author: Robertson, Ch. J. Monell, J.

text:
    David Dows, et al. plaintiffs and respondents, vs. Archibald Montgomery, defendant and appellant.

      1. Merchandise is delivered, within the meaning of the statute of frauds, if sold by samples while on board of a vessel and stored by the vendors with a third person, by whom it is compared with such samples, if such acts are done at the request of the vendee.
    2. It is sufficient evidence of the acceptance by a vendee of the title to goods sold to him by sample, if he receive and retain for five days without objection measurer’s returns in favor of the vendors, and indorsed hy them to him, of the quantity of such goods, at his request, stored in the warehouse of a third person, and there compared with such sample, after the vendors had accepted an offer of such vendee to buy them on a credit of ten days, provided the latter would pay the storage during that time, and also direct such warehouseman to deposit, for his benefit, with the vendors the receipts for such merchandise given by such warehouseman in favor of the latter and indorsed by them to the vendee.
    3. The agency of the warehouse keeper for the vendee, is sufficiently established in such a case, by proof of a direction of the latter to the former to do certain acts in regard to putting such merchandise in order, and to compare it with the samples as received.
    4. Where a sale and delivery of goods are found upon conflicting evidence hy a referee, the same ought not to be disturbed to let in the defense of the statute of frauds.
    (Before Robertson, Oh. X, and Monell and Garvin, JX)
    Heard May 9, 1866;
    decided March —, 1868.
    Appeal from a judgmént entered upon the report of a referee.
    The action was brought by the plaintiffs,- composing the firm of David Dows & Co. against the defendant, Archibald Montgomery, to recover ($12,314.94) the price, (with half measuring added,) of two boat loads of wheat on board two boats, ( Wiltsie and Maria,) lying in the port of New York, sold by the plaintiffs to the defendant, at his request, on the fifth day of June, 1861, to be put in store, for account of the defendant, for ten days, at short rates of storage, (or 1J cents a bushel for ten days,) to be paid hy the latter; who was also to pay the plaintiffs $1 a bushel- within ten days of the said sale, and half the expense of measuring. "Which cargoes, immediately upon such sale, were, at the request of the defendant, sent to the warehouse of a Mr. ■Barber, at the Atlantic docks, and received by him, on the request and for the account of the defendant, to be stored 1 for his account, at 1-j- cents a bushel, for ten days. The defendant denied in his answer any contract of. sale and purchase of the said wheat 5 also that said wheat was ever delivered to or received by him, or stored on his account by his knowledge or consent; and controverted all other material allegations in the complaint. Afterwards, under an order, (made January 21, 1862,) allowing him to serve a supplemental answer, reserving all questions, until the trial, as to its sufficiency and effect, the defendant put it in, alleging that after issue joined the plaintiffs had rescinded and repudiated the contract of sale and delivery of the wheat alleged in the complaint, and, without notice or consent on the part of the defendant, sold and delivered the wheat to other parties. To which the plaintiffs réplied, denying the rescission, &c. but admitting the re-sale, &c.; leaving the defendant indebted, after crediting the proceeds, for a balance of $2117.16 with interest from 9.th September, 1861.
    All the issues in the action were referred to a referee to hear and determine.
    The following facts, in substance, were found by the referee :
    1st. The plaintiffs were partners under the firm of David Dows & Co.; and the defendant a merchant doing business under the name of Montgomery Brothers.
    2d. On the fifth day of June, 1861, the plaintiffs sold to the defendant two boat loads of wheat, in the port-of New York, (from the boats Maria and Wiltsie,) at one dollar per bushel, to be paid within ten days thereafter.
    3d. Such sale was by sample, and there was a certain quantity of such wheat at t,he time of said sale, and the delivery thereof in store, as thereinafter mentioned, to wit, 12,284^- bushels, and that the price thereof, as agreed,' including one-half measuring thereof, which by the custom and usage in the. city of New York was to be paid by the .purchaser, amounted to $12,314.94.
    4th, Such wheat was, by arrangement between the parties and at the request of the defendant, delivered to and stored with Mr. Barber for the defendant and on his account; Barber, as the agent and at the request of the defendant, received such wheat for him and compared the same with the samples; and the bulk was proved by Barber to, and did in fact, correspond with them.
    5th. The measurer’s returns of such wheat, without any instructions from any one, were sent to the plaintiffs, as vendors, as is usual, and immediately within four days after the sale indorsed by them and sent to the defendant. Such indorsement and delivery of the said returns was evidence of the defendant’s title to such wheat, and his right to the possession thereof; such returns were returned to the plaintiffs with notice that the defendant would not take the wheat, on the fourteenth day of June, 1861. ■
    6th. Warehouse receipts signed by Mr. Barber, soon after such delivery of such wheat, without instructions or directions from any one, were made out in the name of the plaintiffs, and on being brought to them by Barber were indorsed by them and re-delivered to him, with a request that he would deliver them to the defendant as the rightful owner of the wheat. He offered them in the street to the defendant, who requested him to leave them with the plaintiffs, as he could not take the wheat away for some days, and the same were accordingly so left with the plaintiffs for the defendant and at his request.
    7th. The defendant bought such wheat for shipment and exportation; and the plaintiffs had reason to suppose, and did suppose, that he intended to export the same. It was not in good condition for shipping; but wheat in the same condition was being shipped and exported from Hew York at that time.
    8th. On the 14th day of June, 1861, the defendant repudiated the contract and refused to pay for the wheat or regard it as his or in his possession, upon the ground that the wheat was not in good condition or fit to export, or such as the plaintiffs had agreed to deliver. '
    9th. In August, 1861, after the joining of issue in this action, the plaintiffs applied to the defendant to direct as to the disposal of the wheat for account of whom it might concern, and without prejudice to the legal rights of the parties; the defendant declined to do so; the plaintiffs thereupon, after giving notice to the defendant that they would sell the same for account of whom it might concern, (the defendant making no objection thereto,) sold the same for the highest price that could be got therefor, and for the full market value of such wheat at that time, and received as the net avails of the said sale, the sum of $10,373.04, leaving due to the said plaintiffs, on the ninth day of September, 1861, $2117.16.
    10th. An account of such sale was rendered to the said defendant on the 9th' day of September, 1861. At the time of such sale such wheat was depreciating in quality, value and price. The sale was made to protect the interest of all concerned; and in the transaction the plaintiffs expressly reserved all the rights under the contract for the sale of such wheat to the defendant and did not rescind the same.
    The following were the referee’s conclusions of law:
    1st. That the contract of sale from the plaintiffs to the defendant was fully executed by the delivery of the wheat to and the acceptance thereof by, the defendant.
    2d. That at the expiration of ten days from the said day of sale, the defendant became liable to pay to the plaintiffs the purchase price of the said wheat,' and one half the weighing thereof.
    3d. That by the sale of such wheat the plaintiffs did not rescind the contract or abandon the sale to the defendant, but insisted upon and affirmed the same.
    4th. That the defendant was entitled to be allowed as a counter-claim or set-off in this action the net avails or proceeds of the said sale so made by the plaintiffs.
    5th. That there was justly and legally due the plaintiffs from the defendant, on the 9th day of September, 1861, the sum of $2117.16 over and above the amount realized upon the sale of such wheat by the plaintiffs; and said sum, with interest, was still due the plaintiffs; and they were entitled to recover the same of and from the defendant, with costs of this action.
    Judgment being entered accordingly, the defendant appealed.

      J. IS. Jenness, for the appellant, defendant.
    I. Upon the facts in the case,- no valid contract of sale of the wheat in question was made, under the statute of frauds. There having been neither contract in writing, nor part payment, the only question remaining upon this subject, is, whether the evidence has established an acceptance and receipt of the wheat by the defendant.
    1. So far from accepting and receiving the wheat, the defendant, from the beginning to the end, resolutely resisted any acceptance and receipt of it, actual or implied. When the warehouse receipts were tendered to him, he at once refused to accept and receive them. ■ When the measurer’s returns were sent to him, he also refused to accept them, and returned them as soon as he ascertained that the plaintiffs persisted in delivering wheat in bad shipping order. When the wheat itself was shown him, he at once rejected it, as not the kind of wheat he bought.
    2. Moreover, as to the indorsed receipts and returns, even though the defendant had actually accepted and received them, such an acceptance and receipt of those documents, is not such an acceptance and receipt of the wheat itself, as satisfies the statute of frauds. Such documents amount only to orders on the warehouseman; until such orders are actually presented by the purchaser to the warehouseman, and the goods are, in obedience to them, actually transferred, into the name of the purchaser, no acceptance and receipt of the goods is.made out under the statute of frauds. (Farina v. Home, 16 M. & W. 119. Bentall v. Burn, 3 B. & C. 423. Lackington v. Atherton, 7 M. & Gr. 360. McEwen v. Smith, 2 House of Lords Cases, 309. Tanner v. Scovell, 14 M. & W. 28. Hunt v. Hecht, 30 Eng. L. and Eq. 524. Carter v. Touissant, 5 B. & Ald. 855. Bill v. Bement, 9 M. & W. 36. Ives v. Polak, 14 How. Pr. 414. Shindler v. Houston, 1 Comst. 261. Outwater v. Dodge, 7 Cowen, 85. Langeman v. Stevens, 5 N. Y. Leg. Obs. 19. Ely v. Ormsby, 12 Barb. 570.)
    II. The statute of frauds is not satisfied by reason of any words or acts of the warehouseman, (Barber.)
    1. He was not appointed the defendant’s agent' to accept and receive the wheat, or to store it on the defendant’s account. The most that can be claimed, from the testimony of Dows and Barber, (treating .it as uncontradicted,) is, that the defendant requested Barber to screen and blow the wheat, and to see that it corresponded to the sample, when he took it into store. The operation of screening and blowing was to be done, whether the wheat was in good or bad condition, and in no way establishes an acceptance of the wheat by either the defendant or Barber. It had no more effect upon the question of acceptance, than a request that Barber should hoist it out of the boats. As to the pretended request, that Barber should see that the wheat corresponded to sample, he had no power to reject the wheat under any circumstances.

    2. Moreover Barber failed to make the requested examination, at the time he took the wheat into store.
    3. But, an entire answer to this attempt to charge an accentance and receipt of the wheat on the defendant, by virtue of an alleged acceptance and receipt of it by Barber, on the defendant’s account (even admitting that Barber was duly appointed the defendant’s agent for that purpose,) is to be found in the consideration that Barber did not, in fact, accept and receive the wheat for account of the defendant. (a.) On the contrary, he' accepted and received the wheat into his warehouse, on -account of the plaintiffs. The wheat was at all times stored in their name. (b.) 'Measurer’s returns were made out, and warehouse receipts issued by Barber in the name of D. Dows & Co. but so cautiously worded for the preservation of the property, lien, and possession, of the plaintiffs in the wheat, as to be expressly stamped “ non-negotiable.” (c.) Could it be contended that, from any. thing that had been done by either Barber or the defendant, by way of acceptance and receipt of the wheat, the plaintiffs had lost their right of lien for the price, in the event of the defendant’s insolvency?
    4. The subsequent sale and delivery of the wheat in question on August 15 to third parties, having been made by the plaintiffs without any re-transfer' or re-delivery from the defendant, and without any authority from the defendant, is conclusive evidence that the plaintiffs had at all times retained the actual and exclusive possession, and control -of the property, and is utterly inconsistent with any acceptance and receipt by the defendant, or his agent. The plaintiffs’ original possession of the grain, is thus conclusively shown to have never been disturbed.
    5. Indeed, such subsequent sale and delivery to third parties, has been well set up in our supplementary answer, as a lar to the further maintenance of this action for the sale and delivery of the wheat to the defendant. Only an action for goods bargained and sold could be brought, after such an event; and obviously the latter action could not be maintained, under the present circumstances, under the statute of frauds.

      C. Van Santvoord, for the respondents, plaintiffs.
    I. The facts found by the referee, being supported by sufficient evidence, notwithstanding conflicting testimony as to circumstances of the sale and delivery, the finding of the referee should be held to be conclusive. (Osborn v. Marquand, 1 Sandf. 457. Mann v. Witbeck, 17 Barb. 388. Mazetti v. New York and Harlem Railroad Company, 3 E. D. Smith, 98. Heritage v. Hall, 33 Barb. 347.)
    H. The delivery of the two cargoes of wheat, on the 5th June, 1861, the day of the sale, at the warehouse of a third party, pursuant to the arrangement between the parties, and at the request of the defendant, to.be stored with such warehouseman for the defendant and on his account, and the receipt by the former, as the agent of and at the request of the latter, of the wheat, for him, and such agent’s apqiroval of the bulk as corresponding with the samples by which the wheat was sold, (with which it did in fact correspond,) followed by the indorsement and delivery of the measurer’s (weigher’s) returns within, four days after the sale, to the defendant, was a sufficient delivery to pass the title, (either without or with the aid of the indorsed measurer’s returns,) and a sufficient acceptance and receipt of the wheat within the statute of frauds; notwithstanding the return to the plaintiffs of the measurer’s returns, and the repudiation by the defendant of the contract on the 14th of June, The very delay in the repudiation of the contract for so long a time after the delivery at the warehouse from the 5th to the 14th June, was of itself sufficient evidence of acceptance by the defendant, within the provisions of the statute in that behalf. In 2 R. S. 136, § 3, subd. 2, “ actually ” is omitted; the reasons of this omission will be found in revisers’ note to this section (3 R. S. 2d ed. 657.) (Hollingsworth v. Napier, 3 Caines, 182,185, and cases cited. Searle v. Keeves, 2 Esp. 598. See also Elmore v. Stone, 1 Taunt. 458; Wilkes v. Ferris, 5 John. 335, 344; Gray v. Davis, 6 Seld. 285; Outwater v. Dodge, 6 Wend. 397, 402; The People v. Haynes, in Court of Errors, 14 Wend. 546, 562.) .More particularly as to requisite acceptance. (Morton v. Tibbett, 15 Adol. & Ellis, N. S. 428. Bushell v Annaman, 15 id. 441. Spencer v. Hale, 30 Verm. Rep. 314. Hunt v. Peck, 20 Eng. Law & Eq. 524.)
    HI. As to the defendant’s objection that the sale was rescinded by the resale after issue joined in the action, there is no ground for it. The defendant did not authorize the resale; that was not required, because it might have involved an admission inconsistent with the proposal to resell without prejudice to the rights of either party, as claimed at the time of such resale. But the resale was made on notice to him, and with his assent that it should be so sold without prejudice, necessarily implied by his not objecting to such resale, nor to the accounts rendered on such resale in which the proceeds are applied on account of the defendant’s purchase. {See Cairnes v. Bleecker, 12 John. 300.) Although the defendant raises this objection by exception, he does not except to the allowance by the referee of the,proceeds of the resale to him, and the credit thereof to him.
    IV". There being no allegation in the answer that the plaintiffs warranted the wheat in question to be in good condition for shipping, or request in the case to the referee so to find, or any thing in the evidence as presented in the case, to warrant such finding, the exception for not so finding, is not well taken. The case was a sale of wheat not in good condition for. shipping, but in the same condition as wheat then being shipped and exported from New York, of which the bulk was as good as the samples by which it was sold.
   Robertson, Ch. J.

The main if not only question presented in this case is, whether there was a sufficient delivery of the wheat in question by the plaintiffs to the defendant to take the case out of the statute of frauds. It was originally on board of two vesssels, (The Wiltsie and Maria,) when the negotiations for the sale of it commenced between the parties. After their close it was removed by agreement’ between the parties from on board of such vessels to a warehouse belonging to a Mr. Barber, which had a grain elevator attached. The referee found that such wheat was sold by the plaintiffs to the defendant by sample, and was “ by arrangement of the parties and at the request of the defendant, delivered to and, stored with Mr. Barber, for the defendant and on his account,’’ And that “Barber, as the agent of and at the request of” the defendant, received such wheat and “ compared it with the samples,” with which the bulk corresponded. This of course is decisive of the question of delivery within the statute of frauds, if sustained by the evidence.

One of the plaintiffs (David Dows) testified that in June, 1861, (5th) after a first ineffectual attempt at a sale to the defendant he spoke to him again about the wheat, in the Produce Exchange, in New York, where he had samples on a table. The defendant offered to give a dollar a bushel for it, but did not pay it for ten days, and said that he would take it at that price “ at short rates ” (being less than full) storage, or 1J cents for ten days. The plaintiff Dows then said he would sell it, on those terms, provided 'the defendant would pay the expense of the storage. The plaintiffs then having agreed with Barber to take in the wheat, at the short rates of storage, brought him to the defendant, and informed the latter of that agreement. “It was then arranged that Barber should take the wheat in for account of the defendant.” One of the parties ■ gave the samples of the wheat to Barber. The defendant told him to see that the cargoes were like the samples when they went in. On the same day the wheat was taken into Bai> ber’s store.

According to the findings of the referee, upon the delivery of the wheat in such store, receipts therefor, in the name of the plaintiffs, by Barber, were indorsed by the former, with an order to deliver the same to the defendant, and redelivered to Barber, with a request to deliver them to the defendant, to whom he offered to deliver them, but at the request of the latter, because he could not take the wheat .away for some days, he left it with the plaintiffs for the defendant. This was testified to by the plaintiff Dows and by Barber.

According to the same findings of the referee, such wheat being in store was measured by a measurer, who sent his return, according to the custom, to the plaintiffs, as vendors, who, within four days after the sale, indorsed and sent them to the defendant. The latter retained them for five days, and then returned them to the plaintiffs, with notice that he would not take the wheat. The possession, by a vendee, of such a return, so indorsed by a vendor, according to the course of business of such trade, enables the former to procure the bill of lading, or a warehouseman’s receipt in his favor. The referee therefore found, perhaps as matter of law, that such indorsement and delivery of the return, was evidence of the defendants’ title to the wheat, and right to its possession. The facts in regard to the delivery of the return and its effect, were testified to by the plaintiff Dows and by Barber, and were, undoubtedly, sufficient evidence of acceptance by the defendant. (Outwater v. Dodge, 6 Wend. 402. Spencer v. Hale, 30 Verm. Rep. 314. Morton v. Tibbett, 15 Ad. & El. N. S. 428. Bushell v. Wheeler, Id. 441.)

Mr. Barber further testified that the defendant told him “to take in the wheat, screen and blow it, and see that it was like the two samples, that were in the.two boxes that were handed” to him at the time. And that he' subsequently compared the bulk with the samples. This, undoubtedly, was a recognition of him by the defendant as his agent. '

Upon such evidence, the referee found the sale and delivery to the defendant of the wheat in question. The testimony of Barber, and the retention by the defendant of the measurer’s returns for five days, without objection, corroborated the statement of the plaintiff Dows. • Against this was opposed only the denial of the defendant. Even he, however, admitted the purchase, but with .the proviso of only receiving it at the end of ten days, and with an agreement. to pay half storage. After seeing the wheat, and receiving the bills and returns, he sent an official measurer to examine the wheat, and then wrote a letter refusing to receive it, because “not according to the quality represented.”

Under these circumstances, and with such a conflict of evidence, the findings of the referee, as to the delivery of the wheat, must be considered as final, (Osborn v. Marquand, 1 Sandf. 457; Mann v. Whitbeck, 17 Barb. 388; Heritage v. Hall, 33 id. 347,) and, therefore, the contract was not governed by the statute of frauds. The only two facts militating against this conclusion were the entry of the wheat in the warehouse keeper’s books, as received from the plaintiffs, and his receipt to the same effect, and the re-sale of the wheat by the plaintiffs. The first is fully explained by the custom of the business, the indorsement of such receipt to the defendant, and his retaining the same. The second may have been some evidence of the sale never having taken place, but the referee disposed of its effect as such with the other evidence, and it could not have disproved both the sale and its recission.

The subsequent re-sale of the wheat by the plaintiffs was expi’essly declared by them, in their notice to the defendant, not to be a rescission, but to be a sale on account of the defendant. Whether they are liable or not for a conversion of it, in resuming possession of it and selling it, could not be tided in this action. The amount recovered is less than the price of the wheat.

The judgment appealed from should therefoz’e be affirmed, with costs.

Garvín, J. concurred.

Monell, J.

I concur in the opinion of the1 Chief Justice, that the evidence of delivezy and acceptance of the wheat, was sufficient to bring the case within the exception contained in the statute relative to fraudulent contracts for the sale of goods, &c. and that the judgment should therefore be affirmed. But I do not think it was necessary to examine that question upon this appeal. It nowhere appears that the objection was taken on the trial that the contract of sale was void. In the motion for a nonsuit no ground, therefore, was stated, and it does not seem that the attention of the plaintiffs, or of the referee, was at any time directed to any such objection. It is too late to take the objection for the first time now.


source: Caselaw Access Project

author: Barbour, J. Garvin, J. McCunn, J. (dissenting.)

license: Public Domain

text:
    William Butler Duncan et al. plaintiffs and appellants, vs. Jacob Berlin et al. defendants and respondents.
    1. To an action brought against parties who were the plaintiffs in a suit in which an attachment was issued, to recover back money paid by mistake by third persons (not parties to such suit, but notified of such attachment) to the sheriff, under an erroneous belief that the same was due from them to the defendants in such suit, the sheriff is a necessary party; (being bound to contribute towards the repayment of the amount so paid to him by mistake, whatever sum he retained beyond his legal charges,) so that an accounting may be had between the plaintiffs in such attachment and the sheriff. The defendants in the attachment suit are also necessary parties to such action.
    2. Where persons indebted to defendants in an attachment suit, by mistake pay to the sheriff, upon the attachment and execution, on account of such indebtedness, a larger sum than is owing by them, which is paid over by the sheriff to the plaintiffs in the attachment, not as coming from such parties, but as proceeds of the property of the debtor levied on, such parties cannot recover back the excess in an action against the attaching creditors; there being no privity of contract, implied or otherwise, between the parties to such an action.
    3. Where there is a loss in consequence of the mistake of persons paying over money to the sheriff, and the consequent omission of the sheriff to levy upon other property of the defendants in the attachment suit, who subsequently become insolvent, such loss, having been occasioned wholly by the mistake of such parties, and a want of ordinary caution and care in making . up and keeping their accounts, ought in equity to be sustained by them, and not by the plaintiffs in the attachment.
    (Before Robertson, Oh. J., and Garvin and McCunn, JJ.)
    Heard October 21, 1867;
    decided January —, 1868.

      Appeal from a judgment entered upon findings of law and fact, made by Justice Barbour, on the trial before him, without a jury, on the 22d of July, 1867. The action was brought to recover $1000 for money paid, by mistake,'to the sheriff, under an' erroneous belief that the same was then due from the plaintiffs to a person who was a defendant in an action in which an attachment had been issued in favor of the defendants, as plaintiffs, which had been paid over by the sheriff to the latter on an execution issued in the same action. The cause was tried without a jury.
    On the 16th of January, 1866, the plaintiffs, who were merchants and bankers, held in their hands certain articles . of merchandise consigned to them for sale by the firm of Blagge & Co: to whom, at the same time, they were actually indebted for the proceeds of former consignments and drafts, only about $900. But, owing to an erroneous credit to such firm of $1000 on the plaintiff’s books, they showed a balance in favor of Blagge & Co. of about $1900, instead of the true amount 'of $900. On that same day, an action was instituted by the defendants in this action, as plaintiffs, against Blagge & Co. upon a claim of about $1600, and an attachment was therein issued to the sheriff. A deputy of the latter thereupon called upon the plaintiffs in this action, gave them notice of the attachment., and requested them to inform him what property or assets, belonging to Blagge & Co..were in their hands; in reply to which, the plaintiffs stated that there was then a balance due to Blagge & Co. from them, of about $1900. No certificate, however, was required by the sheriff, or given. A judgment was subsequently recovered in the action against the firm of Blagge & Co. for $1730.17, and on an execution issued upon such judgment, the plaintiffs herein paid to the deputy sheriff, in May, 1866, and before the discovery of the error upon their books, the sum of $1924.31, as money in their hands belonging to the defendants in such execution, for which 'the sheriff gave the plaintiffs a receipt as follows:

      “ Supreme Court. Jacob Berlin vs. Hamilton Blagge et al. Received, New York, June 2, 1866, from Messrs. Duncan, Sherman & Co. §51924.33, in full for proceeds of sale, the said money being attached January 16, 1866, in the hands of Duncan, Sherman & Co. and paid over by them under protest.
    Received payment,
    Thomas Fearing, Deputy Sheriff.

      Per David Mbelio, Deputy Sheriff.”
    The sheriff paid to the plaintiffs in that action, (the defendants here,) the amount of their judgment, retaining the balance for fees, poundage, &c. and returned the execution satisfied, Blagge & Co. were then, and still are, insolvent.
    The following opinion was given by the justice before whom the action was tried.
   Barbour, J.

As the sheriff retained in his hands much more, out of the gross sum received by him from the plaintiffs, than he was entitled to if the $1000 is to be returned as not properly collected, and as the defendants, therefore, will not, in that case, have been paid out of such aggregate sum, the whole amount they have a right to claim, it is quite apparent that such sheriff is a necessary party to any suit brought by the plaintiffs for the recovery of the $1000 so paid to him by them, through mistake, in . order that he may be compelled to contribute, for such portion of that sum as he still retains in his hands. Certainly, if that $1000 was not properly collected on the execution, he was not entitled to poundage upon it; .but such poundage, being a part of the aggregate sum collected, and, therefore, of the $1000, should be contributed, in some- form, by the sheriff, to the repayment to the plaintiffs, if they are entitled to recover. Indeed, the case maybe stated thus. The whole amount collected by the sheriff was $1924.31, out of which he paid to the plaintiffs in the execution $1730.17, and retained $194.14, which never reached the hands of such plaintiffs. How, in case the $1000 are to be returned, the latter willbe entitled to the balance of the sum collected,- or $924.31, less the legal fees and charges of the sheriff. Whatever sum that officer has retained, therefore, beyond' his legal charges, and which never came to the hands of the defendants in this action, should be contributed by him towards the repayment of the $1000; and in order to ascertain whát that sum is, and thus to determine the amount with which, if any, these defendants are properly chargeable, an accounting should be had between them and the sheriff in this action.

I am also of opinion that Blagge - & Oo. are necessary parties, and that the action cannot properly proceed to a judgment in favor of the plaintiffs without them. For, nthe plaintiffs, by negligently paying over the money as the property of Blagge & Go: have'caused the execution to be satisfied and the judgment discharged; and such satisfaction and discharge are valid and conclusive, if that firm then had in the hands of these plaintiffs a sum equal to the amount paid to the sheriff; and so, pro tanto, as to any lesser amount. But, on the contrary, if it should be decided that the $1000 was paid by mistake, and must be returned by the defendants here, they would be equitably entitled to have the return of the sheriff upon the execution amended and reformed, and the judgment, to that extent, reinstated. Blagge & Oo. therefore, have not only a like interest with the defendants in reducing the amount of the plaintiffs’ claim, but, as the parties ultimately-liable, a still greater one.

It is true, that a judgment here in favor of the plaintiffs, may not so determine the rights of the defendants in this action and Blagge & Co. as to preclude the latter from showing, on a motion to reinstate the-judgment, that they were the real owners of all the funds paid over to the sheriff by Duncan & Oo., and, thus, to defeat such motion. But, for that very reason, they are, in equity, necessary parties. For the action, whatever may be the form of the pleadings, is, essentially, a suit founded upon the equitable right of the plaintiffs to be relieved from the consequences of their own mistake. It is, therefore, their duty, in the bringing and conduct of this action, while thus seeking equity, to afford every reasonable facility to the defendants that is necessary to place them in as good a position as they occupied prior to the making of the mistake. That may be done, "to some extent, by compelling Blagge & Co. to interpose such a defense in this action as they may set up, and, perhaps, successfully, in opposition to a motion to reform the returns or vacate the satisfaction of the judgment. The defendants are, equitably, entitled to the benefit óf that defense here ; and ought not to be compelled to submit to a double litigation. «*

But, upon the merits, and without regard to the question of the omission of necessary parties, I am satisfied that the plaintiffs have no valid cause of action against the defendants founded upon the facts set forth in’the complaint, and established upon the trial. For, the defendants are not shown to have received any money, or its equivalent, from the plaintiffs, either paid in mistake, or otherwise. But, on the contrary, the sheriff, having levied upon the property of Blagge & Co. then in the hands of the plaintiffs, by virtue of the attachment and execution, and having collected the money as he was commanded in the latter process, paid the same over to the persons entitled to it, not as coming from Duncan & Co., but, as the proceeds of the property so levied upon; and it was so received by the defendants. I can see no difference between a levy of this character, and a payment of the proceeds to the creditor in the execution, and a levy upon and sale of merchandise, with such payment over of the proceeds; and, certainly, if Duncan & Co. had delivered merchandise to the sheriff as property in their hands belonging to Blagge & Co. instead of giving their check for the money held by them, and should subsequently ascertain that they had, by mistake, só delivered their own property, they could have had no claim against the creditors in the execution by reason of the receipt by the latter, from the sheriff, of the proceeds arising from the sale of such property. In neither case would there be any privity of contract, implied or otherwise, between the parties to such an action, whereby such creditors would be bound to return to Duncan & Co. the proceeds of the execution. In no sense, was the money, in this case, received by the defendants from the plaintiffs. But it was recovered from the judgment debtors of the former, by due process of law, as the proceeds of the property of such debtors, and, for that reason, cannot be recovered back by Duncan & Co.

The claim of the plaintiffs is most inequitable. The evidence shows that when the sheriff called upon them with his attachment, Blagge & Co. had merchandise in their hands, as well as the moneys or credits in question, and also had other property, within the jurisdiction of the sheriff, and upon which he might have levied, and that, during the lives of such attachment and the execution, other property of the latter firm came to the hands of the' plaintiff’s, and was .disposed of by them, to an amount exceeding $2000. The declaration of the plaintiffs that they held moneys belonging to Blagge & Co. more than sufficient to satisfy such attachment, and their undertaking, or obligation, to pay over such moneys, it may safely be assumed, precluded the necessity for such further levy by the sheriff, as it woúld have been his duty to make, had not such statement been made; and as the judgment debtors are utterly insolvent, it follows that if the defendants here were to be compelled to return to the plaintiffs the $1000 so paid to the sheriff, that sum would be irretrievably lost to them; and that, too, not by their own fafilt or negligence, but by that of the plaintiffs. The ultimate loss, then, being quite certain, and having been occasioned wholly by the error of the plaintiffs, ought, in equity, to’ be sustained by them, and not by the defendants.

The complaint must be dismissed, with costs.

Wm. D. White, for the appellants.

I. The statement of facts found by the court,. and the findings of law thereon, show that the court has failed to give due legal effect to the terms of the receipt, which was given by the sheriff) as agent for the defendants, and overlooks, first, that the money was seized under attachment; and, second, was paid over by Duncan, Sherman & Go. under protest against the right of the defendants to attach the same.

Such seizure and payment precludes all idea of its being a voluntary payment, and subjects the party accepting to all equities for reclamation and re-payment; in fact, the receipt is an equitable agreement by the defendants to refund on demand, on any cause being shown why they were not entitled to it. (Murray v. Binninger, 33 How. 425.)

IT. It is conceded that the money was paid by the plaintiffs by mistake, and in ignorance of the fact that there was a mistake in crediting the $1000 in the account to Blagge & Co. (Renard v. Fiedler, 3 Duer, 318. Utica Bank v. Van Gieson, 18 John. 485.) The well settled rule of law is, that “ to deprive a party of his action for money paid voluntarily, beyond what is due, on the ground of knowing it was not due, it must appear that it was paid with a full knowledge that it ought not to be paid.” (Waite v. Leggett, 8 Cowen, 195. Watson v. Cabot Bank, 5 Sandf. 423.)

III. The objection of the want of parties (the sheriff and Blagge & Go.) cannot be sustained oh the answer.

1. The answer does not object for want of those parties. {Code, § 148.)

2. The sheriff" having paid over the money to the defendants the-sheriff has no legal interest, nor have the defendants any interest in the amount retained by him for fees, which, if the plaintiffs. have any right to reclaim, the defendants cannot object, if the plaintiffs have elected to waive their claim on either of them for that amount. (Frye v. Lockwood, 4 Cowen, 454.) It has been held that no inter-pleader could have been brought by the plaintiffs as be- ' tween the defendants and Blagge & Co. to settle their claims as to property attached before payment over to the sheriff. Still less is the case altered after payment. ( United States Trust Co. v. Wiley, 41 Barb. 477.)

Judgment of dismissal being entered accordingly, the plaintiffs appealed.

3. It is not pretended by the defendants, in their answer or otherwise, that Blagge & Co. have any interest in the $1000, or that- they set' up any claim to any part of it. (Lewis v. Graham, 4 Abb. 106.)

4. If there was any foundation for the objection, the Code (§ 122) declares “ the court must cause them to be brought in.” (Davis et al. v. The Mayor, &c. 2 Duer, 663-666. Wright v. Storrs, 6 Bosw. 600; 29 Barb. 9.)

IV. The defendants áre not prejudiced by the return of their execution against Blagge & Co. who, moreover, are not shown to have had any other property in this state. It does not require a suit by interpleader to enable the defendants to obtain what is to be properly gained by the ordinary motion to correct the sheriff’s return, indorsed on the execution, as frequently occurs when a suit has been brought either against a plaintiff or sheriff, or both, for selling property which does not belong to a defendant, and for which the plaintiff is often required, by judgment, to pay the real value of property so illegally sold, with damages; oftentimes double the amount actually received on an illegal sale.

V. The judgment should be reversed, and a new trial ordered.

1. On the ground that the judgment is against law.

2. That it was improper to admit the declarations of clerks to bind the principal. The representation of the plaintiffs’ clerks, either that there was or would probably be enough collected by the plaintiffs to pay the defendants’ attachment, seems to have been honestly made, and was, at best, a mistake, and made without knowledge of the erroneous credit

F. 0. Oantine, for .the respondents.

I. The plaintiffs sought in this action, to be relieved from the consequences of á mistake made by them in their accounts with Blagge & Co. The rules of law which prevail in cases of mistake, require the mistake to be clearly proved, mutual, and relating to facts in respect to which both yarties were equally bound to inquire.

1. One who has knowledge, or the means of knowlege, of the facts, cannot recover money paid under a mistake of such facts.

2. Even where a mistake has actually occurred, in the payment of money, there can be no recovery, if the condition of the party to whom the money was paid, has so changed, since such payment, that he would, suffer injury if compelled to refund it.

3. A party cannot be relieved from a mistake if he could, by reasonable diligence have acquired knowledge of it,” when put upon inquiry. (Elting v. Scott, 2 John. 157. Taylor v. Beavers, 4 E. D. Smith, 215. Kent v. Manchester, 29 Barb. 595. Botsford v. McLean, 45 id. 479. Story’s Eq. vol. 1, §§ 146, 150, 151.)

4. It is not claimed that the alleged mistake was mutual or common to both parties; nor that the sheriff or the defendants, had any knowledge, or the means of obtaining knowledge, of the state of accounts, between the plaintiffs and Blagge & Co.

JX Those cases in which parties have been permitted to recover money paid under a mistake, have arisen between debtor and creditor, where both parties were presumed, and therefore bound, to know how much was due. There was no mistake on the part of the defendants; the amount due to them had been judicially determined.

III. The payment made by the plaintiffs was voluntary. They at the most, merely paid the debt of another, and can only recover from those whose debt they paid. There was ' no duress or compulsion, and they gave no certificate to the sheriff when served with the attachment, or at any other time. For months after the attachment was served on them, they gave the sheriff their check without hesitation or objection.

IV. In addition to the fund out of which this payment was made, the plaintiffs, during the lives of the attachment and execution, had. other property of Blágge & Co. in their .possession, upon a sale of which they realized upwards of $2000.

V. The conduct of the plaintiffs equitably estops them from maintaining this action. They repeatedly told the sheriff and. the defendant’s attorney, that they had sufficient property in their hands belonging to Blagge & Co. to pay the. claim of the defendants; and the sheriff thereupon abandoned further pursuit of other property. After receiving payment from the plaintiffs, the sheriff- returned the execution “ satisfied,” and the judgment was thereupon canceled and satisfied.

1. The consequence was, that the defendants lost any lien they might have had ujson the property of Blagge & Co. and the rights of subsequent creditors of that firm immediately attached.

2. The facts of this case are clearly within the principle of Dezell v. Odell, (3 Hill, 216 ;) Rigney v. Smith, (39 Barb. 383;) People v. Reeder, (25 N. Y. Rep. 302,) citing and, approving Dezell v. Odell, supra; Manufacturers’ Bank v. Hazard, (30 N. Y. Rep. 230,) where an equitable estoppel is defined.

VI. The plaintiffs virtually turned over to the sheriff, property of Blagge & Co. upon which he levied, and paid the proceeds "to the defendants. They were receiptors within the case of The People v. Reeder, cited above..

VH. The latter part of the receipt given by the deputy sheriff to the plaintiffs, dated June 2,1866, stating that the money was paid under protest, does not, for obvious reasons, furnish any protection to the plaintiffs.

1. It was not given until June 2, whereas, the principal sum ($1861.31,) was paid to the sheriff May 23, and by him to the defendants the next day, ten day before, without protest or reservation, and was sufficient to pay the defendants’ claim and sheriff’s fees.

2. The deputy had no right to give such a receipt, and neither the sheriff nor the defendants can be concluded by it, assuming that it has any force whatever. It was not the act of John Kelly, the sheriff, nor of the defendants, but of one Ferris, by his agent Mealio. It was given eight days after the sheriff had paid the money to the defendants, and their attorney had satisfied the execution.

3. The language of this portion of the receipt is obscure, the word “ protest,” as used in that connection, has no legal significance.

4. Upon its face, the receipt is “for the proceeds of sale,” attached four months before, and this reference to a “ sale,” when taken in connection with the evidence, shows clearly that the money paid, was the proceeds of a sale of the property of Blagge & Co.

5. The ground of this action is mistake. Now, if the plaintiffs paid the money voluntarily, erroneously supposing that they were paying the money of Blagge & Co. why should they “pi’otest?” If, on the other hand, they knew they were not paying the money of Blagge & Co. there was no mistake, but a deliberate, voluntary act.

VIII. There is no privity of contract between these parties.

IX. The court below properly held, that the sheriff and Blagge & Co. were necessary parties to this action. The rights of Blagge & Co. were involved in the determination of the case, and their presence was essential. A judgment for the plaintiffs would virtually have been an adjudication, that the judgment against them had not been paid, and as such a judgment would not bind Blagge & Co. another litigation between them and the defendants, would be necessary before the question could be finally settled. The sheriff received a part of this money for his fees, and $63.02 paid June 2,1866, which he was not required to, and did not collect for the defendants, as the amount paid May 23, 1866, was sufficient to, and did satisfy their claim and his fees. The objection of non-joinder, therefore, was not waived by omitting to raise it in the answer. The Code is imperative in requiring the presence of all necessary parties. (Code, § 122. Davis v. The Mayor, 2 Duer, 663. Shaver v. Brainard, 29 Barb. 25.)

X. As the court below very justly observes, “ the claim of the plaintiffs is most inequitable. This is an equitable action, and unless the plaintiffs show equities superior to those of the defendants, they cannot recover.”

No argument can be necessary to convince the court that the defendants are entirely innocent, and that the plaintiffs, to say the least, have been guilty of gross carelessness, the consequences of which should be visited on them.

Garvin, J.

If this had been a case of money paid under mutual mistake of facts, in respect to which both parties were equally bound to inquire, the money might have been recovered back, (Bank of Commerce v. Union Bank, 3 N. Y. Rep. 230;) but that is not this case. The defendants were not bound to make inquiry, nor were they mistaken in any fact. The defendants stood in the relation of plaintiffs enforcing payment against the property and effects of Blagge & Co. found in the hands of the plaintiffs in this action. The plaintiffs concede and admit this, state the amount of property, and by their receipt admit it was attached on the 16th January, 1866, and on the 25th of May paid over the amount to the sheriff, and he paid it to the defendants, less his fees. The defendants only knew of the legal steps taken to recover their demand, and were not bound to inquire how much property of Blagge & Co. was in the plaintiffs’ hands.

The mistake was solely that of the plaintiffs. It is said by Marcy, justice, in the case of Franklin Bank v. Raymond, (3 Wend. 67,) that it is a general principle of law that if a party pays money under a mistake of the real facts, without any negligence imputable to to him for not knowing them, he may recover such money. Can it be said that the mon ey in this case was paid without imputation of any negligence on their part for not knowing of their mistake ? We think not. The error was very gross, both in amount and the length of time it remained undiscovered. The consequences of this mistake must either fall upon the plaintiffs or the defendants.

There was certainly a want of ordinary caution and care in making* up and keeping the account existing between the plaintiffs and Blagge & Co. and upon this error the mistake of fact happened. It was in the plaintiffs’ books that the error occurred—not Blagge & Co.’s; but theirs, doubtless kept by clerks; but the plaintiffs are responsible for their clerks and their acts, and by them they must be bound.

It cannot be said, either, that it is against conscience for the defendants to retain the money. (Price v. Neale, 3 Burr. 1354.) If the defendants had been told the “real facts,” that the plaintiffs only had $900 in their .hands at the time the attachment was issued and shown the plaintiffs, there was-an abundance of property belonging to Blagge & Co. then in New York, and which afterwards came to the city, out of which the defendants could have made their debt. Now their judgment is satisfied, the judgment debtor insolvent, and their property disposed of without the fault of the defendants, but growing out of the mistake of the plaintiffs. Who is to bear the loss? We think it must fall upon the plaintiffs. The judgment should be affirmed, with costs.

Robertson, Ch. J. concurred

McCunn, J. (dissenting.)

Equity relieves from mistake, except fault be imputable to the party. . Anciently, a distinction was drawn between mistakes in law and mistakes in fact; and, while mistakes in fact were always held a sufficient ground of relief, mistakes in law were regarded as necessarily implying blame, on the maxim, “ ignorantia legis neminem excusat.” But this distinction, never resting on any solid foundation, and obviously productive of very great injustice, has, in latter times, been mitigated, if not repudiated by the courts, who, governed rather by considerations of substantial right, than by the compulsion of an-arbitrary and obsolete dogma, have adjusted their decisions to the equities of each particular instance. In the relation between attorney and client, the former is responsible only for gross error, and is 'excused, if he mistake on a doubtful point. Why, then, should a layman, who pretends to no technical knowledge of the law, be held to a responsibility from which the men of' the profession are exempt ? This court dispenses justice on the enlarged and liberal principles of equity jurisprudence; and, wherever it is made apparent that a party will suffer from- the consequences of an innocent mistake, I take it we are bound to afford him relief, if it can be done without detriment to the rights of others who have equal claim to the consideration of the court. Assuming the parties' to have equal equities, the question here is, will the defendants be injured by the correction of the mistake in this case ? a mistake about which there is no dispute, and from which, if not repaired, the plaintiffs will suffer loss. The payment to the sheriff, out of which the mistake arose, was not a voluntary payment, but a payment forced by the sheriff, under' and by virtue of his attachment. This is clearly shown by the deputy sheriff who made the levy,-and is also evidenced by the sheriff’s receipt, given to Duncan, Sherman & Co. which exhibits that the payment of the money was made under protest. Now, these circumstances preclude all idea of the money’s being paid voluntarily, or that any mutual mistake was made. Indeed, I look upon the receipt of the sheriff as an equitable agreement by the plaintiffs in the attachment to refund the money, if any mistake should thereafter be discovered. I am fully .sustained in my views in this respect by the case of Demesnil v. Dakin, decided in the Queen’s Bench, November 25, 1867, Lord Chief Justice Cockburn delivering the opinion. (Law Rep. 3 Q. B. 18.) The rule of law is well settled, that, to prevent money being paid back to the payer, it must appear to be paid with a full knowledge that it ought not to be paid. (8 Oowen, 195. 5 Sandf. 423.) In this case it is conceded, and the court below, in its fifth finding of fact, so holds, that the money was paid by the plaintiffs in mistake, and in ignorance of the fact that there was a mistake. This being so, the court will grant relief from a mistake, unless the party, against whom the relief is sought, will sustain injury by correction of the mistake; which is not the case here.. It is true that the court below find in the twelfth finding of fact, that the plaintiffs had, during the -life of the attachment, other property of Blagge & Co. in their hands, out of which they realized upwards of $2000 ; but this finding is not'sustained by any evidence in the case. The only proof on that point, is that of John B. Kitching, a witness for the plaintiffs, who says : “ I think it was ten bales of cotton and ten bags of wool,” which came to their hands, during the'operation of the attachment and before this action was brought; and the same witness testifies, that that shipment was made particularly against a certain specific draft, and could not be appropriated to any other purpose; and he says that the balance of that shipment, after paying that specific draft, was handed over to the sheriff. Nay, further, he states that all moneys and profits which came into the hands of Blagge & Co. (after paying said specific draft,) was paid to the sheriff. Now this is all the evidence in the case, as to property coming into the hands of Duncan, Sherman & Co. during the lifetime of the attachment or execution; and where the learned judge found the proof upon which to base his twelfth finding, I cannot discover. It is true, as I have said before, property came into the hands of the plaintiffs, during the lives of the execution and attachment; but this property was shipped against certain specified drafts, as I have shown, and could not legally be diverted to any other purpose. “ A factor,” says Mr. Justice Story, in his work on “Agency” (§ 368,) “is deemed for many purposes the owner of the property, especially where he has demands upon it for advances and debts.” The consignment of-the. property and advances made thereon by the consignees upon the credit of the consignment, will vest in the consignees the right of property, and the constructive possession also. (Dows v. Greene, 16 . Barb. 72.) Mr. Justice Monell, in the case of Shuttleworth v. Bruce, in a very able and learned opinion, states the fact that, where goods are shipped against a certain specified draft the proceeds cannot be diverted to any other purpose; and such was the doctrine established by this court in the case of Lowery v. Steward, (3 Bosw. 505,) which case .was affirmed in the Court of Appeals. (25 N. Y. Rep. 239.) The same rule of law was applied in Parker v. The City of Syracuse, (31 N. Y. Rep. 376.) Indeed, the authorities are so numerous that they have rendered the principle almost elementary. It is manifest, from the testimony in this case, that the goods of Blagge & Co. which came to the hands of the plaintiffs during the life of the attachment, were intended by the drawer of the draft to meet its payment in the hands of the drawees (the plaintiffs;) and that the draft accompanying the bills of lading operated as an assignment for that purpose; and that the goods or the proceeds thereof could not be diverted by the plaintiffs to any other object. This being so, then there is no evidence in the case that any property came into the hands of the plaintiffs belonging to Blagge & Co. during the life of the attachment, which could be applied, and which was not applied, to the benefit of the defendants; consequently, they were not injured in any way by the negligence, delay, or laches, of the plaintiffs; and will not be affected in any legal right by a correction of the mistake, of which a remedy is sought in this action. A new trial should be ordered.


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

text:
    David Dows and others, plaintiffs and appellants, vs. The Howard Insurance Company, defendants and respondents.
    1. Where “ ice ” is excepted from the perils enumerated in a policy of insurance, as those assumed by the insurers, upon a cargo of a vessel described therein as “lying in the port of New York,” the latter are not liable for a loss occasioned by such peril to the cargo while such vessel was being fastened to a pier in the East river in the city of New York, just after having been towed from her previous berth in the Hudson river, although the enumerated perils were declared in the policy to be those “ on said trip or voyage, or while lying up as aforesaid,” without any mention in such policy of a trip or voyage of any kind; and a mere permission was given in such policy to tow such vessel “ from place to place in New York harbor.”
    2. The loss in such case must be deemed to have occurred while the vessel was “lying up,” within the meaning of the policy, and therefore as not'having occurred so as to make the underwriters liable.
    3. The introduction of a written clause, in a policy upon a vessel in a port, specifying, the perils insured against, confines the perils to those therein mentioned, and thus, modifies any more extensive ones embraced in the printed part of the policy.
    (Before Robertson, Oh. J., Monell and McCdnn, JJ.)
    Heard December 24, 1867;
    decided January —, 1868.
    Appeal from a judgment entered upon the report of a referee. The action was upon a policy of insurance of $3300, on a cargo of wheat. The facts established were as follows : On the 18th December, 1860, the appellants received from the- respondents a policy of insurance upon a cargo of wheat contained in a canal boat, [The W. H. Platt,) for one month only;- in which permission was given that the boat be towed from place to’place in New York harbor. It excepted theft, robbery, ice or barratry, from the perils, insured against. On the 14th of January, 1861, such canal boat, with the wheat on board, after having been towed from her berth in Jersey city, in the state of New Jersey, to a pier 36, East fiver, in New York harbor, while in the act of being fastened to the pier, was struck by ice and sunk. The boat received no injury, except from ice, and the injury to it caused thereby damaged the wheat to the amount insured in such policy. Other facts appear in the opinion of the court.
    The plaintiffs claimed that the boat on board of which the cargo was, when the loss occurred, was neither lying up nor on a trip or voyage within the meaning of the policy, but was being towed from place to place in Eew York harbor, as provided in the written portion of the policy, and that the exceptions did not therefore apply.
    The referee-held that the damage sustained by the plaintiffs from the loss and injury to the wheat was incurred from the peril of ice, which was excepted from, those insured against.- He therefore directed judgment to be entered for the defendants, and that the complaint be dismissed.
    Judgment being entered accordingly, the plaintiffs appealed.

      J. B. Burrill, for the appellants, plaintiffs.
    I. As such policies of insurance as that in question are prepared by underwriters, it is their duty so to frame them as to leave no doubt in regard to their construction, and they should be construed against the party by whom they have been prepared.
    1. The defendants in the present instance, prepared a policy in many respects inapplicable to the condition of the tow boat in which the property insured was laden, or to the circumstances of this particular case'; since the insurance was effected for a limited period of time, was confined to the harbor of Eew York; and yet speaks of navigating, making trips and voyages.

      2. It would be inequitable to allow this insurance company to screen itself from the payment of this loss on the ground that it has drawn its policy so badly, vaguely,“confusedly, and ambiguously, as to permit a construction which will destroy the very purpose and object which the insured desired to attain by effecting insurance.

      II. The insured desired to effect insurance on his cargo laden on this boat; it was not his intention that the boat should remain at her then present location, or that she should lie up there, or any where else; but that the boat should be towed from place to place in the harbor, and be insured, both while lying up, and while being towed from place to place. The company, therefore, in so many words, insured the plaintiffs for “ one month, $3300, on wheat on boat W. 3. Platt, lying at Jersey city,” which might “be towed from place to place in New York harbor.” This means an insurance on the cargo on the boat W. 3. Platt, not only while lying at Jersey city; but also while being towed from place to place in the harbor, and at whatever place in the harbor she may be, whether lying up at a dock, or at anchor in the stream. The words, “ said boat may be towed from place to place in New York harbor,” are in writing, (while the other portions of the policy are printed,) and according to well settled principles, must control. (Benedict v. Ocean Ins. Co., 31 3. Y. Rep. 389.)
    1. The counsel, for the defendants claims that the words, “said boat may be towed,” &c. are inserted merely to overcome the printed clause of the policy, which provides that the boats are not’ to be moved or towed from the place, where the boat is in the policy stated to be lying, without the written consent of the company. This is not so. The printed clause merely provides that the vessel’s berth shall not be changed without written consent, and is intended to apply to those cases only where vessels are insured only while lying up, i. e. at her berth. In such case, if consent were given to change the berth of the vessel, doubtless, if the vessel succeeded in changing her berth without accident, the policy would protect and cover her after she had reached the new berth, and so long as she remained there; but the company would not be liable for a loss sustained by such boat in transitu from one berth to another. The policy in question goes further; it is not restricted to insurance while lying up at the berth, (either that designated in the policy or such other as she may subsequently acquire,) but it insures the boat while being towed from place to place, not merely while going ftom one berth to another berth, but to any place in the harbor. If the plaintiffs had effected a sale of different parts of their wheat; to be delivered on board of different vessels in the stream, and of a third part, until the whole cargo was exhausted, this clause in the ■policy would cover it in each of these cases, and permit the boat to go from one vessel to another, and, after the whole cargo had been delivered, to return to the original berth at Jersey city,, or to any other berth in the harbor of New York. The written portions of the policy being therefore inconsistent with, and relating to other circumstances, and covering other conditions of things than those provided for in the printed parts of the policy, must control.
    2. The defendant’s counsel also claims that ice is one of the excepted dangers and perils insured against in this policy. The perils caused by ice being excepted from those ■ assumed by the company, “ while the said boat is on said trip or voyage, or while lying up, as aforesaid,” of course, the exception only takes effect in cases where the perils and dangers out of which ice is excepted, may be encountered. Such language as so used is, therefore, equivalent to saying,. that loss by ice will not be insured against, while the boat is on said trip or voyage, or while lying up, as aforesaid; which words are inapplicable to the case presented. There was no trip or voyage mentioned in the policy, and the words on said trip or voyage ” had no application, because no trip or voyage had been mentioned. This also shows that the printed part of the policy bears no application and is inappropriate, and that the written parts of the policy alone must govern.
    3. The boat in question was not on any trip or voyage, nor was it intended or designed that she should make any; none was specified in, nor could she make any under the conditions of, the policy. The boat was neither lying up at the time of the accident, nor on a trip or voyage at that time, in which cases alone, the exception of ice was to prevail. The clause of the policy which commences with the words “touching the perils,” and all other clauses controlled and governed by it, have no application, and may be excluded in applying the policy to this particular case. We contend that, not having application to this particular case, it may be entirely rejected, and, in that event, we must fall back upon the written portion of the policy. The written portion, whether taken by itself or in connection with other parts of the policy which are applicable to the case, will entitle us to indemnity for the loss for which we claim to recover.

      S. J. Scudder, for the respondénts, defendants.
    l. The policy is an ordinary port policy, as understood by merchants and underwriters, and carefully adapted to the exigencies of owners of vessels or cargoes lying in port at the time of insurance. It covers the risk while lying at a pier, and is so framed that permission may be given to move from place to place in port, without such moving, when assented to, being repugnant to any of the general provisions of the policy.
    II. The policy specially excepts from the perils insured against, theft, robbery, ice or barratry. The loss to the appellants was occasioned by ice, (an excepted peril,) and by no other cause.
    m. The loss thus occasioned by an excepted peril, it would seem, in the ordinary contemplation of things, should fall on the insured. The difficulty attending a recovery for such a loss, where no policy of insurance has been made, is no greater than that encountered in maintaining a claim to recover, where, although an insurance exists, it does not cover the cause of loss. It is, however, seriously contended, that, because permission was given to move the boats insured, the excepted peril of ice ceased to be excepted, and was insured against!
    IV. The permission to move the boats from place to place, in New York harbor, is, in no respect, repugnant to, or inconsistent with, any of the provisions of the policy, and especially is it not so with the provision excepting theft, ice, barratry, &c. The appellants accepted the policy as it is; paid the usual premium for insurance, where ice is excepted; received the usual permission to move their boats from certain places to certain places; did move them, and one was damaged by ice.
    1. The contract must be interpreted to give effect to all its provisions, and harmonize all its intents. It is obvious that the insured intended to move their boats ; that, at the time of insuring, they were lying at different points, laden with wheat. It provides for a trip or voyage, calls for anchors, cables and rigging, and compels lights while at anchor.
    2. The boats could not be moved without written permission. The insurers so prepared the form of policy to entitle themselves to regulate the mode and time of moving, and points from and to which the moving should be. If this permission had not been given, no question as to the peril of ice could have been raised. There is less danger from ice in a slip, when protected by the piers, than when in the stream. The underwriters refused to insure against ice, while the boat was in a slip, but gave permission for her to move in the stream, where greater danger existed; and, it is claimed, that thereby they assumed the risk, so carefully provided against in their policy.
    3. If this permission to move struck out ice from the exceptions, it equally struck out barratry; upon the theory of the appellants, had the master scuttled the boat while on the trip to pier 36, the insurers would have been liable. Indeed, upon this theory, no danger could have been excepted, no peril avoided by the insurers, if the permission to move were in writing.
    V. This is not a case which comes under the rule, that,where insurance is made upon property in a special business, everything necessary to that business is excepted from the conditions of prohibition. It is not necessary for a canal boat to be cut down by ice, or scuttled by her master, or her wheat stolen by river thieves.
   By the Court, Robertson, Ch. J.

The plaintiffs claim that the exceptions in the policy in this case, of injury by ice to the vessel, containing the subject of insurance from the enumerated perils insured against, did not apply to it, while it was being towed from place to place in the harbor of New York, as permitted by the policy. And they base such claim on the argument that both the enumeration of such perils and such exceptions therefrom, are only applicable while the vessel was either on some voyage or trip, or lying at the wharf, (towing from place to place in a har.bor being neither,) and that, being so inapplicable, the policy operated as a general contract of insurance against all perils usually insured against, upon vessels 'or their cargoes on the water, by .mere force of the words, “ do insure.” The defendants, on the other hand, contend that the words, “on said trip or voyage,” refer to the toiving previously spoken of, and, therefore, the injury to the vessel by ice, while being so towed, came directly within the exception of perils from those enumerated as being those against which the insurance was made.

I am compelled to differ with the learned counsel for the parties somewhat, as to both positions taken by them, notwithstanding the ingenious reasoning by which they were sustained, as well as from the reasoning of the learned referee, in the opinion accompanying his report. I would find it difficult .to arrive at the conclusions that the general expression of towing a vessel about a harbor is either navigating it, within the meaning of the policy, or a trip or voyage, according to the received meaning of those words. But in this case the towing was not made the main predicament in which the vessel was to be, while insured, but,, if any thing, it was rather to be while lying at the wharf. It was, in terms. and in fact, an exceptional permission to change the location of the subject insured, without vitiating.the insurance, and required the written consent of the company before such change could be made, unless the-two clauses are irreconcilable, and the written is to control the printed. An insurance of the cargo of a vessel on a voyage, which was not to be undertaken without the written consent of the underwriters, would be either a nullity, or, at most, a mere proposal for a contract. But it would not be so in regard to merely occasionally towing a vessel insured for some fixed period, as in this case. The terms, “navigation,” “ navigating,” “ voyage or trip,” in this form- of policy, are evidently intended for vessels which are in the course of being propelled from one port to another, and while the printed part of it seems to be adapted to a vessel, either while on such a voyage, or lying at a wharf to be discharged, the greater portion of its stipulations referring rather to the former. I do not see, therefore, any peculiar fitness in terming it a port policy only. The introduction of the written clause in the one in question, undoubtedly confined the perils insured against to those while the vessel was in port, and thus modified the more extensive ones embraced in the printed part of the policy, and rendered many of its stipulations superfluous.

The mere failure, however, to describe any voyage or trip in the policy, within the meaning of those words, as used in it, could not alone render the enumeration of perils insured against, and the exception therefrom of injury by ice, inapplicable to the vessel in question while being towed. The words “on said voyage or trip ” maybe rejected as surplusage, except so far as they tend to explain the meaning of the alternative phrase, “ or while lying up as aforesaid,” and still the defendants be protected by the exception. The object of the policy was evidently to insure the cargo in question while in the port of Hew York. The entire phrase, “ on said trip or voyage, or while lying up, as aforesaid,” by making such conditions as the only alternatives, evidently meant to comprehend every possible condition in which the vessel containing the-subject of insurance could be placed while in that port. She was either to be.engaged in navigation or laid up. The meaning of the word lying, as used in the enumeration of the perils, is not necessarily confined to mere inertness of position, joined, as it is, with the proposition “ up,” but embraces the idea of a change from a prior state of activity to one of repose. In this case it meant a cessation of active ¿navigation, malting trips or voyages from port to port. The vessel in question did not cease to lie up whenever she was towed from place to place in the harbor, any more than if she. lay at .the wharf; lthough, for greater caution, the privilege of towing was expressly reserved. At all events the two conditions were not irreconcilable. She ceased to be in active^ service as a vessel capable of being navigated, and was kept as a mere floating warehouse, or receptacle for merchandise, to be towed or transported while afloat by external power, but even then only with the defendants permission. The words “as aforesaid’’ also included not only lying up while at a wharf, but also while being towed about the harbor. I conclude, therefore, that the vessel was injured by the excepted peril, ice, while she vyas 11 lying up, as aforesaid,” within the meaning of the policy, and that, therefore, the defendants were properly held not to be liable.

The difficulty with the position taken on behalf of the plaintiffs, is that they can only succeed by establishing that, as matter of fact, a vessel, while being towed, was neither making a trip or voyage nor lying up, within the meaning. of the policy, but in a predicament to which neither description would apply—that of being towed—and that, as matter of law, the previous general words of insurance insured against all perils usually insured against on the water. I have already dealt with the first, and the last is not sustained by any authority or writer, English or American, on the subject of insurance. On the continent of Europe, where the civil law or its modifications prevail, usage or positive enactment has defined all the perils insured against, and there is no need of inserting them in a policy. But I have not been able to find any authority that, in Great Britain and this country, claims that any perils are insured against other than those enumerated in the policy, and any necessarily or usually consequential ones.

The judgment must, therefore, be affirmed, with costs.


text:
    Alexander Irvin, plaintiff and respondent, vs. Jonathan O. Fowler, impleaded, &c. defendant and appellant.
    1. The permanent maintenance of an aperture in the sidewalk o|. a public street, by the owners and occupants of an adjoining building, with whose interior it communicates by an underground passage; to he used by them occasionally and reasonably for the introduction of articles through the same into such building; does not necessarily become a nuisance, unless left in such a condition as to he dangerous to travelers on the highway, where the right to such maintenance and use has been granted by the owner of the laud used as a highway as an easement therein, in 'such manner as to be paramount to the easement of the public therein to use it as a highway. Per Robertson, Ch. J.
    2. The dedication or use of land as a highway is not necessarily so inconsistent with-the existence of such an easement therein as to extinguish it; and the owner of such land, whether the state or its representatives or a private individual, may grant such an easement to be enjoyed by a private person to he used by him, .so as not to interfere with the general use of such land as a highway.
    3. The ordinary rules of evidence of the -existence of a grant of an incorporeal hereditament are applicable to such an easement, and it may he established by prescription and presumptive evidence, such as an uninterrupted enjoyment for twenty years.
    4. The ownership of such an easement takes away from such aperture the character of a nuisance, so far as it makes its author or maintainor an absolute guarantor for the safety of all travelers on the highway, and leaves him simply hound to use proper precaution to protect them from injury by it.
    5. In the absence, however, of proof, of the time or author of the construction of such an existing aperture in a sidewalk, or of the persons by whom, the manner in which, and the period during which it had been used, the owners of the adjoining building, if liable at all, ave prima fade liable as absolute insurers of travelers from injury by such aperture, and are not exempt from liability by the exercise of any degree of care, where such injury has occurred.
    6. Every one who maintains or uses, or receives profits from the use of a dangerous construction on, or excavation in a public highway, whether such maintenance and use be legal or not, is bound to use the utmost vigilance and care to protect those traveling on such highway against injury from it.
    7. If any one either constructs or uses, or receives profit from the use of such an excavation or construction, he must, at his peril, keep it in such a condition as that the safety of travelers shall not be impaired by its being there. The sidewalk must be just as safe as if no such opening were there.
    8. In a joint action against the owner of premises and his tenants, to recover for injuries sustained by the plaintiff by falling into a coal hole underneath the sidewalk in front of the premises, by reason of the cover being left unfastened, proof that the owner received rent for the building, and that the tenants could have used such coal hole, without any thing to show that they ever had used it, it seems is sufficient to make the landlord, as well as the tenants, liable. Ter Robeetsox, Oh. J.
    (Before Robeetsox, Oh. J., and Monem. and,MoOuxx, JJ.)
    Heard December 10, 1867;
    decided March —, 1868.
    This was an appeal by the defendant Fowler from a judgment rendered against all the defendants. The action was brought to recover damages sustained by the plaintiff by falling into a coal hole in front of a house on Broadway, in New York, in October, 1863, against the defendants, the Woods, as tenants, and the defendant Fowler as landlord of the premises. On a former trial, the plaintiff’s complaint was dismissed when his evidence was closed. The dismissal was set aside at general term, and a new trial ordered. (See 4 Bob. 138.) ' The exceptions on the second trial arise upon the evidence given or offered by the defendants, and the rulings of the court at the close of the whole case. The defendant Fowler put in evidence an ordinance of the corporation of the city of New York, authorizing permission to be given to construct openings in the sidewalk; showed that the coal slide in question had been constructed a number of years; and gave evidence, tending to show that it had been constructed under a permit from the proper authorities, before he became landlord; offered to prove that it was properly constructed; and to give evidence that the accident happened by reason of the cover having been left unfastened after being used to put in coal. This defense was overruled, and the defendants excepted. At the close of the testimony, the counsel for the defendant Fowler requested, the court to instruct the jury that there was sufficient evidence to justify them in finding that this coal hole and cover were constructed by virtue of a permit from the proper authorities, and if so, that the defendant Fowler, (the landlord,) was not liable without proof of negligence. The court refused so to- instruct the jury, and the counsel for both defendants excepted. The counsel for the defendant Fowler also requested the court to direct the jury to find a verdict for the defendant Fowler. • The court refused so to instruct the jury, and the counsel for said defendant excepted. The counsel for the defendant Fowler also requested that the court allow the jury to find a separate verdict in reference to the amount or proportion of damages for the plaintiff’s injury; which the jury thought the landlord and the tenants oyght severally and respectively to pay. • The court refused such request, and the counsel for both defendants excepted. The counsel for the defendants "Wood moved to dismiss the complaint, on the grounds already stated, and the other additional ground, that it did not appear, that the coal hole was a part of the premises occupied by the Messrs. Wood. The Motion was denied, and the counsel for the defendants Wood excepted. The counsel for the defendants Wood then requested the court to instruct the jury that they were at liberty, if in their judgment the evidence would warrant it, to find a verdict against the landlord and in favor of the tenant. The court refused so to instruct the jury, and the counsel for said defendants excepted. The counsel for the defendant Fowler then asked the court to direct the jury to find a verdict for the defendant Fowler, upon the additional ground that the sidewalk belonged to the mayor, commonalty and aider-men of the city of Eew York, in fee, and that there was no evidence that it was ever let by Mr. Fowl.er as an appurtenant to the premises in question. The counsel for the defendants, the Woods, made the same request on behalf of those defendants. The court refused such request, and the counsel for the defendants excepted.

      S. P. Nash, for the appellants, defendants.
    I. Long existence of such a privilege in a public highway is of itself evidence of license by the proper authorities. This slide had existed over twenty years. This, with the further evidence that a department of the city government is expressly authorized to grant licenses for such privileges; that they exist in all the streets and in front of nearly every house in the city, was sufficient, with the proof of the probable loss of the record of the license in question, to justify the jury in finding that it had been originally constructed by authority of law. (Chicago City v. Robbins, 2 Black, 418, 423. Creed v. Hartmann, 29 N Y. Rep. 591, 597.) If so, it was not a nuisance, unless negligently built or maintained. (Leigh v. Westervelt, 2 Duer,. 618, 621. Bellinger v. N. Y. Central R. R. Co., 23 N. Y. Rep. 42. Selden v. Del. and Hud. Canal Co., 29 id. 634, 642.)
    II. If,"in addition to this, the accident happened from the negligence of some third person in leaving the hole uncovered, and without any negligence on the part of the defendant Fowler, it is difficult to see how the-judgment against him can be sustained.,
    TTT. The other points involved, not being open for discussion in this, court, are not particularly stated; they appear in the exceptions.

      Gf-eo. C. Barrett, for the respondent, plaintiff.
    I. The defendants insisted that the damages might be severed, and that the jury might mulct the respective defendants, in different amounts, according to the degree of culpability attaching to each. The learned justice held otherwise, and the defendants excepted. The ruling was clearly right, and it has been so settled by the court of last resort. (Beal v. Finch, 1 Kern. 128.)
    1. The rule is, that where several persons are jointly charged in an action of tort, and they either plead jointly or sever in their pleas, or one suffer judgment to go by default, if the jury assess several damages, the verdict is Wrong, and the judgment will he erroneous. (Sedgwick on (Damages, p. 623, 3d rev. ed. marg. p. 584. Salmon v. Smith, 1 Saund. 207, n. 2. Hill v. Goodchild, 5 Burr, 2790. Mitchell v. Milbank, 6 T. R. 199. Brown v. Allen, 4 Esp. 158. Bohun v. Taylor, 6 Cowen, 313. Wakely v. Hart, 6 Bin. 316, 319. Bostwick v. Lewis, 1 Day, 34. Crawford v. Morris, 5 Grattan, 90. Halsey v. Woodruff, 9 Peck, 555.) The verdict should be for the amount which the most culpable ought to pay. (Aame cases.)
    2. In some cases of joint trespass where the jury have improperly severed the damages, the plaintiff has been permitted to enter a joint judgment against all, assuming the largest sum assessed against any one as the damages against all.) Fuller v. Chamberlain, 11 Metc. 503. Bell v. Morrison, 27 Misc. 68. Hair v. Little, 28 Ala. Rep. 236.) The doctrine that the damages are indivisibles was recognized in Bulkley v. Smith, (2 Duer, 261.) It was only doubted whether, in case the jury should perversely sever, the court would permit a judgment against all for the largest sum assessed. (And see 1 Duer, 643.)
    2. These rulings were in cases of torts, where exemplary damages were allowable. A fortiori, in a case like the present, where only compensatory damages are sought. The plaintiff here did not seek to punish the defendants. He merely sought to be compensated for his loss and sufferings, and he -could recover neither more nor less than compensation.

    II. The only other new exception was that respecting the permit claimed to have been obtained from the proper authorities to construct the coal hole; the ruling upon which was perfectly correct, for several reasons:
    1. It made no difference, so far as the defendants’ liability was concerned, whether the coal hole was originally constructed under a permit or not.
    2. The liability under the decision of the general term was put upon the broad ground that the coal hole was a nuisance; quite irrespective of the question of the authority for its original construction.
    3,. But were it otherwise, there was not a particle of evidence that any such permit had ever been granted.

      (a.) The original permit was not produced, nor was any evidence given respecting it. The only evidence on the subject at all was that of Fowler, who went to the street commissioner’s office, and was there told by some one (who, for ought that appears, was not even connected with the office,) that the books had been taken away by Mr. Devlin or Mr. Conover and had not been returned. This was mere hearsay, and would have- been wholly insufficient, even if that some one had been produced and testified to the same facts.
    (5.) Certainly, even if it were established that the books had been lost, or could not be found or produced, that does not establish the fact that the license was given. It rather tends to show the difficulty of proving the alleged fact.
    (<?.) The license was not, therefore, proved, nor would it have been in the least material, even if fully established.
   By the Court, Robertson, Ch. J.

The principles, on which the learned justice before whom the issues of fact in this action were tried, held all the defendants to be liable, are best given in his own words, as used in his charge to the jury, which were as follows :

“ The court places the ground of the liability in this case upon the duty which devolves upon any one, who uses.or receives profits from a dangerous construction or excavation placed in a public highway, (over which every one has aright to travel,) to protect the public from accident; and it says, that if any one either constructs or uses, or receives profit from the use of, such an excavation or construction (which is called in law a nuisance) he must, at his peril, keep it in such a position as that the safety of the traveler shall not be impaired by the fact of its being there. The sidewalk must be just as safe as if the thing had not been there. It is at their peril to keep it so, and it is upon that ground that this court has held these defendants are liable; the tenants as using it in putting in coal; the landlord, as having received rent for the use of it; and it is because the action is based and sustained on that ground, that all evidence of carelessness on the one side, or of good or bad construction, so far as the landlord is concerned, on the other, has been excluded, their liability resting on the above broad ground.”

I am as unable now, as I was when this case was formerly before this court, at general term* (4 Rob. 138,) to-perceive how the defendant Fowler could be charged with receiving rent for the use of the aperture in the street, which communicated with the building, of the lease of which he was assignee, when there was neither evidence to show that it was an appurtenance of such building, nor did such lease which was under seal, demise it as a separate easement or right. There was, it is true, an attempt on the part of the defendant Fowler to prove that it was such an appurtenance, by showing that it was constructed under a permit from the city corporation, but the evidence was excluded on the objection of the plaintiff. So that the evidence against both the landlord and tenant consisted simply of proof that the former received rent for the building, in front of which such aperture was situated, and that the tenants of such building could have-used it, without any proof they ever had used it. The defendant Fowler himself, never demised any thing to such tenants ; he acquired the relation of landlord solely by being the assignee of a longer term, from those under whom such tenants held. But such proof having been held sufficient to make the landlord (Fowler) as well as the tenants liable, when this case was formerly before the general term, I am bound by that decision to-hold the same proof sufficient on the present occasion.

Evidence sufficient to have established that such an aperture was an appurtenance to the adjoining land, and the use of the buildings on it, would have also established a legal 3’ight to the use of it. The legal right to the .occasional and reasonable use of such an aperture on the highway is not a legal impossibility. The state or other owner of the soil of the highway could grant it, or it might have existed before the land was appropriated for a highway and have been reserved by such appropriation. It is not necessarily a nuisance because it exists in the soil over which the highway passes; otherwise excavations spanned by bridges, or the cavities of culverts or drains, would be equally nuisances. It becomes a technical nuisance only when it is so insufficiently covered and guarded, that a traveler in the exercise of the public easement of passing over the highway is injured by it by falling into it or otherwise. (Leigh v. Westervelt, 2 Duer, 618, 622. Bellinger v. N. Y. Central R. R. Co., 23 N. Y. Rep. 42. Selden v. Del. and Hudson, Canal Co., 29 id. 634, 642.) While it has a sufficient covering and protection over it to prevent such accidents, its creation and existence becomes and remains simply a trespass on the soil, over which the highway passes, for which its maker or sustainer is liable to the owner. There is therefore no restriction on the right of the state or those who represent it, or its grantee, to grant such an easement to be, enjoyed by a private individual, provided the enjoyment by the public of the use of the highway is also so reasonably protected as to take away the character of a nuisance from such easement. Being a subject of grant, it is entitled to the application of the ordinary rules of evidence to establish the fact of such grant. And uninterrupted enjoyment for twenty years is presumptive evidence of it. (2 Starkie on Ev. 911, 3d ed. Greenl. Ev. 20, art. 17. Best on Presump. Ev. 103-111, and eases cited.) The ownership of such an ' easement, would take away from the maker of such an aperture the character of a trespasser, rendering him liable absolutely for the safety of all travelers, and render him the proprietor of a right, which would merely impose upon him the duty of using due diligence to protect them. In this case, however, there was no evidence when or by whom such aperture ivas constructed, or by whom, in what manner or how long it had leen used, before the year 1859. In other words, there was nothing to establish the duration of the grant, or its extent. If liable at all, therefore, the defendants were liable as insurers against injury, and not merely as. being bound to use ordinary care in the covering, construction and use of such aperture.

There was no proof of the existence of the grant of any permit by the city authorities. Proof of its loss was therefore inadmissible. All the exceptions to the exclusion of evidence, or refusals to charge, depended upon the same principle in regard to the defendants’ liability as absolute insurers, and were therefore, under the former decision of this court, properly excluded.

There could not be a severance of the defendants in regard to damages; they were sued and made liable as joint wrongdoers, and the amount of contribution to the injury, or malice by any one, was immaterial. (Sedgw. on Dam. 584, 3d rev. ed. p. 623.)

There being no error, the judgment should be affirmed, with- costs.