text:
    Adolph Goldschmidt et al., Appellants, v. The Mutual Life Insurance Company of New York, Respondent.
    In an action upon two policies of life insurance,the complaint alleged and the answer admitted the issuing of the policies, the death of the insured during the life of the policies, and that proofs of death were served upon defendant. By the policies the defendant was not liable for the amounts insured in case of the death of the insured by his own hands, “ whether sane or insane.” The proofs of loss were upon blanks furnished by the company, which, among other things, requested that in case of a coroner’s jury the company should be furnished with the verdict of the jury. In answer to this request there was attached to the proof what purported to be a copy of the testimony taken before a coroner and of the inquisition of the jury, to the effect that the insured came to his death hy suicide. The persons making the proof stated therein that they did not admit that there was any such inquest, verdict or evidence, and denied that the purported finding was true. An answer to or compliance with any such request was not required by either of the policies. The paper so attached to the proofs was offered in evidence hy defendant and received under objection and exception, and the court decided that thereby the burden was imposed upon plaintiffs of showing how the death was produced. Held error ; that the affirmative was by the pleadings upon defendant ; and that the proofs, taken as a whole, contained no concession which changed this burden.

      Ins. Oo. v. Newton 22 Wall. 32), distinguished.

      Goldschmidt v. M. L. Ins. Go. (33 Hun, 441), reversed.
    (Argued April 37,1886;
    decided June 1 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made at the October term, 1884, which affirmed a judgment, entered upon a verdict directed by the court. • (Reported below, 33 Hun, 441.)
    The nature of the afetion and the material facts are stated in the opinion.

      William G. Wilson for appellants.
    The death of the assured being proved on the trial, the burden was on the defendant to show that the policy was void and that no loss had accrued. (Van Valkenburgh v. Am. Popular Life Ins. Co., 16 Hun, 583; 1 Greenl. Ev., § 74 ; Piedmont and A. Life Ins. Co. v. Ewing, 2 Otto, 377; 2 Greenl. Ev., § 402; Bliss on Ins. 584, 585; 70 N. Y. 609.) The presumption is that the death was due to natural causes. (Mallory v. Trav. Ins. Co., 47 N. Y. 54; Guardian Life Ins. Co. v. Hogan, 80 Ill. 35; Continental Ins. Co. v. Delpench, 82 Penn. St. 235.)

      Robert Sewell for respondent.
    The preliminary proofs of death which were presented to the defendant by the plaintiffs were properly admitted in evidence. (Ins. Co. v. Newton, 22 Wall. 32.) The proofs were properly taken in their entirety; that is, the affidavits could not be admitted, and the record of the coroner’s inquest attached to them be excluded. (Ins. Co. v. Newton, supra; Ins. Co. v. Higginbotham, 95 U. S. 380, 390.) Ho jury could find that Edler had died from other cause than by his own hand on the evidence as it stood, and that being so, the defendant was entitled to a direction for a verdict. (Moore v. Bristol, 2 Week. Dig. 293 ; Marine Bk. v. Clements, 31 N. Y. 33, 43; McCall v. Sun Mut. Ins. Co., 66 id. 505.)
   Danforth, J.

This was an action brought by the plaintiffs, as assignees of two policies of insurance — one for $3,500, the other $1,500 — issued by the defendant upon the life of one Oscar Edler. The defense was that he came to his death by suicide, and so the defendants incurred no liability, but the answer contained an offer of judgment for $231.96, being the amount of premiums received. Upon trial of the issue the court ruled that the defense was made out, and directed a verdict for so much only as was admitted to be due. The correctness of this ruling turns upon the legal effect of answers and information given in connection with the preliminary proofs of death served by the claimants, and presents the only question suggested by the record.

The policy of $3,500 was payable by its terms “in sixty days after due notice and proof of the death” of the life insured, unless, among other things not material here, “ he shall die by his own act or hand, whether sane or insane,” in which case “the policy shall be null and void,” and the company will return the premiums paid. The character or nature of the proof of death is not specified, nor other language used in reference to it than is above given. The other policy is different. It is payable “ within sixty days after notice and the proofs hereinafter required of the death of said Oscar Edler shall have been furnished to the company at its office,” and provides “that the proofs of the death by which this contract matures shall contain full and true answers, under oath, to the questions in the company’s blanks for proofs of death, relating to the life, health and death of the person in question ; and shall include (1) a statement of the extent and character . of each and every claimant’s interest in the policy; (2) the statement of the physician or physicians, if more than one, who attended the deceased during his last illness or within a year previous; (3) the statement of a responsible householder acquainted with the deceased; (4) the statement of the undertaker.”

But the policy declared “ that the self-destruction of the person, whether voluntary or involuntary, and whether he be sane or insane at the time, is not a risk assumed by the company in this contract, but, in every such case, the company will, upon demand made and the surrender of this policy, accompanied with satisfactory proofs of such death, within sixty days after its occurrence, pay the net reserve upon it held by the company at the beginning of the year in which death occurs.”

The complaint stated that Edler died on the 27th of August, 1876, and, in regard to each policy, that proofs of his death as thereby required were served upon the defendant. The answer admits the death of Edler at or about the time named, and that proof of his death lias been served upon it as in the complaint stated.” As to the claim under the first policy the defendant alleges that the said Edler committed suicide and took his own life by his own act and by his own hand; ” and as to the second, that he came to his death' by self-destruction. They also put in issue the assignment by him.

Upon the trial the plaintiffs put in evidence the policies and proved their title by assignment. They then called Daniel Goldschmidt, who testified that he was one of the plaintiffs, and he was about to state the consideration of the assignments and the extent of the plaintiffs’ claim under them, when the defendant’s counsel objected, and the proposed evidence was excluded. He then testified that he knew of Edler’s death on the 27th of August, 1876; that he attended the funeral and saw his dead body. The defendant’s counsel then placed in the hands of the witness certain papers, marked “ Exhibit Ho. 1, for identification,” containing proofs of death and other matters referred to in the second policy, and proved by him that the signature to the certificate was his own and also that of the firm, of which plaintiffs were the members. The exhibit contained various papers, entitled as follows: First, claimants’ certificate second, attending physician’s certificate; third, friends’ certificate ; fourth, undertaker’s certificate; all upon the defendant’s blanks, and given in answer to questions framed by them. Among those addressed to the claimants, in paper called claimants’ certificate,” are these questions and answers:

“Place and date of death? Ho. 324 West Fifty-second street, in the city of Hew York, as we are informed and believu; August 27, 1876.
“ a. Remote cause of death ? a. Disease of the bladder and urinary .organs.
“ b. When did the health of the deceased first begin to be affected ? b. Hot known to us, but we are informed and believe several months before his death.
o. Immediate cause of death ? o. Hot known to us, other than he was afflicted by the above-mentioned disease.
(I. Duration of last illness ? d. Hot known to us, except that he had been afflicted with the above-mentioned disease for several months before his death.
“e. Give every particular in relation thereto within your knowledge? e. Hot known to us, except that for several months he appeared to be suffering severe pain consequent, as we suppose, upon the above-mentioned disease.
Hame and residence of every physician who attended and prescribed for deceased during the last year prior to death, or since he became out of health ? Dr. F. Zinsser, of Ho. 47 West Twenty-eighth street, in the city of Hew York, as we are informed, prescribed for deceased during this period; we know of no other.
“ Did deceased violate any condition of the above-mentioned policy in respect to residence, travel, occupation, use of spirituous liquors, dueling, suicide, violation of law, or had he been convicted of felony ? Ho, not to our knowledge.”

Then follows this direction and answer: “ In case of coroner’s inquest, furnish the company with verdict of the jury and all the evidence on which such verdict was based ? (Ans.) We are informed that what purported to be a coroner’s inquest was held; we annex a copy of what is represented to us to be the verdict of the jury and of the evidence on which said verdict was based. But we do not hereby admit that there was any such inquest, verdict or evidence, and we deny that the purported finding of such alleged jury was true or well founded, and we deny the fact alleged to have been found by such jury, . and we deny the truthfulness of the alleged evidence on which said verdict is said to be based.”

Attached to the papers referred to is a copy of the testimony purporting to have been taken before the coroner, and a copy of the inquisition; in effect that a jury of seven, whose names are given, upon their oaths and affirmations, say that the said Oscar Edler came to his death by suicide by cyanide of potassium, on the 27th day of August, 1876, at Ho. 324 West Fifty-second street.” :

The plaintiffs rested. The defendant’s counsel then proposed to read the exhibit for the purpose of basing a motion thereon, that the complaint be dismissed,” “ because the proofs of death show affirmatively on the face that this man did not die within any of the risks assumed by this company. They show that he died by his own hand.”

The plaintiffs’ counsel objected, “ except so far as they are evidence of the death as required by the rules of the company, and of the plaintiffs’ presentation of proof to the company under their rules,” and separately objected to the proceedings before the coroner being introduced in evidence as an admission of the plaintiffs, or asevidenceof the statements contained therein.

Both objections were overruled and to each decision the plaintiffs’ counsel excepted. The trial judge then ruled that the complaint should be dismissed unless the plaintiffs showed how the' death of Edler was produced; that as to it they had the affirmative.” To this the plaintiffs excepted, and they giving no further evidence, the defendant’s motion was granted and the complaint dismissed, but on application of defendant’s counsel, and against the objection of the plaintiffs, the court subsequently ordered a verdict for the plaintiff's for the sum admitted by defendants to be due.

In these rulings we think the trial- court erred. In the first place, the complaint alleges and the answer admits -the issuing of the policies, the death of Edler during the life of the policies, that proof of his death was served upon the defendant, and demand of payment made, as set forth in the complaint. So far there was a complete case conceded, and if the plaintiffs’ title to recover had not depended upon their character as assignees, which was denied by the answer, no evidence could have been required on their part.

Under the first policy the obligation of the defendant became perfect in sixty days after the death of Edler and notice and proof of his death. Ho particular form of proof was specified in the policy and the only reference to it is the clause which thus fixes the time when the money is to become payable. Ho doubt the company were entitled to such proof as would afford reasonable assurance that their liability for loss existed, but where the policy does not require specific information nothing more can afterward be required. Second, the company did, however, propose inquiries upon the points named in the policy, and they were answered. They had from the claimant the time of death, its remote and its immediate cause. They also had much other information, to which the terms of this policy make no allusion. They had from a friend of Edler and from the undertaker who buried him positive statements on oath as to his death and actual burial and his identity with the person insured. They suggested no defect in these respects, hi of was any suggested on the trial. The only claim was that the copy of the proceedings on the inquest, given in addition to the proof required by the policy, made out a case of suicide and required the plaintiffs to show the contrary. I can discover no principle upon which such a proposition can stand. The policy makes no provision for it. The original proceedings would not be evidence upon the issue. Its verity is not admitted by the claimant; it is denied. It could not have been required by the defendant; it was not adopted by the plaintiffs, but out of what must now seem ill-advised courtesy was furnished to the defendants at their request. It contained matter which, if properly substantiated, would have availed the defendants in maintaining an affirmative defense, but in no view suggested to us by the learned counsel for the respondents could it, as now presented, change the burden from them to the plaintiffs. If, by any process of reasoning, any part could be. taken as an admission of the plaintiffs, it must be taken as a whole, and so taken is no concession of any fact, but a mere communication of hearsay evidence, the truth of which is at the same time denied, enough to put the defendant upon inquiry, but in itself is no answer to the plaintiffs’ claim, even in the first instance.

It is argued that the court below was controlled by authority, and the case then cited is relied upon by the defendant to uphold the ruling, viz.: Insurance Company v. Newton (22 Wall. 32). Under what circumstances the proofs in that case were prepared does not appear, the statement being that the proofs of death consisted of several affidavits, giving the time, place and circumstances ” of the death of the insured, and the record of the jury upon the coroner’s inquest.” It may be inferred that the whole were verified by the claimants, and that they were called for by the contract of insurance, for the court held that the preliminary proofs presented to an insurance company in compliance with the conditions of the policy of insurance are admissible as prima facie evidence of the facts stated therein against the insured and in behalf of the company,” and the court say “ the narration of the manner of the death of the deceased was so interwoven with the statement of his death, that the two things were inseparable.”

In the case before us it is quite otherwise. The insurer raised no issue as to the preliminary proofs of death, and they were in all respects complete without the statement as to the coroner’s inquest. Its contents formed no part of the representations of the claimants; the statements were not sworn to by them, nor presented as worthy of belief., They were in no respect bound by them. Nor were they necessary, as in the case cited, to qualify the defendant’s admission, on which the plaintiffs then relied.

I have spoken more particularly of the first policy. The second policy, as we have seen, contains other provisions concerning proofs of loss. They have been complied with literally. They do not require, the facts and circumstances attending the death to be set forth in the proofs, nor do they call for any information concerning an inquest or other examination. Under this policy, as under the other, the question was unwarranted, and although the circumstances stated were calculated to gratify curiosity and perhaps serve a useful end, formed no part of the proofs called for, nor were they given as matter credited by the claimants. The insurer could, so far as it thought proper, regulate its conduct by any suspicions thereby excited, but it could not make use of the statement, as one binding upon the plaintiffs. If the policy was void by reason of any act of Edler, or if his death was from a cause against which they had not insured, it was for them, as the case stood, to make good the averment in the answer, and show by proof that the suicide alleged had been actually committed. It was not necessary for the plaintiffs to ask to go to the jury. The trial court, in admitting the coroner’s inquest and proceedings under it in evidence, and deciding that the burden of showing that the insured did not die by his own hand, as therein stated, was on the plaintiffs, committed errors in favor of the defendants and at their request. They cannot now object that some other course might have been taken. As the case stood, no question of fact was in dispute, and the plaintiffs were entitled to recover.

The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Ruger, Ch. J.

license: Public Domain

text:
    Robert F. Brundage, Appellant, v. The Village of Port Chester, Respondent.
    Plaintiff made a demand upon defendant’s treasurer for the payment of an indebtedness due from the defendant to him for work and labor. This the treasurer refused unless plaintiff would consent to deduct from, the sum due him the amount of an illegal assessment upon his property, which assessment had been set aside. Plaintiff consented to accept such balance, which was paid to him. In an action brought more than six years thereafter, in form to recover back the amount so deducted, as for money had and received by plaintiff for defendant, held, that plaintiff’s only cause of action was for the balance of the original indebtedness, which was not discharged by the action of the treasurer, but was barred by the statute of limitations.
    (Submitted April 27, 1883 ;
    decided June 1, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 11, 1883, which reversed a j udgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 31 Hun, 129.)

      The nature of the action and the material facts are stated in the opinion.

      Wilson Brown, Jr., for appellant.
    As while the assessment was in force no action could have been brought to recover back the money paid on it, and plaintiffs only remedy was to bring an action in equity to first set aside the assessment, this action is within section-888 of the Code, which gives such action a limitation of ten years. (Salisbury v. Morss, 7 Lans. 367; McTeague v. Coulter, 6 J. & S. 208 ; 2 Dill, on Mun. Corp. [3d ed.], § 939; Bk. of Commonwealth v. Mayor, etc., 43 N. Y. 144-8; Peyser v. Mayor, etc., 70 id. 502; Bk. v. Mayor, etc., 43 id. 184; Swift v. City of Poughkeepsie, 37 id. 511, 514.) The statute of limitations will not begin to run until the right of action to recover the money accrues. (Wood on Lim. 335, § 160; Collins v. Thayer, 71 Ill. 138; Cairo, etc., R. R. Co. v. Parks, 33 Ark. 131.)

      Isaac JV. Mills for respondent.
    If this action be treated as one to recover back illegal assessments paid under compulsion or duress, it is the old action of money had and received, and •is upon implied contract, and the right of action was barred in six years from the payment. (Code of Civ. Pro., § 382 ; Brundage v. Village of Port Chester, 31 Hun, 131; Newman v. Supervisors of Livingston Co., 45 N. Y. 676, 686, 688; Dewey v. Supervisors, 62 id. 294, 296-7 ; Breucher v. Village of Port Chester, Ct. App. Dec., Jan. 19, 1886; 23 Week. Dig. 40; Horn v. Town of New Lots, 83 N. Y. 100, 103; Ross v. Supervisors of Cayuga, 38 Hun, 20, 25 ; Bridge v. Supervisors of Sullivan, 92 N. Y. 570, 581; Bronson v. Munson, 28 Hun, 54, 59, 60; Pierson v. McCurdy, 33 id. 521, 529, 530, 532, 533, 534.) The right of action was perfect the instant the money was paid, and no demand was necessary before the action could be brought. (Breucher v. Village of Port Chester, supra ; Brundage v. Village of Port Chester, 31 Hun, 131; Matter of Cole, 34 id. 320; Howard v. France, 43 N. Y. 595 ; Compton v. Elliott, 48 N. Y. Sup. 214.) The assessments were illegal and void for patent jurisdictional defects as was determined by this court. (Merritt v. Village of Port Chester, 71 N. Y. 309, 388; Bruecher v. Village of Port Chester, supra; Horn v. Town of New Lots, 83 id. 104.) Therefore the plaintiff, if he paid them under duress or compulsion, had the right to sue at once to recover the money paid without a demand and without having the assessments vacated. (Newman v. Supervisors of Livingston Co., 45 N. Y. 676; Strasburgh v. Mayor, etc., 87 id. 452; Horn v. Town of New Lots, 83 id. 100; Bruecher v. Village of Port Chester, supra; Brundage v. Village of Port Chester, 31 Hun, 131; Ross v. Supervisors of Cayuga, 88 id. 23-26.) By asking to have the assessments vacated, so far as paid by the alleged payments in question, the plaintiff did not change the character of the action and make it one for equitable relief, and so bring it within the ten years limitation. (Brundage v. Village of Port Chester, 31 Hun, 131-2.) Plaintiff’s cause of action is upon contract for the recovery of a simple debt. (Code of Civ. Pro., § 382; Knapp v. City of Brooklyn, 97 N. Y. 523; Bruecher v. Village of Port Chester, 31 Hun, 553; Hall v. Taylor, 8 How. Pr. 430; Hunt v. Dutcher, 13 id. 540; Hulbert v. Young, id. 414; White v. Law, 7 Barb. 206 ; Gratman v. Thrall, 44 id. 174; Cleveland v. Rogers, 6 Wend. 440; Thomas v. Robinson, 3 id. 268; Cornell v. Barnes, 7 Hill, 36; Dakin v. Hudson, 6 Cow. 224; Wheeler v. Raymond, 8 id. 314; Turner v. Robey, 3 N. Y. 193 ; Chemung Bk. v. Judson, 8 id. 260 ; 2-Wait’s Pr. 326.) If this action be treated as plaintiff claims it should be, as an action to recover money paid upon legal assessments, the burden of proof as to the illegality of the assessments was upon the plaintiff. (Strasburgh v. Mayor, etc., 87 N. Y. 455; Horn v. Town of New Lots, 83 id. 104; Wilkes v. Mayor, etc., 79 id. 621; Peyser v. Mayor, etc., 70 id. 497; In re Voorhees, 90 id. 668; Tingue v. Village of Port Chester, 23 Week. Dig. 147.)
   Ruger, Ch. J.

In the year 1874 the defendant was indebted to the plaintiff in the sum of upwards'of $5,000 for work and labor performed by him, in the grading of Hoseco avenue in the village of Port Chester. The plaintiff was also then apparently liable, to contribute to the expense of building and grading village streets, and had been theretofore assessed for that purpose by the village authorities in the sum of upwards of $3,000, and they threatened to enforce and collect such assessment by a sale of his land. Under these' circumstances the plaintiff demanded payment from the village of the whole sum due him for work, the village treasurer refused to pay that amount, but offered to pay the balance due him, after deducting the amount of the assessment in question. The plaintiff finally consented to accept such balance, and it was paid to him in 1874, and the assessment against him was thereupon canceled and discharged by the treasurer. This "transaction is the basis of the plaintiff’s claim to recover back money paid by him to the defendant.

It is not alleged in the complaint, and does not appear by the evidence or findings that the plaintiff receipted for, or canceled, the indebtedness of the village to him, or that his right to enforce payment thereof, was barred by any act done by, or required of him, by the defendant.

This action was brought to recover back the amount so deducted, as for money had and received by the defendant for the plaintiff’s use, upon the alleged ground that the assessment referred to was illegal and void. The defense is the statute of limitations, and the question in the case is whether the ten or six years limitation applies.

It is claimed by the plaintiff that the action is in equity to vacate and set aside the assessment as illegal and void, and to recover back the money paid as an incident of such relief. On the other hand, it is denied that any such relief is shown to be necessary, and is claimed that the action is simply one in assumpsit and subject to the six years limitation alone. We think . the defendant’s position is unanswerable.

It cannot be disputed, if the action was brought to recover back the money paid upon an assessment apparently valid and levied according to the forms of law, but rendered illegal by extrinsic facts, or those which were not apparent upon the face of the proceedings, but that it was necessary for the plaintiff to proceed in equity to vacate such proceedings, before he could recover back moneys paid thereon. (Horn v. Town of New Lots, 83 N. Y. 100.) There are several reasons, however, why this is not such a case.

First. The complaint shows affirmatively that the' plaintiff is not entitled to equitable relief. It alleges in unqualified terms that the assessments which afforded the only ground for claiming equitable relief had been vacated and annulled long prior to the commencement of the action, and this allegation is not only not denied by the answer, but is sustained by the express findings of the trial court, and must be regarded as an indisputable fact in the case. (Bruecher v. Village of Port Chester, 3 East. Rep’r, 736.)

If the action be considered, therefore, as any thing but one in assumpsit, it is not maintainable at all, either upon the pleadings or the findings.

Second. The evidence shows conclusively that no right of action accrued to the plaintiff, out of the conduct of the defendant in requiring the application of the illegal assessment upon its indebtedness to the plaintiff. That indebtedness wees not discharged by such action, but remained an existing and enforceable demand, against the defendant as well after, as before such transaction. The act of the defendant did not extinguish the plaintiff’s demand or change the character of its liability to him. The existence of the illegal assessment would have constituted no defense to an action for its debt, and in the prosecution of such an action it would have been unnecessary, in the first instance, for the plaintiff to impeach the validity of such assessment, as it could be availed of only by way of counterclaim to his actions, and as such was assailable at law, for its illegality. Even if we could imply from the evidence in the case, that the plaintiff assented to the application of his debt, the fact that it was obtained by duress vitiated such consent, as much as it deprived the payment of its voluntary character, and would not stand in the way of a prosecution of his claim. The transaction did not operate in any way as a payment of the debt, and an action thereon was governed by the six years period of limitations, and expired three years before this one was commenced. The acceptance by the plaintiff of a certain amount upon his debt operated only as payment pro tanto, and left him at liberty to sue for and collect the balance, at any time thereafter, within the statutory period of limitation. The cause of action, and the only cause of action, existing in favor of the plaintiff, arose upon the maturity of his debt against the defendant, and not at the time of its attempted application, and the statute of limitations then began to run against it.

Third. No money was paid by the plaintiff to the defendant upon “the assessment in question. The defendant has simply neglected -to pay the plaintiff the amount due from it, and remains liable to him for the balance. This liability, has not been converted into another cause of action, by its refusal to pay the debt. An action to recover for money paid, or had and received, will not lie generally except upon the payment of money. (National Trust Co. v. Gleason, 77 N. Y. 400; Cumming v. Hackley, 8 Johns. 202; Moyer v. Shoemaker, 5 Barb. 319.) It has been held, however, that the action may be maintained when its equivalent, has been actually accepted as money, by the party receiving it, as where an agent has discharged his principal’s debt by applying thereon a debt owing by himself (Beardsley v. Root, 11 Johns. 464), or where a surety has transferred property to the creditor, who received it in payment of a judgment. In such cases the principal has been held liable for the amount of his debt, discharged by the payment, as for money paid by the surety.for him. (Bonney v. Seely, 2 Wend. 481.) But here nothing has been received by the defendant, and its legal situation remained unaffected, by the attempted application of the illegal assessment, upon its indebtedness. Neither money nor its equivalent has been received by the defendant, and the effort to sustain this action is an attempt to convert a simple contract liability, into one to recover for money illegally held by the debtor, for the use of the creditor.

We do not find any case going far enough to uphold such a claim.

The order should, therefore, be affirmed.

All concur.

Order affirmed.


author: Finch, J.

text:
    Julius P. Morgan, Respondent, v. The City of Binghamton, Appellant.
    A court of equity will not interfere by injunction with a plan of improvement adopted in good faith by municipal authorities, and within the scope of their authority, where injury therefrom is doubtful, eventual or contingent. To justify such an interference it must be shown that injury material and actual is the necessary or probable result.

      Morgan v. Gity of Binghamton (32 Hun, ,603), reversed so far as appealed from.
    (Argued April 28, 1886 ;
    decided June 1, 1886.)
    Appeal from certain portions of a judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 31,1881, which, among other things, affirmed, so far as appealed from by defendant, the city of Binghamton, a judgment entered upon a decision of the court at Special Term. (Reported below, 32 Hun, 602.)
    This action was brought to restrain the construction of the Carroll street sewer, so called, in the city of Binghamton. By the plan of sewerage adopted by the proper municipal authorities, this was to be a main sewer, sewers from other streets emptying therein. -By the judgment the construction of the Carroll street sewer for the use of the residents along that street was permitted, but the use thereof in carrying off the sewage from other streets was restrained and prohibited.
    The facts, so far as material, are stated in the opinion.

      A. D. Wales for appellant.
    The right of the plaintiff to his relief should be made so clear as to leave no reasonable doubt, and the relief should not be granted' on mere speculation or proof of a consequential injury not necessarily resulting . from the acts complained of. (High on Injunctions, § 488 ; Phœnix v. Commissioners of Emigration, 12 How. 1; Sweets. City of Troy, 62 Barb. 631, 632; Radcliff v. Mayor, etc., 41 N. Y. 245; Williams v. N. Y. C. R. R. Co., 18 Barb. 222; Wilson v. Mayor, etc., 1 Denio, 596 ; Ellis v. Duncan, 11 How. 515; People v. Toynbee, 12 id. 259; Arnold, v. Hudson R. R. R. Co., 49 Barb. 121; Kavanagh v. City of Brooklyn, 38 id. 232; Ely v. City of Rochester, 26 id. 133 ; Health Dept. of N. Y. v. Purdon, 99 N. Y. 241.) The plaintiff is not entitled to maintain this action for the reason that the nuisance, if any is created, will be a public nuisance. (High on Injunctions, § 522; Lansing v. Smith, 8 Cow. 156; Spader v. N. Y. El. R. R. Co., 3 Abb. N. C. 475 ; Fort Plain Bridge Co. v. Smith, 30 N. Y. 62; Groat v. Moak, 26 Hun, 381.) Vague, uncertain and apprehended danger will not justify an injunction. (City of Rochester v. Erickson, 46 Barb. 92; People v. Canal Board, 55 N. Y. 397; Williams v. N. Y. C. R. R. Co., 18 Barb. 222; Swett v. City of Troy, 12 Abb. [N. S.] 100; Bouton v. City of Brooklyn, 15 Barb. 375; Phœnix v. Commissioners of Emigration, 12 How. 1; Fisk v. Wilbur, 7 Barb. 395; Harrison v. Newton, 9 N. Y. Leg, Obs. 311; High on Injunctions, § 786.)

      G. L. Sessions for respondent.
    A municipal corporation is not only responsible for the result of the nuisance created by it to individuals sustaining special damages, but an action will lie against it to restrain such damages by injunction. (1 High on Injunctions, §§ 810, 825; Brower v. Mayor, etc,, 3 Barb. 254; Davis v. Mayor, etc., 14 N. Y. 526; Negus v. City of Brooklyn, 90 id. 403 ; S. C., 10 Abb. N. C. 182 ; Beach v. City of Elmira, 22 Hun, 162; Myers v. Phelps, 97 N. Y. 491; Bradt v. City of Albany, 5 Hun, 593 ; Davis v. Mayor, etc., 1 Duer, 501-506.) The fact having been established and found that the sewer used for the purpose intended, and as it was about to be used, would necessarily create a nuisance that would poison the atmosphere and depreciate respondent’s property, it was just as much an invasion of plaintiff’s rights as though there was a tangible interference with his property. (Manhattan Gas-light Co. v. Barker, 36 How. 238; Campbell v. Seaman, 63 N. Y. 568; Noonan v. City of Albany, 79 id. 476.) The nature of plaintiffs damages were such as to enable him to maintain the action. (Davis v. Mayor, etc., 14 N. Y. 526 ; Milhau v. Sharp, 28 Barb. 228; Manhattan Gaslight Co. v. Barker, 36 How. 238; First Baptist Church v. Troy R. R. Co., 5 Barb. 79.) The injury from the sewer was not a speculative one, nor a remote one, nor a. contingent one. (McKeon v. Sec, 51 N. Y. 307 ; Davis v. Mayor, etc., 14 id. 526; Milhau v. Sharp, 28 Barb. 228 ; People v. Canal Board, 55 N. Y. 390, 397; City of Rochester v. Erickson, 46 Barb. 92.)
   Finch, J.

The findings of fact of the trial j udge are conclusive for all the purposes of this appeal. If the evidence leaves any of them doubtful the deficient proof may have been supplied by his personal examination, since he went over the route of the sewer and took careful observation of the locality, with the consent of both parties and doubtless aided by their suggestions. The sole question before us, therefore, is whether upon those findings the plaintiff was entitled to so far defeat the plan of sewerage adopted by the common council as to prevent and restrain the connection of other sewers with that running through Carroll street.

It is not contended that any of the sewers as planned will discharge their contents upon plaintiff’s land or in any manner touch or interfere with his premises; and all the cáses in which equity has interfered to prevent the discharge of sewage upon private property have no application. The prevailing opinion at General Term indulges in that misapprehension and has been.criticised upon the argument in that respect. The injury apprehended is not that, but something very different. Instead of a direct trespass it is a consequential damage which is threatened. The theory of the findings is that in one or two, or very surely in three years after the branch sewers are emptied into the Carroll street sewer, and have become largely connected with premises along their lines, the discharge at the mouth' of the Carroll street sewer into the river will be strewn along its banks and stranded upon low lands, and tend to produce offensive and unhealthy odors, tainting the air and planting the seeds of disease, and that the premises of the plaintiff are so situated as to be peculiarly exposed to these dangers by reason of proximity. The evil will reach the plaintiff, if at all, through the poisoning and infection of the air, and not from any discharge of sewage upon his lands, or any deposit of it there by the river currents.

The findings plainly disclose two characteristics of this apprehended danger. It is not imminent, and it is wholly contingent and not inevitable. No immediate danger exists. It is found to be possible within one or two years, but not certain to occur sooner than in three years. Every finding which prognosticates threatened evil is qualified by the phrase “ in time,” which limits it to some indefinite future period; and when the findings seek to fix that, they postpone it as a certain danger for three years. But they leave it then merely a contingency depending, as the findings express it, upon the condition that the branch sewers should be mainly used by the inhabitants ” of the adjoining streets. Nobody knows when they will be so “mainly used.” Houses which have their own cess-pools and privy vaults may not for many years be fitted with modern closets and sewer connections. Such improvements are beginning to be questioned for their own evils and dangers, and may come slowly, and no evidence or finding indicates the probable period. The contingency as to time is further made to “ depend very much upon the quantity of water used in the sewer.” The twenty-sixth finding of the trial judge explicitly declares that “ the pernicious effects of the depositing of sewer matter at this point and the timé when such will be felt are dependent upon various uncertain future events;” and this shows that the evil itself as well as the date of its appearance are alike contingent and not inevitable. The danger, therefore, which can alone, support this injunction is in the air of an uncertain and indefinite future. Its possible coming rests upon opinion and speculation. It is both doubtful and remote. Experience only can test the question satisfactorily, and meantime a carefully planned system of sewerage made to secure health and cleanliness to a growing city is maimed and disjointed.

Such a result, it seems to us, ought not to be sustained. The restraining force of a court of equity should very rarely, in the absence of fraud or bad faith, set itself above the discretion and judgment of administrative officers to whom the law commits a decision. (High on Injunctions, § 1270.) And this for the evident reason that a reversal of their judgment is but saying that the court judges differently upon what has been intrusted to another discretion and simply confronts that opinion with its own. And where the evidence is conflicting and the injury doubtful, eventual or contingent, the tribunal intrusted by the law with the plan and execution ought not to be overruled. (Hilliard on Injunctions, 305; Swett v. City of Troy, 62 Barb. 630.) “Injury material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable results of the action sought to be restrained.” (People v. Canal Board, 55 N. Y. 397.) The injury described in the findings before us is problematic, distant, merely possible. Consistently with all their averments it may never occur, and is only prophesied upon the basis of the happening of certain contingencies which may or may not arise. Meantime a plan of improvement looking to the health and comfort of the city tad its inhabitants, adopted in good faith by the municipal authorities, with the aid of an engineer not claimed to be incompetent or unskillful, is stopped and dismembered and the branch sewers left useless, to the inconvenience of all desiring their benefit. For three years at least, and very probably for a longer period, the findings leave it certain that no evil will result; and if upon actual experiment it is found that sources of danger exist, it must be presumed that the constituted authorities will do their duty and adopt some plan to remove it. Such a plan the court below suggests, involving a very serious increased expense. That ought not to be forced upon the city until some present necessity shall compel. To sustain this judgment would push our authority beyond its limits and hamper official bodies, making public improvements beyond reason.

So much of the judgment of the General Term as is appealed from should be reversed, the injunction dissolved and a new trial granted, costs to abide event.

All concur.

Ordered accordingly.


author: Buger, Ch. J.

text:
    James Murray, Appellant, v. William H. Beard et al., Respondents.
    An agent is held to the utmost good faith in his dealings with his principal; if he acts adversely to his employer in any part of the transaction, or omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment, it is such a fraud upon his principal as forfeits any right to compensation for his services.
    An agent may not act as such in a transaction where he has an interest or employment adverse to his principal.
    Plaintiff, a timber broker in New York, having learned that a company required a large number of piles and were about to advertise for bids from timber merchants to supply them, visited the several dealers therein in New York and Brooklyn, among them the defendants, obtained prices and under the inducement that he would act for them respectively in procuring a sale, obtained a promise from each that if he secured a sale for such dealer he should receive an agreed commission. Plaintiff did not inform the dealers of the name of the intended purchaser, or that a contract could be obtained only by competitive bidding, or that he had effected a similar understanding with other dealers. The company issued proposals, and sent to said dealers, including defendants, invitations to compete for the contract. Plaintiff, defendants and other dealers submitted bids for the contract, which was awarded to defendants. In an action to recover the agreed commission wherein the above facts appeared, held, that plaintiff was properly nonsuited; that there was no consideration for the agreement; also that there was a suppression of material facts on the part of plaintiff in making the contract; and that it was against good morals, as plaintiff owed duties to different principals, which were conflicting and incapable of faithful performance by the same person; also held, that the proof failed to show any service rendered by plaintiff to defendant in effecting the sale.
    (Argued April 28,1886;
    decided June 1, 1886.)

      Appeal from judgment of the General Term óf the City Court of Brooklyn, entered upon an order made June 9, 1884, which affirmed a judgment in favor of defendants, entered upon an order dismissing the complaint on trial.
    This action was brought by plaintiff, a timber broker, to recover commissions for services alleged to have been rendered for the defendants in effecting the sale of about four thousand five hundred piles.
    The material facts are stated, m the opinion.

      Henry D. Hotchkiss for appellant.
    It was not necessary for plaintiff to- ask to go to the jury. His exception to the ruling of the court was sufficient. (Stone v. Flower, 47 N. Y. 566; Freaking v. Rolland, 53 id. 422.) The disposition made of the case by the trial judge amounted in effect to a decision that, as a matter of law, the plaintiff had not produced sufficient evidence to sustain his alleged cause of action. (Scofield v. Hernandez, 47 N. Y. 313; Colt v. Sixth Ave. R. R. Co., 49 id. 671.) Upon this appeal the plaintiff must have the benefit of all the facts his evidence tended to prove. ( Wylie v. Marine Nat. Bk., 61 N. Y. 417.) Á cancellation was not effected by defendants merely bidding a lower price, no effort to obtain the higher price having been made, or proof offered that it could not have been obtained. (Chilton v. Butler, 1 E. D. Smith, 151-2; Wylie v. Marine Bk., 61 N. Y. 415; Sibbald v. Bethlehem 1. Co., 83 id. 378.) No question as to invalidity of the agreement as to bidding is raised by the answer. (Marsh v. Russell, 66 N. Y. 288 ; Dutch v. Harriman, 37 Sup. Ct. 306 ; Jones v. North, 19 Eq. Cas. 426.) The law will not presume an agreement void or illegal, or against public policy when it is capable of a construction which will make it valid. (Curtis v. Gokey, 68 N. Y. 300.) The agreement between these parties was not intended to, nor could it have had any tendency to reduce the number of bidders or prevent the work from being let to the lowest bidder. (Kearney v. Taylor, 15 How. [U. S.] 494.) The agreement at the most made the parties joint bidders, and a joint proposal the result of honest co-operation, though it might prevent the rivalry of the parties and thus lessen competition, is not an act forbidden by public policy. (Atchison v. Mallon, 43 N. Y. 151.) No matter how slight the service performed by the plaintiff, such service was good consideration for the defendant’s promise to pay. (Lampleigh v. Brathwait, 1 Smith’s Lead. Cas. 67.)

      Thomas E. Pearsall for respondents.
    In order to entitle plaintiff to recover, he should prove his authority to act for defendants, and that his agency was the procuring cause of the sale, i. e., that he discovered the purchaser, started the negotiations between the parties and a closing of the bargain as the result of his agency. (Stillman v. Mitchell, 2 Robt. 523 ; Chilton v. Butler, 1 E. D. Smith, 150 ; Goodspeed v. Robinson, 1 Hilt. 423.) Simply calling attention to the matter is insufficient. (Halley v. Townsend, 16 How. Pr. 125; Cashman v. Cow, 1 Hill, 356; Pierce v. Thomas, 4 E. D. Smith, 354.) Plaintiff does not even prove that he first called defendants’ attention to the matter, and, therefore, it was proper for them to act as they did. ( Wylie v. Marine Nat. Bk., 61 N. Y. 415 ; Eraser v. Wyckoff, 63 id. 445; Sibbald v. Bethlehem I. Co., 83-id. 378.) The arrangement, as alleged by plaintiff, to both bid the same amount was void as being against public policy, there being no valid consideration on plaintiff’s part for the payment to be made to him. (Doolin v. Ward, 6 Johns. 194; Wilbur v. How, 8 id. 444; Woodworth v. Bennett, 43 N. Y. 273.)
   Buger, Ch. J.

The. claim in this case presents a novel industry and one which, if successful, would promise to be the source of profit to its prosecutors, without much expenditure of time or money. The plaintiff, a timber broker, learning that the Hamburg American Packet Company was about to build a pier, requiring a large number of piles in its construction, and to advertise for bids from timber merchants to supply them, visited the several dealers in such materials in New.York and Brooklyn, and obtained prices therefor, and under the inducement that he would act for them respectively in securing a sale of piles, obtained promises from each that if he secured a sale for such dealer, he should receive a commission of twenty-five cents on each pile sold. He did not inform the dealers, of the name of the intending purchaser, or the fact that a contract could be obtained only by competitive bidding, or that he liad effected a similar understanding with other dealers. The company soon thereafter issued proposals for the supply of piles, and sent invitations to dealers generally, among whom were the defendants, to compete for a contract for the piles required. A number of persons, among whom were the plaintiff, the defendants and other dealers, submitted bids for such contract, and after a canvass of such proposals by the company’s engineer, he awarded the contract to the defendants. The defendants having refused to pay the plaintiff’s claim fur commissions, this action was brought to recover them.

On the trial the plaintiff was nonsuited upon the ground that there was no consideration for the promise to pay commissions. We think the judgment was properly ordered on that ground, and that it can also be sustained upon the ground of fraudulent suppression of material facts by the plaintiff in making the contract, as well as that it.was contra bonos mores. The plaintiff, while assuming to act for the defendants in obtaining the contract of sale, was in fact under equal obligations, to competing dealers, to assist them in effecting the same sale. Thus if the plaintiff’s services could have been of advantage to any one, he was under the necessity of being treacherous to one employer or another. An agent is held to uberrima fides in his dealings with his principal, and if he acts adversely to his employer in any part of the transaction, or omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal, as to forfeit any right to compensation for services. (Story on Agency, §§ 31, 334; Story’s Eq. Jur., § 315 ; Ewell’s Evans on Agency, 268 ; Dunlap Paley on Agency 105, 106 ; Carman v. Beach, 63 N. Y. 97, 100.) It is an elementary principle that an agent cannot take upon himself incompatible duties, and characters, or act in a transaction where he has an adverse interest or employment. (N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co., 14 N. Y. 85; Ewell’s Evans on Agency, 14; Greenwood v. Spring, 54 Barb. 375 ; Neuendorff v. World Mut. Life Ins. Co., 69 N. Y. 389.) In such a case he must necessarily be unfaithful to one or the other, as the duties which he owes to his respective principals are conflicting, and incapable of faithful performance by the same person. The plaintiff in this case was a bidder for the contract, and if he succeeded in obtaining it himself, and had ' not the piles to fulfill it, he was under equal obligations to several different persons to employ their piles in its performance. Some or all of his principals must have been disappointed by him, and he would have been under the necessity of violating his obligations, to some of his employers. Such conduct is violative of the plainest principles of morality and' fair dealing, and cannot be sustained by a court of j nstice.

Neither does the proof show that he rendered any service to the defendants in effecting the sale. His situation rendered him incapable of serving the defendants to advantage even if he had desired to do so, but the evidence fails to show any effort on his part to sell the defendants’ property. He did attempt to sell his own property, or secure the contract for furnishing piles, but whether this was done for the defendants’ benefit or not, does not appear. As we have seen,he was under contract obligations to others as well as to the defendants, and it does not lie in his mouth to allege that he intended to defraud others for the benefit of the defendants. There was no evidence showing a performance by the plaintiff of the obligations of his contract with defendants and he was, therefore, properly nonsuited on the trial.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Daneorth, J.

text:
    The People of the State of New York, Respondent, v. Kortright Cruger, Appellant.
    Where the owner of personal property intrusts it to another, to procure a loan thereon, and the latter procures the loan as authorized, his omission to account for or appropriation of-the proceeds of the loan will not sustain, an indictment against him for larceny of the property.
    Where, therefore, upon the trial of an indictment for larceny of a diamond pin there was evidence tending to show that the prosecutor delivered the pin to defendant to procure a loan thereon, and that defendant did do so, held, a refusal of the court to charge the jury that if they believe the complainant was authorized to and did procure a loan upon the pin as authorized, they could not convict under the indictment, was error.

      People v. Oruger (38 Hun,. 500), reversed.
    (Argued April 29,1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 8, 1886, which affirmed a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict convicting the defendant of the crime of grand larceny in the second degree. (Reported below, 38 Hun, 500.)
    The material facts are stated in the opinion,

      Morris A. Tyng for appellant.
    Unless a trespass was committed the offense charged in the indictment was not made out. (Thorne v. Turck, 94 N. Y. 90, 95 ; People v. Plath, 100 id. 590.) Evidence of embezzlement will not support a conviction of larceny. (Comm. v. Simpson, 9 Metc. 138, 142; Comm. v. King, 9 Cush. 284, 287.) The pin being lawfully in defendant’s possession, with the consent and express authority of the owner, for the purpose of procuring a loan, there could be no conviction under the indictment for larceny of it. (Comm. v. Stearns, 2 Metc. 347.)

      Randolph B. Martino for respondent.
    The defendant may not now avail himself of any variance between the indictment and the proof, even if the indictment does set forth a common-law larceny, and the proof was of a misappropriation, of property by an agent. (Code of Crim. Pro., §§ 465, 467; Case v. People, 6 Abb. (N. C.) 151; People v. Conroy, 97 N. Y. 62; People v. Cox, 70 id. 500; Dickerson’s Quarter Sessions, 269.)
   Daneorth, J.

The conviction is for stealing, on the 10th of March, 1885, a diamond pin, the property of one Porteous. It appeared in evidence that the defendant was engaged in the business of buying and selling jewelry, and of effecting loans upon personal property; that before the time in question there had been dealings between the parties in relation to the pin, but on that day it was in the possession and under the sole control of Porteous, who, as he testified, left it with the defendant to be sold, but, according to the testimony of the defendant, Porteous wanted him to procure a loan upon it, and did not direct a sale. It also appeared that at the police court, on the 26th of April, 1885, at an examination concerning the same transaction, Porteous was asked this question: You authorized a loan?” and answered “Yes, sir, when he” (the defendant) suggested either a loan or a sale.” Other circumstances in evidence sustain the defendant’s version, and there are some which might impair the credit of the complainant as a witness. There was sufficient evidence that the defendant did procure the loan from one Hawkins. At the close of the testimony the defendant moved for a direction of a verdict of acquittal, on the ground that the indictment charges distinctly a larceny of a certain particular pin, and the evidence being perfectly clear that the pin was left with the defendant for the purpose of procuring a loan on it, that he did procure a loan on it, acting exactly within the scope of his authority, and doing precisely what it was left with him for, he cannot be convicted under this indictment of the larceny of this pin.”

The court denied the motion, saying: “The complainant claims that there was no such authority conferred upon him,” (the defendant) that it was left with him for the nurpose of sale and not for the purpose of pledging.”

The defendant then asked the court to charge the jury as follows: “ The indictment being for the larceny of a certain pin, if the jury believe that the complainant, being the owner of the pin, authorized the defendant to obtain a loan upon it, and the defendant did actually obtain that loan from Mr. Hawkins (the witness who has testified), as authorized by the complainant, they cannot convict the defendant under this indictment of the larceny of the pin.”

The court declined to do so. The exception then taken presents the only question we think it necessary to consider. The proposition presented by the request negatived every ingredient of the offense charged, and if found in favor of the defendant would have made a conviction impossible. If the owner intended to part with the property for a special purpose, and the defendant used it only in the way prescribed, it could not be said to be stolen. -There could have been neither a false pretense nor a felonious taking on his part. It is said, however, by the learned counsel for the respondent, that the request asked too much, because it did not take in the possible intent of the defendant, £< at the time of procuring the loan,” to appropriate the proceeds to his own use. This by no means answers the exception, for if found according to the propositions of the request, it would appear that the defendant received the property lawfully and disposed of it according .to the wish of the owner, that he not only obtained the loan, but obtained it as authorized. The request might have been amplified, but it was unambiguous, and contained a proposition good in law and to the benefit of which the defendant was entitled. An omission to account for the proceeds of the loan could not, by relation, change the voluntary act of the owner in parting with the pin into a larcenous taking by the defendant, nor sustain the allegation upon which the indictment stood, that the defendant feloniously did steal, take and carry away” the property in question. There may have been a breach of trust and even fraudulent conversion of the proceeds of the loan, but that does not constitute the offense charged. The exception was well taken.

The judgment and conviction should, therefore, he reversed find a new trial granted.

All concur.

Judgment and conviction reversed.


author: Andrews, J.

text:
    Jeannette Corse, Respondent, v. Joshua S. Peck et al., Appellants.
    Parol evidence may. not be given of the negotiations which preceded or conversations which accompanied the making of a written contract, in relation to the subject-matter thereof, unless necessary to explain ambiguous provisions, the meaning of which cannot be ascertained with certainty by the inspection of the written instrument.
    By a written contract between the parties plaintiff sold to defendants two million brick, to be delivered by two vessels named, “ or other boats of equal capacity,” in case they were withdrawn, “beginning about June 1, 1886, and vessels to run. steadily thereafter.” In an action to recover for brick delivered under the contract defendants set up as a counterclaim. a breach on the part of plaintiff, and proved a delivery in June by plaintiff to other parties of a cargo of brick carried by a vessel which had been substituted in place of one of those named in the con- . tract. Over five hundred thousand brick were delivered in June. Plaintiff claimed a modification of the contract and was permitted to prove, under objection and exception, that the oral bargain preceding the signing of the contract was.for the delivery of only five hundred thousand brick each month, and that immediately after the contract was presented to and signed by plaintiff, her agent read it over a second time and called the attention of defendants’ agent to the omission of a provision limiting the delivery to five hundred thousand per month, but on the assurance of said agent that a delivery of that number would be satisfactory, nothing further was done; also, that a few days after executing the contract, upon complaint of plaintiff’s agent that it was not drawn according to the agreement, defendants’ agent stated that all the plaintiff had to do was to send five hundred thousand brick a month and defendants would be perfectly satisfied. Held error; that the evidence was inadmissible to limit the obligation of the plaintiff as stated in the written contract ; that the contract made the carrying capacity of the vessels running steadily and not a specified number of brick a month, the measure of the deliveries until the whole number should be furnished ; also, that the evidence did not tend to show a modification of the contract and so was not competent upon that issue.

      Also held, a refusal of the court to charge, that to establish a modification of the contract it must be shown that there was a new agreement made subsequent to its execution and delivery, was error.
    (Argued April 29,1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 18, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover a balance alleged to be due plaintiff from defendants for brick sold and delivered.
    The material facts are stated in the opinion.

      George S. Hamlin for appellants.
    The court erred in permitting paroi evidence of the original contract between the parties. (Cox v. Bennett, 1 Green, 167; Pallen v. Le Roy, 30 N. Y. 560; Greenl. Ev., §§ 277, 282.) The admission of evidence to reform the contract, under the circumstances, would be in disregard of all rules of pleading and evidence. (Marsh v. McNair, 99 N. Y. 180; Mott v. Richtmyer, 57 id. 59; Bush v. Tilly, 49 Barb. 599 ; Maher v. Hibernia Ins. Co., 67 N. Y. 283, 291.) The allegation of a subsequent modification of the written contract did not obviate the objections to the paroi evidence. (Greenl. Ev., § 303; Cowen and Hill’s Note, n. 985, p. 1478; La Farge v. Rickett, 5 Wend. 187; Frost v. Everett, 5 Cow. 497, 468 ; Cox v. Bennett, 1 Green, 167-8.) It is only when the language is ambiguous that the court is at liberty to arrive at the intent of the parties by construction. (2 Pars, on Cont. [4th ed.] 11; Broom’s Leg. Max. [6th Am. ed.] 456; White v. Hoyt, 73 N. Y. 512; Pitney v. Glens Falls Ins. Co., 65 id. 17; Mansion v. Cope, 28 id. 180; Justice v. Lang, 52 id. 326.)

      P. Cantine for respondent.
    Although the complaint did not ask for a reformation of the contract, yet, under the evidence, we are entitled to it, as that issue can be tried in the same action, to reform the contract and enforce it. (Maher v. Hibernia Ins. Co., 67 N. Y. 283.) Parol evidence is admissible to contradict or vary a writing where it is founded in a mistake of material facts, or if it speaks by mistake a different language from what the parties intended, this may be shown in a bill to reform the writing and correct the mistake. (1 Greenl. Ev., §§ 302, 303, 304; Horner v. Guardian Life Ins. Co., 67 N. Y. 478; Penchiser v. Phœnix Ins. Co., 65 id. 195; Clark v. Dales, 20 Barb. 64; Gilbert v. Borden, 6 Lans. 219; Van Tuyl v. West F. Ins. Co., 55 N. Y. 657; Myer v. Lathrop, 73 id. 315, 321; Albany City Sav'gs Bk. v. Burdick, 87 id. 40 ; Wearing v. Sanborn, 82 id. 604; Juliande v. Chaffee, 92 id. 529.) An agreement by paroi to modify a written agreement can be made immediately after its execution and before the parties separate. (Field v. Memn, 42 Vt. 61.) What took place before the writing was executed is proper evidence as bearing on the question of modification. (Collins v. Lester, 16 Ga. 410.) The cases holding that modification may be made by paroi have not engrafted an exception to it that it cannot apply to contracts in writing under the statute of frauds. (Clark v. Hales, 20 Barb. 43, 63, 64; Stone v. Sprange, id. 515-16 ; Keatimg v. Price, 1 Johns. Cas. 22; Young v. Hunter, 2 Seld. 207-8; Sterns v. Hull, 6 Cush. 31; McKnight v. Dunlop, 1 Seld. 537; Vincent v. Germond, 11 Johns. 283; Marsh v. Hyde, 3 Gray, 331.) If there is only a partial failure of performance by one party to a contract for which there may be a compensation in damages, the contract is not put at an end. (Franklin v. Miller, 4 A. & E. 599 ; Snook v. Fries, 19 Barb. 313 ; Sickels v. Pattison, 14 Wend. 257; Tipton v. Fetner, 20 N. Y. 423; Whithers v. Reynolds, 2 B. & A. 882.)
   Andrews, J.

The rule that paroi evidence is inadmissible to add to or vary the terms of a written contract, precludes evidence of the negotiation which preceded or conversations which accompanied the making of it in relation to the subject-matter thereof, unless necessary to explain ambiguous provisions, the meaning of which cannot be ascertained with certainty by an inspection of the written instrument. We think the trial judge in his refusals to charge, failed to properly enforce this familiar principle in the law of evidence. By the written contract the plaintiff sold to the defendants two million hard brick, to be delivered “ by barge Relief and sloop Clinton, or other boats of equal capacity, in case Relief or Climton is withdrawn, beginning about June Í, 1881, and vessels to run steadily thereafter.” The complaint sets forth the written contract, and alleges that it was subsequently modified by a verbal agreement between the parties to the effect that the plaintiff should not be required to deliver more than five hundred thousand brick per month. It then avers a delivery of five hundred and fifteen thousand three hundred and sixty-six brick prior to J une 30,1881, pursuant to the modified contract; that the defendants on that day refused to pay the balance of $945.99 then due for the brick previously delivered, except on the condition that the plaintiff would give security for future deliveries, and alleges performance on the part of the plaintiff, and demands judgment for the sum of $945.99. The defendants in their answer deny that the contract was modified, or that it had been performed by the plaintiff, and as a counter-claim allege a breach of the contract by the plaintiff in not delivering the remainder of the brick contracted for, resnlting in damage to the defendants.

It was conceded on the trial that the plaintiff delivered on the contract only the five hundred and fifteen thousand three hundred and sixty-six brick mentioned, and it was insisted in her behalf that she was excused from making further deliveries by the refusal of the defendant on the 30th of June, 1881, to pay the $945.99 except on the condition of giving security for future performance, an obligation not imposed by the contract. The defendants on their part denied that they had exacted security as a condition of making the payments required by the contract, and they insisted that under the contract the plaintiff was bound to deliver to them all brick carried by the “ Relief ” and “ Clinton,” or any vessel or vessels substituted therefor, until the whole quantity provided for by the contract was supplied, and that the plaintiff prior to the 30th of June, 1881, had broken the contract by delivering to other parties a cargo carried by the “ Carrie Gurnee' ’ a vessel which had been substituted for the “ Clinton,” withdrawn. In support of their counter-claim the defendants proved that on the 30th of June brick had advanced in price, and that up to the last of September the market price in Hew York was considerably greater than the price fixed in the contract, and that the cargo of the “ Carrie Gurnee ” was delivered to other parties. The plaintiff on the trial anticipated and sought to avoid the defense that deliveries had not been made as fast as required by the contract, by giving proof upon the issue of modification alleged in the answer. In support of this issue she was permitted to show, under objection, that the oral bargain which immediately preceded the signing of the contract, was for the delivery of only five hundred thousand brick in each month, and that immediately after the contract had been presented to and signed by the plaintiff, the plaintiff’s agent read it over a second time and called the attention of Martin, who acted in the transaction for the defendants, to the omission of a provision, limiting the deliveries to five hundred thousand brick a month; that they then figured up the capacity of the two vessels at five hundred thousand a month, and on Martin’s assurance that a delivery of that number each month would be satisfactory to the defendants, nothing further was done, or to use the language of the witness, “we let it go at that.” It does not appear that the written contract had been delivered before this conversation occurred. The oral bargain, the drawing and execution of the written contract, and the conversation alluded to took place at the same interview, the whole transaction occupying but a few moments. The plaintiff’s agent further testified that he saw Martin a few days afterward and said to him that the contract was not drawn according to the agreement, and that Martin replied, “ All you have to do is to send us five hundred thousand brick a month, and we are perfectly satisfied,” to which the plaintiff’s agent responded “ All right.”

It is clear that the oral evidence of the bargain and of the conversation accompanying the making of the written contract, was inadmissible to limit the obligation of the plaintiff thereunder to a delivery of five hundred thousand brick per month. The admission of the evidence for this purpose would be in the very teeth of the settled rule to which we have adverted. The contract made the carrying capacity of the vessels steadily employed, and not a specified number of brick per month, the measure of the deliveries until the whole number should be furnished. It is the clear import of the contract that the plaintiff should make deliveries as fast as they could be made by the designated vessels, running steadily from the time the deliveries were to commence. To engraft upon the writing the limitation indicated by the oral bargain, would be to add a new term to the written contract qualifying its plain meaning. The trial judge, in admitting the evidence, recognized the general principle of the inadmissibility of paroi evidence to vary a written contract, but put his ruling upon the ground that the evidence was competent upon the issue of modification. The evidence of what was said when the writing was executed did not per se tend to establish this issue. That a written contract may be modified by a subsequent new and distinct oral agreement, upon a new consideration, is unquestionable. (Greenl. Ev., § 303.) But the oral evidence of the bargain and of the explanation accompanying the execution of the written contract, instead of showing a modification of the writing, tends to show simply that the writing never expressed the real agreement of the parties, and that the plaintiff, knowing the coútents of the writing, assented to let it stand unaltered on the assurance of Martin that a delivery of five hundred thousand brick a month would be accepted in lieu of performance according to its terms. The evidence might, perhaps, be pertinent in an action for the reformation of the written contract, but this relief was not within the scope of the case made by the complaint, and the case was tried by the plaintiff upon the theory that the non-delivery of the cargo of the “ Carrie Gurnee ” was justified by the verbal agreement. The case was presented to the jury in this aspect. Assuming that the oral evidence of the bargain and of the conversation between the parties, contemporaneous with the writing, was competent by way of giving color and support to other evidence tending to show a subsequent modification, the court, we think, erred in refusing to charge certain propositions presented by the counsel for the defendants. He was requested to charge that what took place between the parties, previous to or at the time of the execution of the written contract, was inadmissible to vary or modify it, and that to establish a modification it must be shown that there was a new agreement made subsequent to the execution and delivery thereof. The court was also requested to charge that if the evidence, on which the alleged modification of the written contract depends, is only of what took place contemporaneously with the execution of the written contract, then no modification had been shown. The court refused to charge either of these propositions, and the counsel for the defendants excepted. We think the defendants were entitled to these instructions. The only evidence tending to show a modification of the written agreement subsequent to its execution is found in the testimony of the plaintiff’s agent, that at the interview with Martin, ten days or more after the contract was executed, Martin consented to accept a monthly delivery of five hundred thousand brick as a performance of the contract. Such consent, if given, operated until revoked as a waiver of strict performance according to the terms of the written contract. But the defendants’ agent, Martin, denied that such an interview took place. Upon this state of the evidence it was important for the defendants that the jury should be explicitly instructed as to the effect of the paroi evidence of the oral bargain and the conversation contemporaneous with the writing. That evidence, disconnected with what occurred at the subsequent interview, furnished no excuse for a non-performance of the written contract according to its terms. The trial judge in his charge nevertheless seems to have left it to the jury to determine, upon the paroi evidence of the bargain and the contemporaneous conversation, whether the contract had been modified. In this posture of the case the defendants made the requests to charge, for the purpose of sharply presenting the point, that what occurred on the day and at the time the written contract was executed did not independently constitute a modification. The claim of the counsel for the plaintiff that, assuming that the court erred in its refusal to charge, nevertheless the error was harmless, for the reason that the proof establishes that in the month of June as many brick were, delivered by the “Relief ” and the “ Carrie Gurnee” as would have been delivered by the “ Relief ” and “ Clinton,” if the latter vessel had not been withdrawn, and that the contract was satisfied by delivering in the aggregate as many brick as these vessels, steadily running, could have delivered, is not tenable. It does not conclusively appear that as many brick were delivered by the “ Relief ’’ and the “ Carrie Gurnee ” as would have been delivered by the “ Relief” and the “ Clinton” during the same time.

For the error in the refusal to charge the judgment should be reversed and a new trial granted.

All concur.

Judgment reversed.


author: Danforth, J.

text:
    Albert M. Kalbfleisch et al., Respondents, v. The Long Island Railroad Company, Appellant.
    One whose premises adjoin a railroad is not chargeable with contributory negligence simply because he took out of doors and used upon his premises an inflammable article necessary to be used in the business carried on on the premises, to which, through the negligence of the railroad company, fire was communicated by sparks from one of its engines; the mere location of the road and its use do not operate as a prohibition upon certain branches of industry in its vicinity, which may be endangered by such use.
    (Argued April 30, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the City Court of Brooklyn, made June 2-6,1884-, which affirmed a judgment in favor of plaintiffs, entered on a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for alleged negligence on the part of defendant, causing the destruction of plaintiffs’ varnish factory by fire.
    The material facts are stated in the opinion.
    The General Term held that it was not negligence for plaintiffs to carry on a varnish factory where they did as matter of law, and that as the defendant had omitted to ask to have that question submitted to the jury, and had not excepted to the charge, it could not complain.

      William J. Kelly for appellant.

      William M. Dyckman for respondents.
   Danforth, J.

The defendant, at the close of the plaintiffs’ case, moved the trial judge to dismiss the complaint on the ground “ that the taking out of the inflammable benzine was contributive negligence. Also, that there is no evidence that the fire came from the defendant’s engine.” The motion was denied, and an exception then taken raises the only question we can consider, It appeared that the plaintiff was the owner of certain buildings in Brooklyn, adjoining the tracks and station of the defendant, which he leased to one Lewis Kupper, who used them as a varnish factory. In September, 1882, the latter was engaged in making black varnish and had commenced thinning it down with benzine. It was giving off vapor. At that time defendant’s train stopped at the station to let off its passengers, “ when,” according to one witness, she started off again and commenced to puff, ” and he says, I saw a flash come from the engine right into the kettle and it was all on fire; ” “ the train had just got in front of our place when it catehed on fire.” “ I looked up,” he says, “ and the vapor was afire.” This was about one o’clock. The fire on plaintiffs’ premises had been extinguished at eleven, rand there was no fire in the neighborhood, except as it was emitted from the locomotive. That its condition permitted this escape was established by its engineer, who testified that the wire netting ” of the smoke-stack was out of order; “it was,” he says, “split lengthwise of the smolce-box about a foot and a half, and through working the engine it opened it out and made a space there, I should say, very near a foot wide and a foot and a half long — open in the netting; this netting is supposed to be a spark arrester; it is right underneath the smoke-stack on the upper part of the smoke-box, under the stack on the inside of the smoke-box; that was the only thing there was there to arrest the sparks ; I know of this engine having set fire to lots of fences and one thing and another along the road that I know of; I knew it would set fire to fences about the beginning of September or the latter part of August of the same year.”

On cross-examination by defendant’s counsel, he testified that a week before the fire he reported this break when it first occurred to the master mechanic, and after the fire it was patched up.

The effect of such a hole as I have described would be that all the sparks would come through the flues and would escape through the opening, where if the vent was closed the sparks would be arrested; I think it would increase the amount of sparks thrown largely — more.orless; it increased the sparks coming out of this engine.”

This was the condition of the case when the motion referred to was made, and it is a complete answer to it, unless the mere location and use of a railroad are to operate as an absolute prohibition upon certain branches of industry in its vicinity. By purchase such dominion might be acquired, but that is not pretended. In Fero v. Buffalo and State Line R. R. Co. (22 N. Y. 209, 215), the court found it difficult to maintain the proposition that one could be guilty of negligence while in the lawful use of his own property upon his own premises, but in the case before us the claim is advanced that the mere taking out and use of an article necessary in the manufacture carried on upon the plaintiffs’ premises, put them beyond the protection of the law. In view of the fact that no impediment was offered to the freest discharge of sparks from the defendant’s engine, and the testimony of the eye-witness that the fire causing the injury came from it, the two grounds on which the defendant sought to arrest this case were equally untenable. (Fero Case, supra; Cook v. Champlain Transportation Co., 1 Denio, 91.) The exception is, therefore,' unavailing. But the record shows that the plaintiffs afterward gave evidence, and the case was submitted to the jury in a manner satisfactory to the defendant, and, in the absence of. any request for a further charge, it must be presumed that the instructions given covered every point then thought by the defendant to be material. Ho exception other than the one above referred to was taken at the trial.

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed.


author: Rapallo, J.

text:
    Samuel Massey et al., Respondents, v. The Mutual Relief Society of Rochester, New York, Appellant.
    There is no restriction in the act of 1875 (Chap. 267, Laws of 1875), providing “ for the incorporation of societies or clubs for certain lawful purposes,” which requires, where a society is organized under it for “ mutual bdnefit ” or “ benevolent ” purposes, that the benefits or benevolence be confined to members or the families of members.
    The certificate of incorporation of defendant, a corporation organized under said act, stated its object to be “ to combine the efforts of all of its members with the view to effect mutual relief, aid and systematic contributions of benevolence and charity during their life-time, and to their respective families when rendered necessary.” The by-laws organized a system similar to that of a mutual life insurance company, the contributions of members to be applied to the payment of a gross sum upon the death of a member, to any person he may designate; if no beneficiary is designated, payment is to be made to his legal representatives. H. made application for membership, designating his wife and M., the plaintiffs herein, as the beneficiaries, the amount payable upon his death to be paid to them in specified proportions; the application was accepted and the usual certificate of membership issued in which the society agreed to make the payments as directed. In an action to recover the amount agreed upon, held, that the designation of M., who was not a member of the family of H., as a beneficiary, was not in contravention of the act or the certificate of incorporation, and that defendant was liable.

      State v. O. 0. M. B. Ass’n (29 Ohio St. 399,408), Folme-r’s Appeal (87 Penn. St. 138, 135), distinguished.
    (Argued April 30, 1886 ;
    decided June 1, 1886.)
    Appeal from a judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made the third Tuesday of November, 1884, which affirmed a judgment in favor of plaintiffs, entered upon a verdict directed by the court. (Reported below, 34 Hun, 254.)
    This was an action brought upon what is called a certificate of membership issued by the defendants to one John Hopkinson. By it, in consideration of representations made in the application, and of $6 paid as a membership fee, and of certain sums specified to be paid by Hopkinson, he was constituted a member. And on his death, after due notice thereof; etc., it was agreed that defendant’s treasurer would pay Elizabeth Hopkinson, wife of the applicant, one-fourth and Samuel Massey or his legal representatives three-fourths of one full assessment for each membership in force at such death, not to exceed $2,000. Hopkinson died January 27, 1882, and due notice was given. At his death one full assessment exceeded $2,000.
    • The defense- was that so far as the agreement was to pay to Massey, who was not a member of Hopkinson’s family, the contract was void.
    The further material facts are stated in the opinion.

      J. M. Dunnmg for appellant.
    The defendant’s articles of incorporation, providing for relief to families of members, formed part of the agreement between Hopkinson and the society, to which he assented when he accepted admission into the order. (Hellenburg v. Dist. No. 1, I. O. of B. B., 94 N. Y. 584; Ang. & Ames on Corp. [10th ed.], § 343; 1 Potter on Corp., § 74.) The society had no power or authority to issue a certificate, the whole or any part of which was to be payable to any one but the family of the applicant. ( Un. Bridge Co. v. Troy & L. R. R. Co., 7 Lans. 240; 22 N. Y. 285, 290, 291; Whitney Arms Co. V. Barlow & Co., 63 id. 70; Ashbury R. Carr. c& I. Co. v. Reehe, 44 L. J. Rep. 184; O. c& L. Cham. R. Co. v. Ver. & C. Ry. Co., 6 Sup. Ct. [T. & C.] 488.) The corporate powers of the association are limited to the carrying into effect of the purposes declared by its charter. The only beneficiaries for whom it has any power to provide are the families or heirs of deceased members. (State v. Central O. Mut. R. Asso., 29 Ohio St. 401, 403, 405 ; Ky. Mas. Mut. L. I. Co. v. Miller, 13 Bush, 494; Folmer’s Appeal, 87 Penn. St. 135.) By the terms of the agreement between Hopkinson and the society, he had no right, under the most liberal construction of defendant’s charter, to designate any one as a beneficiary, unless the latter at least, in part, composed his (the member’s) family, and the defendant had the right to suppose that Hopkinson had violated no part of the agreement, and had designated no person who did not answer to the requirements of the charter. (Hellenburg v. Dist. No. 1, etc., 94 N. Y. 585, 587, 588; Duval v. Goodson, Ky. Ct. App., 23 Alb. L. J. 479; Masonic Ins. Co. v. Miller, 13 Bush, 494; Ind. Mut. B. So. v. Clendinen, 44 Ind. 429.)

      Nathaniel C. MoaTc for respondents.
    The objection that no recovery could be had, as to the $1,500 payable to Massey, because it was not shown that he had a pecuniary interest in the life of Hopkinson, or was not shown to be a member of his family, was not well taken. (Laws of 1875, chap. 267; Laws of 1876, chap. 53 ; In re Neumaker’s Estate, 1 Del. Co. Rep. 535; Pitney v. Glens Falls, 64 N. Y. 65; 34 Hun, 256-9; Atlantic Bk. v. Savery, 82 N. Y. 307; Kent v. Quicksilver, etc., 78 id. 160, 185-7; Bider, etc., v. Boach, 97 id. 378, 381; Castle v. Lewis, 78 id. 131, 135; Whitney Arms Co. v. Barlow, 63 id. 62 ; McDonald v. Mut. Benefit, etc., 29 Hun, 87, 89, 91; Gundlach v. Germania, etc., 4 id. 339, 341; Hellenburg v. Dist. No. 1, 94 N. Y. 586; Yoe v. Howard Masonic, etc., 63 Md. 86; State v. Farmers, etc., 25 N. W. Rep’r, 81.) An insurance to be paid to one in trust for a beneficiary in whom the person whose life is insured has an interest is legal. (Olmstead v. Keyes, 85 N. Y. 593; Crawley’s Life Ins. 24, 26; Ex parte Houghton, 17 Ves. 253 ; Wyman v. Wyman, 26 N. Y. 253, 256 ; Herkimer, etc., v. Rice, 27 id. 163, 179, 180-1; Smith v. Quinn, 90 id. 492, 497-8; Lappin v. Charter Oak, etc., 58 Barb. 325, 343; May on Ins., § 111.) A creditor has an insurable interest. (Crowley’s Life Ins. 24-5, 25-6; May on Ins., §§ 76, 80, 81.) If valid when made, the fact that the interest of the beneficiary in the life ceases does not render the policy invalid. (Crowley’s Life Ins. 27, 28; Conn. Mut. L. Ins. Co. v. Schaefer, 94 U. S. 461; 7 Am. Dec. 44; Olmstead v. Keyes, 85 N. Y. 598-9; Ferguson v. Mass. Life, 32 Hun, 306, 311, 312; Hettinger v. United Brethren Mut. A. So., 1 Del. Co. Rep. 466.) If originally valid it continues so though assigned to one having no interest in the life. (Rawls v. Am. Mut. L. Ins. Co., 27 N. Y. 282, 289; Cannon v. North, etc., 29 Hun, 470, 472.) The person whose life is insured may insure it payable to any one having an insurable interest. (Baker v. Union, 43 N. Y. 287; Valton v. National, 20 id. 32; Rawls v. Am. Mut. L. Ins. Co., 27 id. 282.) If the person whose life is insured insures his own life payable to another, it'is valid though the appointee have no interest. (Olmstead v. Keyes, 85 N. Y. 593, 598, 600; Hogle v. Guardian L. Ins. Co., 4 Abb. Pr. [N. S.] 346, 349; 6 Rob. 569; Rawls v. Am. Mut. L. Ins. Co., 27 N. Y. 287; 28 Alb. L. J. 405-6; May on Ins., §§ 102, 103, 105, 107, 107a, 107b, 108,109,112, 535.) He may assign the policy to one having no interest. (St. John v. Am., 13 N. Y. 31; Valton v. National, 20 id. 32, 38 ; Olmstead v. Keyes, 85 id. 598-600; Hellenberg v. Dist. No. 1, 94 id. 585; Durrain v. Central Verein of the Hermans Sœhne, 7 Daly, 172-3 ; S. C., 94 N. Y. 586-7; Lemon v. Phœnix Life, 38 Conn. 294; Equitable Life Assurance Co. v. Patterson, 41 Ga. 365; Hellenberg v. Dist. No. 1, supra; Story v. Williamsburgh Masonic, 95 N. Y. 474.) The law does not require that the assured shall have an estate or a property in the subject of the insurance. It is sufficient that he have a direct pecuniary interest in its preservation. (Colburn v. Lansing, 46 Barb. 41; Herkimer v. Rice, 27 N. Y. 173; Lasher v. Northwestern, 18 Hun, 103; 57 How. Pr. 222; Hawls v. Am. Mut. L. Ins. Co., 27 N. Y. 289; 36 Barb. 361; May on Ins., §§ 86-7; Ætena L. Ins. Co. v. France, 94 U. S. 561.) Where, in a policy of insurance, the loss is made payable to a third person who has no interest in the property insured, but claims the insurance as collateral security for liabilities incurred for the insured prior to the insurance, he can, in case of loss, maintain an action for the insurance money, and recover in his own name. (Frink v. Hampden Ins. Co., 31 How. Pr. 30; 1 Abb. Pr. [N. S.] 343; 45 Barb. 38; Cone v. Niagara, 3 T. & C. 33, 39; 60 N. Y. 619; Lasher v. Northwestern, 18 Hun, 98, 101-2; 57 How. Pr. 222; Hogle v. Guardian L. Ins. Co., 4 Abb. Pr. [N. S.] 347; Hastings v. Westchester, 73 N. Y. 149—150; Luckey v. Gannon, 6 Abb. Pr. [N. S.] 209; 37 How. Pr. 134; 1 Sweeny, 12; Baltus v. Dobbin, 67 Barb. 507, 510.) Where the party insured sustains the loss he is entitled to recover though others be appointed to receive it. (Baltus v. Dobbin, 67 Barb. 507.) As a joint contract with several persons for the .payment to them of a sum of money is a joint contract with all, and all the payees have therein a joint interest, so that no one can sue alone for his proportion; so, the designating of the share of each will not create such a severance of interest as to sustain a several action ; but all must join in an action for the whole. (Lane v. Drinkwater, 1 Cromp., M. & R. 599 ; Byrne v. Fitzhugh, id. 613, n.; Code of Civ. Pro., § 488, subds. 5, 7, §§ 490, 498-9.)
   Rapallo, J.

The defendant was organized under chapter 267 of the Laws of 1875, entitled “ An act for the incorporation of societies or clubs for certain lawful purposes.” The purposes enumerated in the act for which societies may be incorporated under it, are quite numerous, including social, political, sporting, literary and other objects, and also “ mutual benefit” and benevolent ” purposes. The subject of life insurance is not among the enumerated objects, unless it is embraced in the term “ mutual benefit ” or benevolent.” There is no restriction in the act which requires that the benefits or benevolence be confined to members or the families of the members.

Any five or more citizens of full age may form themselves into such a corporation by making and filing the prescribed certificate, stating the name of the society and its particular business and objects, and they may adopt a constitution, bylaws and rules.

The certificate of incorporation of the defendant, which was filed April 21, 1877, states the object of the society to tie “ to combine the efforts of all its members with the view to effect mutual relief, aid and systematic contributions and charity during their life-time, and to their respective families, from time tt> time, when rendered necessary Try sickness' or pecuniary distress.” Here again there is no specific mention of life insurance nor any restriction of beneficiaries to the families of members, except when aid is rendered necessary by sickness or pecuniary distress, and from the context it is evident that this clause of the certificate treats of aid contributions to be furnished during the life-time of the members respectively. In the by-laws appears the first direct reference to any thing of the nature of life insurance. Section 2 of article 1 of these by-laws declares that the objects of the society shall bb to secure mutual benefit and protection to its members, and to furnish aid to their families or assigns in ease of a member’s death, and section 3 states that the plan of the society will be to issue certificates for a sum not to exceed $2,000, to be paid to the heirs or beneficiaries of deceased members named in his certificate, from funds arising from assessments for the payment of death claims according to the schedule of rates hereinafter adopted.” The by-laws then proceed to organize a system similar to that of a mutual life insurance company. A medical examination is required as a condition of admission to membership, an entrance fee and small annual dues are payable, and members are also required to pay assessments to meet death losses, on a scale graduated according to the age of the member at the time of his admission; and upon the death of each member, after the filing of the required proofs, the treasurer is required to pay to the legal representatives of the deceased member, or to such heirs or beneficiaries as are named in his certificate, the sum of $2,000.

There is nothing in the by-laws which requires that the beneficiaries named in the certificate should be members of the family of- the deceased member, and if no beneficiaries are designated, the payment is to be made to his legal representatives. The power of the company to create a fund for the insurance of the lives of its members is not questioned on this appeal, and we do not, therefore, discuss it. The act of 1875 authorizes the incorporation of societies for purposes of mutual benefit,” and it must be under this head that the power is claimed, to contract for the application of the joint contributions of the members to the payment of a gross sum to the legal representatives of each member, or to such beneficiary as he may designate to receive it upon his death.

There is nothing in the act which restricts the objects of the societies formed under it to the relief of families of their members. They may be formed for general purposes of benevolence and for many other objects, such as social, political, athletic, sporting, etc. Neither does the certificate of association of the defendant restrict the application of its funds to the relief of a member or his family, except where such relief is to be extended during the life of the member.

But the by-laws disclose the plan by which the society proposed to carry out the object stated in the certificate, viz.: “to combine the efforts of all its members, with the view to effect mutual relief, aid and systematic contributions of benevolence and charity during their life-time,” and this plan was to combine their contributions so as to secure mutual benefit to the members and to afford aid to their families or assigns, in case of a member’s death, by issuing the certificates of membership before referred to, whereby the payment of $2,000 was secured to the legal representatives of each member on his decease, or to such other beneficiaries as he might cause to be designated in the certificate. By this means, each member, in consideration of the sums contributed by him to the funds of" the society, became entitled to an instrument similar to a policy of insurance upon his life, and was empowered to designate the person to whom the stipulated sum should be paid upon his death. This power was a present benefit to the member, as he might use it for the purpose, not only of making future provision for some member of his family, or. some other object of his benevolence, but even to raise money to supply his own immediate necessities, and it was no concern of the society in what manner he made it available. The society could not in any event escape the payment of the stipulated sum, for if, as it now claims, the designation of a person not a member of the family of the deceased, was void the payment- would, according to the terms of the by-laws and certificate, be due to his legal representatives.

For the reasons stated we are. of opinion, that the designation of Massey as a beneficiary was not in contravention of the certificate of incorporation. That certificate did not contain the restriction which appears in the certificate of incorporation referred to in the case of State v. Central Ohio Mutual Relief Association (29 Ohio St. 399, 403). In that case, the certificate stated the objects of the association to be “ for the mutual protection and relief of its members and for the payment of stipulated sums of money to the families or heirs of the deceased members of the association.’ ’ And in Former's Appeal (87 Penn. St. 133, 135),the charter of the relief association declared, “ The object of this association shall be the relief of widows, orphans or families of deceased members.” The language in the cases cited was clearly restrictive, but in the present case, the certificate of incorporation is much more broad. It declares the object of the association to be, to combine the efforts of the members with a view to effect mutual relief, leaving the details of the plan to be provided in the by-laws, and these by-laws provided for the system of life insurance before detailed, with the power to each member to designate any person he might choose, to receive payment.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.