risk to the goods in the new store to which they were removed. The question whether the verdict was warranted by the proof, if the directions of the Judge were right, is not before us. The questions arise upon his charge, and the refusal to charge as he was requested.
    The first and very important point arises in this manner: the Judge was requested to charge that the company could not be bound for the insurance of the property after a change of location, unless by some acknowledgment in writing; and that the officers of the company could not bind it for a loss, after a change of risk by removal of the goods, except by the execution and delivery in writing of a consent to continue the risk after the change.
    The court charged that the removal of the goods without the consent of the defendants avoided the policy, unless a subsequent assent to transfer the risk had been given. This assent might be verbal or written, and it might also be implied. Thus, if the company, by its silence when asked if they would assent to a transfer, leave the party under an impression that they will, retaining the policy beyond a reasonable time, an assent may be fairly inferred, more especially if any of their authorized agents should tell the party that the policy will be sent. The company, if they did not mean to assent, should promptly say so, when apprised of the application. The jury were to consider all the facts proved on either side, and decide whether an assent could be inferred.
    The Judge then made some observations on the testimony, and proceeded thus: “If they were satisfied that the policy was left with the defendants in March, for the purpose alleged, and that a surveyor had been sent there; if they believed the evidence on the part of the plaintiff, it would amount to an acquiescence by the company in the change of the risk; on the other hand, if they believed that when the policy was left with them, nothing was said by the plaintiff’s assignor with reference to a transfer of risk, which might enable the defendants to know how to act, or what was desired, or that a surveyor had never been Sent, then they should find for the defendants.” .
    The counsel for -the defendants excepted to the charge of the court in every respect wherein it differed from the propositions submitted by him, or where it omitted to charge as requested in such propositions.

      The jury found for the plaintiff, subject to the opinion of the court, as before stated.

      W. G. Noyes, for the plaintiff.

      J. Sutherland, for the defendants.
   Hoffman, J.

The material question in the case is, whether any agreement for a transfer of the risk to the goods of the store in Grand-street, other than an agreement in writing, could be binding upon the company.

It must be conceded that there could not be any valid original agreement to insure, by parol, to bind this company, however definite and however well proven. The case in the Court of Appeals of The Baptist Church v. The Brooklyn Insurance Co. settles definitely that a corporation authorized to make insurances in writing, cannot make them in any other manner. The opinion of Chief-Justice Marshall in Head v. The Providence Insurance Co., (2 Cranch, 127,) is cited and relied upon. “ The act of incorporation is to the corporation an enabling act. It gives them all the powers they possess. It enables them to contract, and when it prescribes to them a mode of contracting they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.”

Mr. Justice Gardiner quotes the charter of the Brooklyn company as providing, “ that policies of insurance and other contracts founded thereon, shall be in writing, signed by the president, and countersigned by the secretary.” It at first struck me that the charter of the present company was not so explicit or decisive as to the necessity of a writing as that of the Brooklyn company. The Acts of Incorporation are not referred to in the opinion; but we find them in the laws of 1824, ch. 166, in the laws of 1829, ch. 131, and in those of 1844, ch. 133. The provisions in the two last acts do hot bear upon the present question.

By the 2d section of the act of 1824, the company had power to make contracts of insurance with any person against loss or damage by fire of-houses, merchandise, etc., and there was no prescription of their being in writing. By the 10th section, however, policies of insurance, and other contracts founded thereon, though not under seal, if subscribed by the president, (or, in certain cases, by another designated person,) and countersigned by the secretary, shall be binding and obligatory upon the corporation.

The present defendants were incorporated under the general act of April 10th, 1849. By the 3d section of that act, the persons proposing to associate themselves were to file a copy of the charter proposed to be adopted by them, and by the 10th section, it was made the duty of the corporators to declare in such charter (among other things) the mode and manner in which the corporate powers given under such general act are to be exercised.

Accordingly, the present defendants adopted and declared a charter, and by its 10th section they provided, “that the president, or other person appointed by the board of directors for that purpose, shall be authorized in the name, and on behalf of, the company to make contracts of insurance with any person or persons against loss or damage upon any property on which this company may lawfully make insurance. The policies issued pursuant to such contract of insurance shall be signed by the president, and countersigned by the secretary of the company, or the same may be signed and countersigned by such other person or persons as a majority of the directors may appoint for that purpose; such policies shall be binding and obligatory upon the company in like manner and force as if made under the seal of the company.”

It is deemed useful to refer also to the 11th section of the general act of April 10th, 1849, under which this company was organized. (Sess. Laws, ch. 308.)

My conclusion is, that no parol contract, and no written contract, however plainly made or adopted by directors or officers for an original policy of insurance, can be binding, unless it has received the signature of the president, secretary, or the other persons formally designated by a majority of the directors. Thus, the grave question of the possibility of enforcing a parol contract to insure will be found wholly inapplicable to the great body of the fire insurance companies of our state. See 1 Duer on Insurance, p. 61, and note 2, p. 100, and the valuable suggestions in Justice Grardiner’s opinion as to the origin of policies being in the civil and not in the common law, as bearing upon the question of the necessity of a writing.

We thus come to the consideration of the true character of the, alleged agreement between the parties as to the continuance of the responsibility of the company after the removal of the goods.

It was not denied by counsel, and does not admit of denial, that between the 1st of February and the 1st of March, 1854, the policy was totally inoperative. Had a loss then occurred, no recovery could have been had. The insurance was upon goods in the store in Avenue D. It wordd have continued in force upon any substituted goods, replacing those disposed of in trade in the same place. It would also have so continued upon the same goods, if temporarily removed and then restored. Hot being replaced or restored, the subject matter of the insurance was gone. The goods no longer existing in the place in which they were covered, there was nothing upon which the policy attached. The case is even stronger than that of Dow v. The Hope Insurance Co. in this court, (1 Hall, 172,) in which merchandise was insured outward, and then proceeds home, and it was held that the policy did not cover the same goods brought back in the vessel.

The policy, then, being inoperative, and the goods uninsured, the parol evidence is to establish that the goods were actually re-insured in their new location. In whatever form the proposition is presented, it really comes to this: goods not covered by an insurance are to be insured by means of a parol agreement made with an officer of the company.

Upon this question, the actual decision in the Baptist Church case, in the Court of Appeals, must be carefully examined. It is reported in the court below, in 18 Barbour, 69. The policy was executed on the 22d of July, 1845, insuring the church building against fire for one year. The policy was not delivered until some time after, and the premium was not paid until the 21st of February, 1846. The president of the company subsequently made an arrangement with the treasurer of the church, that the policy should be renewed from time to time, without further notice, until one party or the other should give notice of an intention to discontinue the renewal, up to which time it was agreed that the company should renew and give a certificate, the church paying the premium.

The last renewal certificate had been taken to the church after the 22d of July, 1847. The church was burned on the 10th of September, 1848. The renewal certificate which should regularly have been sent about the 22d of July, 1848, had not been sent, nor had the company called for the premium. Justice Mitchell states, as the result of the evidence, that this was an agreement that the risk should be permanent, and the policy continued until either should vacate it, not for one year only, but for several— from year to year. After this it would be a breach of faith in the company to say that the policy should not be deemed in force unless they first gave notice to that effect.

On this state of facts the Supreme Court held the company responsible, and this decision was reversed by the Court of Appeals.

Mr. Justice Gardiner’s opinion involves these important points. That it is extremely doubtful whether a verbal contract to insure can in any case be valid. The bearing of the opinion is decidedly hostile to it. That where the charter of a company prescribes that policies of insurance shall be in writing, signed and countersigned by particular officers, there can be no other mode of binding it.

That a verbal agreement between the officers and another to renew and continue a policy in force, whether made after or before the expiration, is not obligatory. I deduce that payment of the premium would make no difference. Upon the point of a distinction between a contract to make and one to renew a policy, he expresses himself thus: “It is, however, claimed that the contract in question is one to renew or continue an insurance, and is rather an agreement for a policy than a policy itself; but I am unable to see any difference in this respect between an agreement to insure, and one for continuing an agreement of that kind, which would otherwise expire by its own limitation. The new contract is founded upon the original policy which it adopts, and extends its provisions to another and distinct interval of time. It is either a policy of insurance for an indefinite period, or a contract presupposing a policy, and founded thereon, by stipulating for successive renewals. In either case the agreement must be in writing, and executed in the manner prescribed by the charter, in order to bind the corporation.”

In the case of Head v. The Providence Company, (2 Cranch, 105,) relied upon in the Court of Appeals, there was a clause in the charter, “that all policies of insurance and other instruments made and signed by the president of such company, or any other officer thereof, according to the by-laws thereof, shall be good and effectual to bind such company to the performance thereof in manner as set forth in the constitution hereinafter recited.”

The court say: “A contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner prescribed by law. The force of the. policy might indeed have been terminated by actually cancelling it, but a contract to cancel it is as solemn an act as a contract to make it, and to become the act of the company must be executed according to the forms in which they are enabled to act.”

The Judge at the trial had charged that an agreement to correct the policy in question had been fully proven, and they must find for the defendants. On writ of error the judgment was reversed, for the reasons above stated. These authorities appear to me decisive, and to settle that the company could only have been bound to pay a loss on the goods removed, by a contract in writing, signed by the president and countersigned by the secretary.

Slosson, J.

In the case of the First Baptist Church v. The Brooklyn Fire Insurance Company, (18 Barb. 69,) the Supreme Court for this district decided that a parol agreement that the policy effected by the defendants should be renewed from time to time, without further notice, until one party or the other should give notice of an intention to discontinue; in other words, a parol agreement for a continuous risk, was valid and binding on the company, notwithstanding at the time of the loss the premium for the year had not been paid, nor the certificate of renewal given. The court treated it as an agreement to continue an insurance already effected, or an agreement for a policy, and therefore good, though not in writing, while they agree that a policy itself would not be good unless in writing.

This case was carried up on appeal, and the court of last resort reversed the judgment of the Supreme Court, and held that there was no substantial distinction between an agreement to insure; (a policy,) and one for continuing an insurance which would otherwise expire by its own limitation, and that in either case the agreement must be in writing, and executed in the manner prescribed in the charter, in order to bind the corporation.

The opinion of the court, as delivered by Gardiner, Chief-Justice, is not yet reported, and I was first made acquainted with it on the argument at General Term.

The charter of the Brooklyn Insurance Company provided that policies of insurance, and other contracts founded thereon, should be in writing, signed by the president and countersigned by the secretary.

By the 10th section of the general act of 1849, (Sess. Laws, ch. 308,) providing for the incorporation of insurance companies, and under which the present defendants were organized, it is required of every company organized thereunder to “declare in their charter the mode and manner in which the corporate powers, given under and by virtue of this act, are to be exercised.”

Their charter accordingly provides, (§ 10,) that its officers therein designated, shall be authorized, in behalf of the company, to make contracts of insurance, and that the policies issued pursuant to such contracts of insurance shall be signed by the president and countersigned by the secretary.

In other words, its contracts of insurance must be in writing. It cannot be denied that the policy in the present case was applicable only to goods in the place in which they were insured, and could not be extended to the goods after their removal to Grand-street, except by express agreement of the company, and accordingly such an agreement is alleged in the complaint as the foundation of the action.

The effect of such an agreement would be, to make a new contract of insurance, the place where goods are insured being as much a part of the original contract as the stipulation of insurance itself. “A contract,” says Judge Marshall, “varying a policy, is as much an instrument as the policy itself and therefore can only be executed in the manner prescribed by law.” (Head & Amory v. The Providence Insurance Co., 2 Cranch, p. 168.)

The agreement in the present case, if held to have been proved, was by parol only, and that not express, but by implication from the silence of the officers of the company, coupled with certain acts indicating that the question of extending the policy to the goods in the new place of their deposit had been taken into consideration.

I will not stop to inquire whether these acts were done by any officers authorized to bind the company, since under the decision of the court of appeals, in the case of the Baptist church, no officer could bind the company by a contract of insurance unless in writing; but I must be permitted to say, that I think good faith required of this company that they should have frankly informed the plaintiff' of their intention not to continue the risk, if. such was the resolution to which they had come, and not have left him to repose on the belief that he whs insured, until the catastrophe had happened against which he supposed himself indemnified. It is true both the president and secretary of the company say that the application to transfer the risk was not made to them personally, and that they never consented to any transfer; but they both admit that the policy was lying in the office several months after it had been left for that purpose, and the secretary says “it was left for the purpose of having the risk transferred,” and the president says, that after the fire it was laid before the loss committee. When the policy was left, on the 1st of March, it was entered by the clerk in -a book as a case for survey, and the clerk said he would send a surveyor, when the plaintiff called again, on the 10th of April, for his policy, the clerk told him he need not call again, it would be sent to him. The plaintiff again sent for it, but did not get it. After the fire the president told him it was of no use to him.

About a week after the policy had been left at the company’s office, a person did call to survey the premises to which the goods had been removed, and was identified by the witness as the same person who had surveyed the premises in Avenue D, where the goods were originally insured, yet the president says no survey was ever made to his -knowledge—the surveyor himself was not put on the stand.

I advert to these features of the case, not as affecting the legal rights of the parties, but as showing an absence of that extreme good faith on the part of- this company, or, to say the least, a want of that prudent and careful regard for the rights and interests of the plaintiff, which in every instance ought to characterize the transactions of these corporations with their dealers.

I think the decision of the Court of Appeals referred to must be considered as conclusive on the question involved in the present case, and that no written consent to a transfer of risk having been shown, the policy ceased to have any operation, by the removal of the goods from Avenue D to Grand-street, and the defendants are therefore entitled to judgment. (Code, § 265.)

The verdict must therefore be set aside, and the complaint be dismissed with costs.